The second defendant owned Stand 9568 Budiriro 5B, Harare. In 2004, the first defendant (Maria Shangu), who was customarily married to Exavier Muwalo, negotiated to purchase the stand from the second defendant on behalf of her husband who was in Ireland. Her husband sent money for the purchase, but the agreement of sale was entered into in her husband's name only, not hers. She paid the purchase price and developed the property, including building a cottage and erecting a durawall, taking occupation in February 2005. Cession was not yet effected because council development requirements had not been met. In 2007, her husband abandoned her and in 2014 threatened to evict her. He then arranged with the second defendant to sell the same property to the plaintiffs for US$12,700. The plaintiffs paid a deposit of US$11,000 and obtained a default judgment against the second defendant when he failed to defend, compelling him to cede rights upon payment of the balance of US$1,700. The plaintiffs paid this amount and obtained cession. They then sought to evict the first defendant who remained in occupation.
1. The first defendant and all those claiming occupation through her are evicted from Stand 9568 Budiriro 5B, Harare within 14 days of the order. 2. Each party bears its own costs.
The doctrine of privity of contract provides that contractual remedies are enforceable only by or against parties to a contract, and not third parties, since contracts only create personal rights. A person who acts as an agent or representative in negotiating a contract cannot claim personal rights emanating from that contract if they are not named as a party to it. Being married to a person who is a party to a contract does not automatically confer privity of contract on the spouse by virtue of marriage, whether customary or civil. A person who is not a party to a sale agreement has no locus standi to challenge a subsequent sale of the same property by the original seller. A purchaser who has obtained cession of rights and interest in property through a court order is entitled to evict occupiers who have no legal basis for their occupation.
The court observed that the first defendant was in a difficult predicament, having genuinely believed she had rights to the property by virtue of her marriage and her substantial contributions to acquiring and developing it. The court noted she had played a very active and crucial role in finding the stand, facilitating the agreement, developing the property, and maintaining it while her husband was abroad. The court commented that she was "in this whole mess because of" her husband who had abandoned her in 2007. The court distinguished the case from matrimonial property distribution under s 7 of the Matrimonial Causes Act [Chapter 5:13], noting that the matter was governed by contract law, not divorce property distribution. The court also noted that at law a wife cannot stop her husband from selling matrimonial property registered in his sole name, citing Muswere v Makanza HH 16/2005. These observations informed the court's decision not to award costs against the first defendant despite her lack of legal basis for opposing the eviction.
This case clarifies the application of the doctrine of privity of contract in Zimbabwean law, particularly in the context of property transactions and family relationships. It establishes that marriage alone does not confer privity of contract on a spouse who is not named as a party to a contract, even if that spouse facilitated or benefited from the contract. The case also demonstrates that agency or representation in negotiating a contract does not grant the agent personal rights under that contract. The judgment distinguishes between contractual rights (governed by contract law) and matrimonial property rights (governed by the Matrimonial Causes Act). It is significant for property law as it confirms that a person cannot claim rights in property based solely on their contribution to acquiring or developing it if they have no contractual or proprietary interest. The court's exercise of discretion on costs shows judicial sympathy for vulnerable parties in difficult circumstances, even when they have no legal basis for their claim.