Maxmus Hakunavanhu Savanhu v Magnet Marere N.O. and Others

The appellant and the late Robert Mubayiwa Marere entered into a written contract on 30 October 1998 for the sale of Stand 151 of Plot 216 of Good Hope Township for $230,000. The contract provided for two alternative methods of payment under Clauses 12 and 7. Under Clause 12, payment was to be made in instalments: $50,000 on signing and the balance of $180,000 at $30,000 per month commencing 1 July 1998, to be completed by 30 December 1998. Under Clause 7, the purchaser could pay the full purchase price or furnish a bank guarantee within 14 days against transfer. No payment of $50,000 was made on signing the agreement on 30 October 1998. Prior payments of $50,000 and $30,000 were made to ERS Realty on 21 May 1998 and 31 July 1998 respectively, but for a different stand designation (Stand 21G). Between March and October 1999, the appellant made five payments of $30,000 each to Messrs Manase & Manase (the seller's conveyancers), credited to an entity called NYIKA Engineering. The seller died and his widow became executrix dative. She denied the estate received any payments and stated the deceased repeatedly told the appellant he had not received the purchase price. The appellant applied for an order of specific performance to compel transfer of the property. The High Court dismissed the application with costs, finding the appellant breached Clause 12(2) by paying instalments to Messrs Manase & Manase instead of ERS Realty.

• Whether payment of instalments to the seller's conveyancers (Messrs Manase & Manase) instead of to ERS Realty constituted a breach of Clause 12(2) of the agreement of sale
• Whether the appellant had performed his own obligations under the contract or was ready, able and willing to perform so as to entitle him to claim specific performance
• Whether disputes of fact in motion proceedings could be resolved in favour of the appellant applying the Plascon-Evans rule
• Whether the court should exercise its discretion to grant specific performance in the circumstances

The appeal was dismissed with costs.

A party seeking specific performance of a contract must first establish that he has performed all his own obligations under the contract, or that he is ready, able and willing to perform his side of the bargain. A plaintiff cannot ask for specific performance unless he has either performed his part of the contract or has been prevented from doing so by the defendant. A party who by his own conduct has materially defaulted in performance or breached the contract disentitles himself to claim specific performance. In motion proceedings where there are disputes of fact, final relief can only be granted if the facts stated by the respondent together with the admitted facts in the applicant's affidavit justify such an order (application of the Plascon-Evans rule). The court will not decree specific performance where the plaintiff has himself broken the contract or made a material default in performance on his part.

The Court observed that Clause 12(2) of the agreement, relating to payment of the balance of the purchase price, was silent as to whom payment was to be made, and therefore payment had to be made to the deceased (the seller). Payment to the seller's conveyancers (Messrs Manase & Manase) would not necessarily be in breach of contract provided the appellant ensured the deceased actually received the money. The Court noted that while a plaintiff always has the right to claim specific performance of a contract which the defendant has refused to carry out, it is in the discretion of the court either to grant such an order or not. The Court commented that the two alternative payment methods under Clauses 7 and 12 were so different that the parties must have intended the purchaser to choose which method to follow and be bound by those terms.

This case is significant in Zimbabwean (and by extension South African) contract law for reinforcing several important principles: (1) the fundamental principle that a party seeking specific performance must first prove performance of his own contractual obligations or demonstrate readiness, ability and willingness to perform (the reciprocity principle); (2) the application of the Plascon-Evans rule in motion proceedings involving disputes of fact, requiring courts to accept the respondent's version unless shown to be patently false; (3) the strict evidentiary burden on a party claiming specific performance to prove compliance with contractual payment terms; (4) that while specific performance is a right in appropriate cases, courts retain discretion to refuse it where the applicant has breached material terms or failed to perform his own obligations. The case illustrates the practical difficulty of obtaining specific performance through motion proceedings where payment is disputed and documentary evidence is ambiguous or incomplete.