The applicant, a registered Trust, alleged it purchased multiple immovable properties in Harare from the first respondent on 18 November 2018 for USD $1,650,000 pursuant to a written sale agreement. The agreement required payment within 30 days of signature to the conveyancers' Nostro FCA Trust Account. In January 2019, the applicant arranged a meeting with the first respondent's conveyancing legal practitioners to transact funds, but the conveyancer did not revert after indicating they would consult the bank. The first respondent sent a notice of breach dated 19 June 2019 alleging the applicant failed to pay the purchase price within 30 days and giving 7 days to remedy the breach, failing which the agreement would be cancelled. The applicant denied receiving this notice. The applicant then applied to court seeking an order compelling transfer of the properties against payment of the purchase price.
Application dismissed with costs to the first respondent.
Where a contract contains a specific performance clause with conditions precedent requiring notice of breach to be given before claiming specific performance, a party seeking such relief must first comply with those contractual requirements by placing the other party in mora before approaching the court. The cause of action for specific performance is not complete unless and until the contractual conditions precedent, including the giving of notice of breach as stipulated in the agreement, have been fulfilled. An application for specific performance filed without first satisfying such conditions precedent is premature and cannot succeed.
The court endorsed the principle that it is not always incumbent upon a court to deal with each and every issue raised in argument by the parties. A court may take the view that because of its finding on a particular issue, it may not be necessary to deal with the remaining issues, provided that the issue determined is one capable of finally disposing of the matter (citing Gwaradzimba v CJ Rebron & Company (Proprietary) Limited SC 12/2016). The court also noted that costs must follow the event unless there are arguments to persuade the court to depart from this general rule.
This case is significant in Zimbabwean contract law for reinforcing the principle that where a contract prescribes specific procedures and conditions precedent for claiming relief (such as specific performance), a party must strictly comply with those contractual requirements before approaching the court. It emphasizes that compliance with contractual dispute resolution mechanisms, including notice requirements, is essential to establishing a complete cause of action. The judgment also confirms the corollary principle that just as cancellation clauses must be strictly complied with, so too must specific performance clauses and their attendant conditions. The case demonstrates that courts will not grant equitable relief where applicants have not first exhausted contractual remedies or fulfilled contractual conditions.