Sithembinkosi Moyo v Elina Mushakwe and The Minister of Local Government, Public Works & National Housing

In May 2017, the plaintiff (Sithembinkosi Moyo, a 54-year-old widow and nurse) and the 1st defendant (Elina Mushakwe) entered into a written agreement of sale for stand number 3621 Woodlands Park Phase 1, Gweru, for a purchase price of US$16,000.00. The payment terms were: US$5,000.00 deposit on signing, US$5,000.00 on 5 June 2017, and the balance of US$6,000.00 in monthly installments of US$250.00 commencing 15 August 2017. Transfer and possession would occur after full payment. The plaintiff paid US$11,000.00 (the deposit, second payment, and four monthly installments). Subsequently, the 1st defendant, through her lawyer Mr. Zishiri, refused to accept further payments, claiming a High Court letter/order directed that the house be given to one Peter Dube who had allegedly purchased it first. When the plaintiff demanded to see this High Court order, it could not be produced. The 1st defendant offered to refund the US$11,000.00, but the plaintiff refused unless shown the court order and unless paid in US dollars plus interest. The 1st defendant and her lawyer became evasive. The plaintiff sought legal aid assistance, and multiple letters were written to the 1st defendant's lawyers without response.

• Whether the plaintiff was entitled to an order for specific performance of the sale agreement
• Whether the 1st defendant breached the agreement of sale by refusing to accept further payments
• Which party breached the agreement - the plaintiff by allegedly making erratic payments or the defendant by refusing payments
• Whether the defendant could rely on clause 7(b) of the agreement to refund the purchase price in RTGS currency pursuant to SI 33/19
• Whether notice of cancellation was required before terminating the contract
• Whether the court should exercise its discretion to grant specific performance

1. The defendants are ordered to effect transfer or cession of stand number 3621 Woodlands Park Phase 1, Gweru against tender of payment of US$5,000.00 balance on the purchase price. 2. The 1st defendant to pay costs of suit.

The binding legal principles established are: (1) A party seeking specific performance must show they have performed their obligations under the contract, or are ready, able and willing to perform, or have been prevented from performing by the defendant. (2) Where a seller breaches a sale agreement, the right to elect between specific performance or cancellation with refund belongs to the purchaser (the innocent party), not the seller. (3) A breaching party cannot invoke contractual remedies designed for the innocent party's benefit. (4) Where a contract expressly provides for notice of cancellation, such notice must be given and must be clear and unequivocal before the contract can be validly cancelled. (5) Courts will exercise their discretion to refuse remedies that would produce unjust results or unjust enrichment, including where currency depreciation would allow a party to escape contractual obligations by paying back severely devalued currency. (6) Material inconsistencies between a party's pleadings and evidence will be resolved against that party.

The court made observations about the conduct of the 1st defendant's erstwhile lawyer, Mr. Zishiri, who disappeared from the matter and failed to respond to correspondence from the Legal Aid Directorate. The court noted that the 1st defendant's changing explanations (from a High Court order, to erratic payments, to threats from relatives) suggested dishonesty and an attempt to benefit from a double sale. The court also observed that the defendant's plea differed materially from her evidence, and she claimed her previous lawyers "slept on the job" - suggesting poor legal representation. While sympathetic to the threats the defendant claimed to face from her husband and in-laws, this did not excuse her breach of contract with the plaintiff. The court's references to the principle in Mufakose Housing Co-operative Society v Magozore (that courts cannot compel association against a person's will) were distinguishable from the facts of this case.

This case is significant in Zimbabwean contract law (applicable to South African jurisprudence by analogy) for several reasons: (1) it reinforces the principle that courts will grant specific performance where the innocent party has performed or is ready to perform and has been prevented by the breaching party; (2) it emphasizes that parties cannot invoke contractual remedies for breach when they themselves are the breaching party - the right to elect remedies belongs to the innocent party; (3) it confirms that clear and unequivocal notice of cancellation is required before terminating a contract, particularly where the contract expressly provides for such notice; (4) it demonstrates that courts will not grant orders that produce unjust results or allow unjust enrichment, particularly in the context of currency depreciation; (5) it addresses the attempted application of SI 33/19 regarding currency conversion in the context of contractual obligations; and (6) it illustrates the importance of consistency between pleadings and evidence, and the consequences of material discrepancies.