In 2013, Katuruza claimed he concluded an agreement of sale with Peta to purchase property at No. 152 Port Glen Road, Ryelands, Borrowdale, Harare for US$385,000. He alleged he took occupation and paid monthly installments of $2,000 against the purchase price, awaiting resolution of boundary issues. In April 2019, Peta's lawyers notified him to vacate the property. Katuruza resisted eviction claiming a sale agreement existed. Peta denied selling the property, asserting she leased it to Katuruza under a lease agreement signed on 3 January 2014. She claimed he stopped paying rent for two months, owed $4,000 in arrear rentals and $3,250 in rates. Katuruza's own email from 23 January 2016 proposed a purchase price of US$400,000 with a down payment of US$150,000, indicating negotiations were still ongoing and no concluded sale existed. Katuruza disputed signing the lease agreement.
The application was dismissed in its entirety. The counter-application was upheld in part, with paragraphs (a), (b), (c) and (d) of the counter-application draft order granted, but paragraph (e) relating to furniture expunged with Peta's consent. Costs were awarded against Katuruza.
1. Courts cannot make contracts for parties; they can only interpret and enforce existing contracts that parties have freely and voluntarily entered into (principle of sanctity of contracts). 2. Where material disputes of fact exist that cannot be resolved on the papers without hearing further evidence, the court may dismiss the application rather than refer the matter to trial, particularly where the applicant persists despite being aware of the disputes. 3. A contract of sale must be clear and unequivocal; it cannot be proved in a roundabout manner through notations on payment slips or assertions contradicted by the party's own contemporaneous communications and pleadings. 4. An applicant for an interdict must possess a right - real or personal - in the property; possession of such a right is a sine qua non for an interdict. 5. An owner of property is entitled to recover it through the common law remedy of rei vindicatio by proving: (a) ownership; (b) the property's continued existence and the respondent's possession; and (c) that possession is without the owner's consent.
The court observed that Katuruza wasted the court's time by persisting with a matter he knew required viva voce evidence for its resolution after receiving notice of opposition disclosing material disputes of fact. The court noted that the manner in which Katuruza couched his draft order 'leaves a lot to be desired' as it sought to have the court make a contract for the parties, including authorizing the Sheriff to sign documents to effect a sale at a stated price - relief the court characterized as seeking to have it perform a function not within its duty. The court cited the principle that 'nothing flows from nothing' from Macfoy v United Africa Co. Ltd, noting that a non-existent agreement is a nullity from which nothing can flow.
This case reinforces fundamental principles of Zimbabwean contract law and civil procedure. It emphasizes that courts cannot create contracts for parties but can only enforce existing agreements, upholding the principle of sanctity of contracts from Book v Davidson. It demonstrates the proper approach when material disputes of fact arise in motion proceedings - applications should be dismissed or withdrawn in favor of action proceedings requiring viva voce evidence. The case illustrates the distinction between real and personal rights in property, and confirms that the common law remedy of rei vindicatio is available to owners to recover property from those holding it without consent. It also shows that self-serving assertions contradicted by documentary evidence and a party's own pleadings will not establish a contract.