Ropafadzo Chibuswa v William Shumba and Registrar of Deeds

In December 2002, the first defendant (Shumba) approached Mrs. Addelah Chibuswa (acting for the plaintiff, her daughter Ropafadzo Chibuswa who was based in England) to sell his house at Stand 546 Empumalanga Township, Hwange for Z$3 million. The plaintiff paid a total of Z$3.5 million in three installments into the defendant's CABS and Intermarket accounts. The defendant vacated the property and moved to Bulawayo in early 2003. On 24 October 2003, the defendant wrote to Mrs. Chibuswa requesting her to pay arrears due to CABS to facilitate transfer of the title deeds to the plaintiff. Mrs. Chibuswa complied and also paid Z$66,000 for transfer fees. However, in January 2005, the defendant demanded an additional Z$60 million for the property, claiming the Z$3.5 million was only a deposit. Mrs. Chibuswa refused. While the matter was pending trial, the defendant sold the property to a third party in February 2013 for US$15,000. The plaintiff sued for specific performance to compel transfer of the property into her name.

• Whether the parties entered into a valid and binding oral agreement of sale
• What was the agreed purchase price for the property
• Whether the plaintiff paid the full purchase price
• Whether the parties intended the oral agreement to be binding or only binding once reduced to writing
• Whether the plaintiff is entitled to specific performance and transfer of the property

1. First defendant ordered to transfer Stand 546 Empumalanga Township, Hwange into the plaintiff's name within 10 days of the order. 2. Second defendant (Registrar of Deeds) directed to facilitate the transfer. 3. The Deputy Sheriff, Bulawayo authorized to sign all relevant transfer documents in place of the first defendant should he fail to do so within 5 days. 4. First defendant to pay costs of suit on attorney and client scale.

An oral agreement for the sale of immovable property is valid and enforceable in Zimbabwean law. The true intention of the parties to be bound by a contract is determined by examining their conduct, not merely their subsequent assertions. Where a seller receives full payment of the agreed purchase price, gives vacant possession, and subsequently requests the purchaser to settle outstanding mortgage arrears to facilitate transfer of title without mentioning any outstanding balance on the purchase price, the court will find that the parties intended to be bound by the oral agreement and that the purchase price was fully paid. The onus is on the party asserting that an oral contract was not intended to be binding until reduced to writing to prove that assertion. A party who sells property to a third party while litigation concerning that property is pending acts in bad faith and shows contempt for court proceedings, and such conduct will not defeat the rights of the original purchaser who has fully performed their obligations under the contract.

The court observed that the matter had been unnecessarily delayed, with at least five different law firms involved at various stages, with legal practitioners assuming and renouncing agency multiple times. The court commented that the defendant's conduct in selling the property to a third party while the case was pending 'smacks of wilful disregard for the law and total contempt of the court proceedings.' The court also noted that the defendant's letter of October 2003 concluded by indicating that 'life was better in the city of Bulawayo' - which the court observed was 'presumably because he was still enjoying the money he had received from the sale of the house.' The court remarked that the defendant 'intended to re-sale the same house twice to the plaintiff' and 'did not act with bona fides in the entire transaction.' While there was mention that the matter was reported to the police, the court noted that the outcome of that case was not revealed during the trial.

This case affirms important principles in Zimbabwean contract law regarding oral agreements of sale for immovable property. It reiterates that oral contracts of sale are valid and enforceable unless the parties specifically agree that the agreement will only be binding once reduced to writing. The judgment emphasizes that the court must determine the true intention of the parties from their conduct, not merely from their subsequent assertions. The case also demonstrates that a party who acts in bad faith by selling property to a third party while litigation is pending will not be allowed to benefit from such conduct. It confirms the remedy of specific performance is available for breach of oral contracts of sale of immovable property, and that the court can authorize the Deputy Sheriff to execute transfer documents where a defaulting party refuses to do so. The case also serves as a warning against attempts to renegotiate concluded contracts or to extract additional payments after performance has occurred.