Nashe Family Trust v Charles Chiwara and Others

The applicant (Nashe Family Trust) entered into an agreement of sale dated 28 August 2017 with the first respondent (Charles Chiwara) to purchase Stand Number 98 Philadelphia Township measuring 7,343 square meters held under Deed of Transfer No 4266/99. The full purchase price was paid to the first respondent's legal practitioners. The property was originally subject to a divorce order (HC 4271/07) dated 21 June 2012 between the first and fourth respondents, which ordered that the property be donated to their children (sixth and seventh respondents). The fourth respondent (Barbara Chivandire) had unlimited right to occupy the property with the children. Transfer was not effected, leading to this application for specific performance. Multiple parties claimed interests in the property, including the Chiwara Family Trust (fifth respondent) and Patrick Mavhura (eighth respondent) who claimed to have purchased from the fifth respondent. The first respondent raised points in limine challenging the validity of the sale agreement on the basis that a trust has no legal capacity to contract.

• Whether a trust has legal capacity to sue and be sued in court proceedings
• Whether a trust can enter into a valid contract or agreement of sale
• Whether a trustee acting in his nomine officii capacity can validly represent a trust in contractual matters
• Whether a point of law regarding legal capacity can be raised at the hearing stage
• Whether a party can approbate and reprobate by accepting benefits under a contract and then challenging its validity
• Whether the agreement of sale was validly terminated
• Whether the agreement was entered into in contempt of court

1. The point in limine regarding the alleged invalidity of the sale agreement between the applicant and the first respondent is dismissed. 2. The points in limine that the agreement was cancelled and can no longer be sued upon is a matter of substance to be determined with the rest of the merits of the application. 3. The point in limine that the agreement of sale was entered into in contempt of court is a matter of substance to be determined with the rest of the merits of the application. 4. The point in limine that the eighth respondent has no cause of action since he purchased the property from a non-owner is a point of substance to be determined with the rest of the merits of the application. 5. The costs of the hearing of 3 August 2022 at which the points in limine were argued are reserved for determination in the final judgment.

1. A trustee acting in his nomine officii capacity can validly institute legal proceedings on behalf of a trust, and Order 8 of the High Court Rules 1971 permits associates (including trustees) to sue and be sued in the name of their association. 2. Where parties have entered into a contract with full knowledge that one party is acting as trustee on behalf of a trust arrangement, and where the party challenging capacity has received and utilized the benefits of that contract, that party cannot subsequently challenge the validity of the contract on the basis that a trust lacks legal capacity to contract. 3. To allow such a challenge would constitute impermissible approbation and reprobation - a party cannot accept benefits under an agreement and simultaneously dispute its validity. 4. The legal principle that a trust cannot contract must be applied contextually by examining what the parties understood about each other's capacities and identities when entering into the agreement, rather than through mechanical application divorced from the factual matrix.

The court noted that points of law can be raised at any stage of proceedings, even on appeal, as long as the point is covered in the pleadings and involves no unfairness to the opposing party. The rationale is to enable the court to have all necessary information to make a proper decision, particularly on serious issues such as jurisdiction or legal capacity. The court also observed that while prior notice of intention to raise a point of law should be given to allow the opposing party to prepare, where counsel is able to address the point without seeking a postponement and no prejudice is demonstrated, the point may be properly dealt with. The judgment contains extensive discussion of trust law principles for contextual purposes, noting that trustees hold property for the benefit of others, but emphasizing that the practical realities of commercial transactions involving trusts must be recognized by the courts.

This case is significant in Zimbabwean law for clarifying the legal status and capacity of trusts in litigation and contractual matters. It affirms that while a trust is technically a legal arrangement and not a juristic person, trustees acting in their nomine officii capacity can validly represent the trust in legal proceedings and contractual transactions. The judgment reinforces the doctrine against approbation and reprobation, preventing parties from accepting benefits under a contract while simultaneously challenging its validity. It also clarifies procedural rules regarding the raising of points in limine and the application of Order 8 of the High Court Rules relating to proceedings by or against associations including trusts. The case provides practical guidance on how courts should examine the substance and circumstances of contractual arrangements involving trusts rather than applying formalistic interpretations that would undermine commercial certainty.