Timothy John Walter Preston v Charuma Blasting & Earthmoving Services (Private) Limited and The Registrar of Deeds

On 16 July 1998, the appellant (Preston) and the first respondent (Charuma Blasting) concluded a sale agreement for a piece of land at Ruwa for $2,500,000. The respondent was to pay a deposit of $500,000 by 22 July 1998, with the balance payable in four monthly instalments of $500,000, the first due on or before 5 August 1998. The agreement provided that if the respondent failed to pay any instalment by the due date, the appellant could give written notice requiring payment within fourteen days, failing which the appellant could cancel the sale. The respondent paid the deposit late (6 August 1998) and the first instalment late (13 August 1998). When the second instalment was not paid by 5 September 1998, the Estate Agent gave notice requiring payment within fourteen days, and subsequently purported to cancel the agreement when payment was not made within that period.

• Whether the notice given to the respondent satisfied the requirements of section 8(1) read with section 8(2) of the Contractual Penalties Act [Chapter 8:04]
• Whether the sale agreement constituted an instalment sale of land as defined in section 2 of the Act
• Whether the fourteen-day notice period agreed upon by the parties could override the statutory thirty-day notice requirement
• Whether the purchaser could waive rights conferred by the Contractual Penalties Act

The appeal was dismissed with costs. The High Court's order setting aside the purported cancellation of the sale agreement was upheld.

In an instalment sale of land (defined as a sale where payment is made by deposit and two or more instalments, with transfer occurring only after full payment), a seller cannot terminate the contract for breach without first giving the purchaser written notice of at least thirty days to remedy the breach, as required by sections 8(1) and 8(2) of the Contractual Penalties Act [Chapter 8:04]. Where parties agree to a notice period shorter than thirty days, the statutory minimum of thirty days prevails. Any waiver by a purchaser of rights or benefits conferred by the Act is void and of no force or effect under section 11 of the Act.

The Court noted that if the parties had agreed upon a period longer than thirty days for remedying a breach, then the purchaser should be called upon to remedy the breach within that longer agreed-upon period before the agreement could be terminated. The Court also observed that the Estate Agent appeared unconcerned by the issue raised regarding the validity of the cancellation notice, implicitly suggesting a lack of proper consideration of the statutory requirements.

This case is significant in Zimbabwean property and contract law as it establishes the mandatory nature of the notice requirements under the Contractual Penalties Act for instalment sales of land. It confirms that parties cannot contract out of the statutory protections afforded to purchasers under the Act, particularly the minimum thirty-day notice period required before termination. The case reinforces the principle that statutory consumer protections in instalment sale agreements are non-waivable and that contractual provisions providing for shorter notice periods are overridden by the statutory minimum requirements. This provides important protection to purchasers of land under instalment sale agreements.