Pondai Mushambadope v Champion Constructors (Pvt) Ltd and The Registrar of Deeds

On 15 June 2011, the applicant and first respondent entered into a written agreement for the sale of Stand 1195 of Hilton of Subdivision A of Waterfalls, measuring 2040 square metres, for US$20,500. The purchase price was to be paid to Rainer Robinson Trust Account: US$20,000 upon signing and US$500 within thirty days. The applicant paid US$20,000 on 16 June 2011 and US$500 on 21 June 2011 into the Rainer Robinson account as stipulated in the agreement. Thereafter, the first respondent refused to sign the necessary documents to effect transfer of title. The first respondent claimed it cancelled the agreement because Robinson and Makonyere (successors to Rainer Robinson) did not transmit all the money to it. Robinson and Makonyere had distributed the funds according to the first respondent's instructions: US$1,000 to estate agent, US$5,800 to Mr Mafuso, US$1,500 to Mrs Ruzive, US$250 for rates, US$2,050 for endowment provision, US$8,375 directly to first respondent (received by its employee), and US$3,825 held in trust pending transfer.

• Whether the applicant had discharged his obligation under the contract by paying the full purchase price to Rainer Robinson legal practitioners as stipulated in the agreement
• Whether the first respondent had validly cancelled the agreement of sale
• Whether the applicant was entitled to specific performance of the contract
• Whether costs on an attorney-client scale were justified

1. The first respondent, through its representatives, is ordered to sign all documents necessary to register transfer of Stand 1195 of Hilton of Subdivision A of Waterfalls in favour of the applicant within forty-eight hours of the order being granted, failing which the Sheriff or his assistant is directed to sign all such documents necessary to register the property in the name of the applicant. 2. Costs of suit to be paid by the first respondent on an attorney-client scale.

Where a contract of sale prescribes that payment be made to conveyancers' trust account, the purchaser discharges his payment obligation by making payment to that account as stipulated, regardless of disputes between the seller and the conveyancers regarding distribution of funds. A party to a binding contract who has performed his obligations is entitled to specific performance from the other party. Cancellation of a contract must comply with the contractual procedure; where a contract requires written notice and opportunity to remedy a breach, cancellation without following that procedure is invalid. Averments in affidavits that are not disputed must be taken as admitted.

The court noted that the relationship between the first respondent and Robinson and Makonyere legal practitioners regarding the distribution of funds was a matter between them and did not affect the applicant's rights. The court observed that had the first respondent signed the transfer documents when called upon to do so, it would have received the money held in trust by that time. The court commented on the falseness of the statement in the opposing affidavit that no statement was received from Robinson & Makonyere, as evidenced by correspondence showing the first respondent had received and accepted an account of the fund distribution.

This case confirms important principles in Zimbabwean contract and property law regarding specific performance and payment obligations. It reinforces that when a contract prescribes a specific method of payment (in this case payment to conveyancers' trust account), the purchaser's obligation is discharged upon making payment as stipulated, regardless of subsequent disputes between the seller and the conveyancers. The case also illustrates the application of the rule that undisputed averments in affidavits must be taken as admitted, and demonstrates when courts will award costs on an attorney-client scale for vexatious defenses. It emphasizes the binding nature of 'whole agreement' clauses and strict compliance with contractual cancellation procedures.