Tendai Nyatsanga v Egnia Jessica Shongorisho

The plaintiff and defendant entered into an Agreement of Sale on 12 January 2007 for the sale of Stand No. 88 of Lot 358 of Prospect, Harare, measuring 2000 square metres for a purchase price of Z$14 million. The plaintiff paid the full purchase price in cash on the agreed date and fulfilled all his obligations under the agreement. The plaintiff was to pay transfer costs within fourteen days of receiving a proforma statement from the seller's conveyancers. Despite several attempts, the plaintiff never received the proforma statement and was given various excuses. On 24 October 2008, the plaintiff instituted proceedings seeking an order compelling the defendant to effect transfer. On 3 March 2009, the defendant filed a plea admitting for the first time that she had not acquired title to the property she had sold to the plaintiff and therefore could not effect transfer. The defendant admitted in evidence that when she sold the land, she had no title over it. The defendant was unable to identify the exact stand when she attended with her witness to evaluate it.

• Whether the defendant should be compelled to take all necessary steps to effect transfer of Stand 88 of Lot 358 Prospect, measuring 2000 square metres to the plaintiff
• Whether the plaintiff is alternatively entitled to US$50,000.00 as compensation in the event that specific performance is impossible
• Whether damages can be awarded without cancellation of the agreement
• What is the appropriate quantum of compensation where specific performance is impossible

1. Defendant shall pay the plaintiff the sum of US$40,000.00 together with interest on that sum at the prescribed rate from date of summons being refund of the purchase price of stand 88 of Lot 358 of Prospect, Harare, measuring 2000 square metres. 2. The costs of this suit shall be paid by defendant on a legal practitioner and client scale.

Where a seller has sold property to which she has no title and it is legally impossible for her to effect transfer, the court will not order specific performance as the law does not compel the impossible (lex non cogit impossibilia). In such circumstances, the appropriate remedy is an order for restitution or compensation. The injured party (purchaser) who has performed his obligations under the contract has the right to elect between specific performance and damages, subject to the court's discretion. Where specific performance is impossible due to the seller's lack of title, particularly where the seller cannot even identify the property sold, the only enforceable remedy is a refund of the purchase price adjusted to current value. An order of court must be legally enforceable against the seller, and where a third party who is not privy to the contract is involved in the ability to perform, the buyer must be content with a claim for damages.

The court took judicial notice of the fact that market value of serviced stands is approximately US$10 per square metre depending on the area. The court observed that the defendant's conduct in being unable to identify the exact stand she purportedly sold was particularly problematic. The court noted that at common law, prima facie every party to a binding agreement who is ready to carry out his own obligation has a right to demand performance from the other party, and it is against conscience that a party should have a right of election whether to perform the contract or only pay damages for breach - the election is rather with the injured party, subject to the court's discretion (citing Farmers' Co-op Society v Berry 1912 AD 343). The court also observed that where compliance with an order would require cooperation of third parties not privy to the contract, specific performance cannot be ordered (citing Benkenstein v Neisius 1997 (4) SA 835 (C)).

This case is significant in Zimbabwean contract law (applicable to South African jurisprudence given the shared common law heritage) as it illustrates the application of the principle that courts will not order specific performance where it is legally impossible for the defendant to comply. It demonstrates that where a seller does not have title to property sold, the appropriate remedy is compensation rather than specific performance. The case also addresses the proper calculation of damages where currency has changed between the date of contract and judgment, and establishes that the injured party has the election to claim damages rather than specific performance, subject to the court's discretion. The award of costs on an attorney and client scale reflects the court's disapproval of the defendant's conduct in selling property to which she had no title.