On 29 August 2008, the applicant visited the second respondent's showroom and saw an Isuzu KB 250 vehicle on display. He dealt with Harris Kufunga and Shadreck Dzapasi, whom he believed to be directors of the second respondent. He agreed to purchase the vehicle for $112,000.00 to be paid by RTGS, concluded an agreement of sale, paid the purchase price, and took delivery. On 14 November 2008, police officers attended on him and advised that the vehicle had been reported stolen by the first respondent, who was the registered owner. The applicant surrendered the vehicle to police. The first respondent's version was that on the evening of 29 August 2008, one Dzapasi came to his residence and begged to take the vehicle to show a client, assuring him the second respondent would not be involved in any sale. The first respondent retained the registration book and number plates, expecting to negotiate price himself. He never authorized the sale and reported the matter to police when he learned of the alleged sale.
The application was dismissed with costs.
An applicant must make out their case in the founding affidavit and cannot introduce new legal bases for relief in subsequent pleadings or heads of argument. To claim relief arising from a contract against a party, the applicant must allege and prove the existence of a contract with that specific party. Where an applicant seeks to establish that a party acted through an agent, the factual basis for the agency relationship must be properly pleaded and proved. A party cannot succeed in a claim for specific performance or transfer of property rights without establishing both the existence of a valid contract and proof of performance of their own obligations under that contract (including payment of the purchase price).
The court made observations that the first respondent's explanation as to how the vehicle came to be displayed in the second respondent's showroom "raised eyebrows" and appeared questionable, particularly noting the coincidence that a letter demanding payment for a previous vehicle sale was written on the same day as the alleged transaction. However, the court emphasized that "he who avers must prove" and since the applicant failed to file an answering affidavit, the averments in the opposing affidavit had to be accepted as true, regardless of how "ridiculous they appear."
This case illustrates important principles regarding locus standi in contractual disputes, the necessity of properly pleading one's case in founding affidavits rather than in subsequent pleadings or heads of argument, the burden of proof in establishing agency relationships, and the requirements for proving payment in commercial transactions. It reinforces that a person seeking specific performance or relief arising from a contract must establish the existence of a contract with the party against whom relief is sought.