Paul Zisengwe v Luka Moyana

On 1 November 2006, the applicant (Paul Zisengwe) entered into an agreement of sale with the respondent (Luka Moyana) for the purchase of stand number 2485 Glen Lorne, Folyjon, measuring 8270 square metres. The applicant paid ZW$28,000,000.00 upon signing the agreement. The applicant believed the respondent held rights to the property which would be ceded by the City of Harare in terms of clause 3 of the agreement. In pursuit of cession, the applicant's legal practitioners wrote to the City of Harare's Director of Housing and Community Services on 31 March 2016. The City of Harare replied on 11 May 2016 stating their records did not reflect that the respondent had rights to the property and suggested confirmation be sought from the Surveyor General. The applicant was never able to have the property registered in his name. The respondent claimed he had purchased six residential stands from Sally Mugabe Heights Housing Co-operative, that land development had altered the land layout and numbering, and that he was disqualified from owning multiple stands and directed to cede them. The respondent's evidence was contradictory regarding whether he still held rights to the stand.

• Whether the agreement of sale should be declared null and void on the basis that the subject property does not exist
• Whether other parties (City of Harare, developers, co-operative, and the applicant's agent) should have been joined to the proceedings
• Whether there were material disputes of fact preventing resolution on the papers
• Whether non-payment of costs in previous withdrawn litigation prevented the present application from being entertained
• Whether the applicant was entitled to a refund of the purchase price on the basis of unjust enrichment

The court ordered: (1) The sale agreement concluded between the applicant and respondent in respect of stand 2485 Glen Lorne Folyjon on 1 November 2006 is declared null and void; (2) The respondent shall pay the applicant $112,500.00; (3) The respondent shall pay the applicant's costs.

An essential requirement in an agreement of sale is proper identification of the subject matter of the sale. Where the property that is the subject of a sale agreement cannot be proven to exist, and the local authority cannot confirm its existence in their records, the agreement of sale is null and void. In applications for declaratory orders declaring a sale agreement null and void, joinder of third parties such as developers, cooperatives, or local authorities is not necessary where the relief sought does not require them to comply with any order and the dispute is purely between the contracting parties (seller and purchaser). A claim that costs from previous withdrawn litigation must be paid before a new application can be entertained applies only to actions and not to court applications.

The court made sympathetic observations that the respondent was "a victim of being a litigant and his own lawyer" and that "his submissions were largely pedestrian on account of being a self-actor." The court also noted that if the respondent wanted evidence from third parties such as the developer or housing cooperative regarding the status of the stand, he should have secured their supporting affidavits rather than arguing they should be joined. The court observed it was difficult to ascertain whether stand number 2485 Glen Lorne Folyjon existed at the time the parties concluded the contract, but stated that as of the present moment there was no proof of the existence of the stand.

This case establishes important principles regarding agreements of sale in Zimbabwean property law, particularly in the context of cooperative housing developments. It affirms that proper identification of the subject matter is an essential requirement for a valid agreement of sale, and that where the property sold cannot be proven to exist, the agreement is null and void. The case also clarifies principles of joinder in contract disputes and the treatment of costs from previously withdrawn litigation. It demonstrates the challenges arising from land development alterations and the importance of proper record-keeping by local authorities and developers in cooperative housing schemes.