Netsai Nhemwa v Fidelity Assurance Zimbabwe Private Limited

On 20 July 2015, the applicant and respondent entered into an agreement of sale for stand number 3884 of Fidelity Southview Park for a purchase price of US$14,400.00. Payment terms included a deposit of US$3,750.00 and monthly instalments of US$226.00 over 60 months with variable interest. By 3 July 2020, the applicant claimed to have fully paid the purchase price plus interest, totaling US$15,096.28. In March 2021, the respondent demanded payment of US$885.29 as accrued interest, threatening cancellation. The parties engaged in negotiations, and by the hearing dates in January and February 2022, they agreed that the outstanding purchase price had been paid. The only dispute remaining was whether the court should order the respondent to effect transfer of the property within six months.

• Whether the applicant had fully discharged her payment obligations under the sale agreement
• Whether the court should grant a declaratur ordering the respondent to effect transfer of the property
• What constitutes a 'reasonable period' for effecting transfer under clause 3 of the agreement
• Whether respondent's reliance on pending City of Harare approval and COVID-19 restrictions justified delaying transfer

1. The application was granted. 2. The applicant, having effected payment, was declared to have fully discharged her obligations towards payment of the purchase price of stand number 3884 of Fidelity Southview Park. 3. The respondent was ordered to immediately put in motion all processes required to effect transfer and to effect transfer of stand number 3884 Fidelity Southview Park into the applicant's name within six months from the date of the order. 4. Each party was ordered to bear its own costs.

Where a purchaser has fully paid the purchase price under an agreement of sale of immovable property, and the agreement obliges the seller to tender transfer within a 'reasonable period', the court has jurisdiction to determine what constitutes a reasonable period and to order specific performance with a defined timeframe. Six months constitutes a reasonable period for effecting transfer, even where municipal approval is pending and COVID-19 restrictions may cause some delay. A seller cannot indefinitely delay transfer by relying on conditions beyond its control where it has contracted to effect transfer within a reasonable time.

The court observed that the respondent's excuses (City of Harare approval and COVID-19 restrictions) were particularly unpersuasive given that the respondent had previously expressed willingness to settle the matter. The court noted that COVID-19 restrictions had been relaxed by the time of the hearing (February 2022), which was treated as common cause. The court also indicated that a seller's attempts to frustrate and prejudice a purchaser who has fully performed their payment obligations would not be tolerated by the court.

This case establishes important principles regarding the enforcement of property transfer obligations in Zimbabwe after full payment of the purchase price. It demonstrates the court's willingness to intervene and set specific timeframes for transfer where sellers attempt to delay transfer using vague excuses or conditions beyond their control. The judgment reinforces purchaser protection in property transactions and clarifies that 'reasonable period' for transfer can be judicially determined where parties disagree. It also shows that exceptional circumstances like COVID-19 restrictions or pending municipal approvals do not provide indefinite excuses for non-performance of contractual obligations to transfer property.