United Appiaries (Private) Limited v Pentecostal Fellowship Church and Registrar of Deeds

United Appiaries (plaintiff) purchased Stand 644 Marimba Park Township from Pentecostal Fellowship Church (defendant) for $950,000 pursuant to a written agreement of sale dated 1 February 2001. The purchase price was payable by a deposit of $450,000 and monthly instalments of $20,000 over two years. The plaintiff did not always maintain the agreed payment schedule. In February, March and April 2002, instalments dropped from $20,000 to $12,600 per month. On 3 May 2002, the defendant purported to cancel the agreement citing the reduced instalments. However, after the purported cancellation, the defendant continued to accept three further payments from the plaintiff totaling $445,000 (September 2002: $240,000; October 2002: $137,000; November 2002: $68,000 plus $2,000 cash). By November 2002, the plaintiff had paid the full purchase price of $950,000, but the defendant refused to transfer the property. The plaintiff instituted proceedings seeking specific performance.

• Whether the plaintiff had paid the full purchase price within the stipulated time period
• Whether the plaintiff had breached the agreement of sale by failing to maintain the instalment payments at the agreed rate
• Whether the defendant had validly cancelled the agreement of sale
• Whether the defendant waived its right to cancel the agreement by accepting payments after the purported cancellation
• Whether the defendant complied with the contractual notice requirements before attempting to cancel the agreement

Judgment entered for the plaintiff. The defendant was ordered to transfer all rights, title and interest in Stand 644 Marimba Park Township to the plaintiff within seven days by signing all necessary transfer documents. In the event of the defendant's failure or neglect, the Sheriff for Zimbabwe was authorized to sign all relevant documents and take necessary steps to effect the transfer at the defendant's cost. The defendant was ordered to pay the plaintiff's costs of suit.

1. Where a seller accepts substantial payments from a purchaser after purporting to cancel an agreement of sale, and cashes those payments, such conduct constitutes waiver by conduct of the right to cancel, estoppel operating to prevent reliance on the cancellation. 2. Waiver of contractual rights can be express or implied from conduct; conduct plainly evincing an intention to abandon contractual rights permits an inference that such rights have been waived. 3. A party seeking to cancel a contract for breach must strictly comply with contractual notice provisions requiring written notice and opportunity to remedy the breach before cancellation can be validly effected. 4. The party alleging waiver must prove a decision by the other party to abandon its rights, which can be inferred from conduct inconsistent with enforcement of those rights.

The court noted that the poor drafting of the agreement created some ambiguity but held that despite this, the intention of the parties was discernible. The court observed that from the very beginning, even before the ink was dry on the written agreement, the parties had acted according to separate verbal arrangements rather than strict adherence to the written terms. The court commented that the $20,000 monthly payment rate appeared to have been used as an estimate or guide rather than a strict requirement, as it had never been maintained for more than three consecutive months at any time. The court also made critical observations about Rev Gawe's credibility, noting incoherence in his testimony about the total amount received and questioning the defendant's sincerity in claiming not to understand why the plaintiff continued making payments after the purported cancellation.

This case is significant in Zimbabwean contract law (with persuasive value in South African law given the shared common law heritage) for its treatment of waiver of contractual rights. It demonstrates that waiver can be established not only by express agreement but by conduct inconsistent with the enforcement of contractual rights. The case reinforces that a party who accepts performance after purporting to cancel an agreement will be held to have waived its right to rely on the cancellation. It also emphasizes the importance of strict compliance with contractual notice provisions before a party can validly exercise rights of cancellation. The judgment illustrates the principle that courts will look beyond technical compliance with written agreements to the actual conduct of parties in determining their true intentions and whether rights have been abandoned.