Tendayi Chikoore v Martha Bere and Others

In September 2001, the appellant (Chikoore) and the first respondent (Bere) concluded an agreement of sale for property known as 3985 Windsor Park, Ruwa, for ZW$2,600,000. The agreement was reduced to writing but not signed by the parties, though both agreed it was valid. On 12 September 2001, the parties attended at the offices of Messrs Warara & Partners and agreed to certain variations relating to the purchase price and payment terms. The written agreement contained a clause requiring any variations to be in writing and signed by both parties. When the parties returned the following day to sign the varied agreement, the appellant refused to sign. The first and second respondents contended the oral variation was valid and enforceable. The appellant averred that it was agreed the variation would only become binding upon signature, and further alleged he spoke to the first respondent by telephone shortly after, where she also indicated she no longer wished to pursue the agreement. The High Court granted a provisional order on 18 December 2001 in favour of the respondents, which was confirmed on 23 February 2005, ordering the appellant to proceed with the sale.

• Whether material disputes of fact existed that could not be resolved on the papers
• Whether an oral variation of a written agreement containing a clause requiring written and signed variations was valid and enforceable
• Whether the variation agreement was binding when one party refused to sign it
• Whether the agreement was cancelled by mutual agreement based on subsequent telephone conversation
• Whether it was proper for counsel who deposed to the founding affidavit to argue the case on behalf of his client

The appeal was allowed with costs. The matter was referred to the High Court for trial. The founding affidavit was to stand as summons and the opposing affidavit as an appearance to defend, with pleadings to proceed thereafter in terms of the High Court Rules, with the date of filing of the declaration to be calculated from the date of judgment.

Where a written agreement contains a clause requiring any variations to be in writing and signed by both parties, an oral variation is not enforceable unless reduced to writing and signed as required. Material disputes of fact in motion proceedings cannot be resolved on the papers alone where conflicting evidence exists and requires determination through oral testimony. Where allegations in an opposing affidavit are not rebutted by an answering affidavit, such uncontroverted evidence cannot be ignored by the court in determining the matter.

The Court observed that it is novel and improper procedure for a legal practitioner who is the deponent of the founding affidavit to appear and argue his client's case, particularly where the facts averred were not of the legal practitioner's personal knowledge but received by way of instructions. This may explain why no answering affidavit was filed to rebut important averments in the opposing affidavit. The Court also noted (without fully determining) other issues raised on appeal, including questions regarding the legality of the transaction vis-à-vis the Exchange Control Act and Regulations, and lack of clarity regarding the terms of the agreement from the documentary evidence.

This case is significant in Zimbabwean (and relevant to South African) law for several principles: (1) it reinforces the importance of complying with contractual provisions requiring variations to be in writing and signed by parties, particularly where the original agreement contains such a clause; (2) it demonstrates the proper approach to material disputes of fact in motion proceedings - where genuine disputes exist that cannot be resolved on the papers, the matter should proceed to trial rather than being determined on affidavits alone; (3) it establishes that uncontroverted allegations in opposing affidavits, particularly regarding cancellation by mutual agreement, cannot simply be ignored by the court; and (4) it addresses issues of professional conduct and procedure, namely that it is improper for a legal practitioner who deposed to the founding affidavit to appear as counsel arguing the case, as this creates potential conflicts and procedural irregularities.