Veronica Nyoni v Bernadette Eva Ndoro N.O (Executrix Dative, Estate late Elias Zvenyika Ndoro DR942/19)

The plaintiff, Veronica Nyoni, was engaged as an agent by the late Elias Zvenyika Ndoro to sell his two stands (numbers 112 and 112A Nelson Mandela Avenue) for USD$140,000. Without disclosing her identity as the actual purchaser, the plaintiff arranged for her client, Awak Haskour Jean, to pose as the buyer. A sale agreement was concluded and USD$50,000 was paid as deposit. The late Zvenyika registered a company called Kitkat Investments (Pvt) Ltd and donated the property to it. The plaintiff was handed over the original title deeds after paying USD$40,000, and later paid an additional USD$10,000. When the plaintiff failed to settle the balance, the late Zvenyika demanded the title deeds back and repossessed the property. The plaintiff alleged that at a meeting held at Messrs Mbidzo, Muchadehama and Makoni on 28 July 2010, the late Zvenyika verbally acknowledged owing her USD$53,183.00 (representing the deposit and conveyance fees) and undertook to repay this amount. By the time of trial, the late Zvenyika had passed away and was substituted by his widow as executrix dative of his estate. The defendant denied the existence of any acknowledgement of debt and produced a letter from the late Zvenyika stating that the agreement was with Jean Awak as buyer, not the plaintiff.

• Whether an oral acknowledgement of debt is enforceable under Zimbabwean law
• What are the essential requirements for a valid acknowledgement of debt
• Whether the plaintiff established her cause of action on a balance of probabilities
• Whether the plaintiff had locus standi to claim the debt given that the sale agreement was nominally concluded with A.H. Jean
• Whether the alleged acknowledgement of debt was validly revoked by the late Zvenyika

The plaintiff's claim was dismissed with costs.

An oral acknowledgement of debt is enforceable under Zimbabwean law provided it meets all the requirements of a valid contract. An acknowledgement of debt must contain essential elements including: (a) full names of debtor; (b) full names of creditor; (c) domicilium citandi et executandi or address of service; (d) the amount in full being acknowledged; (e) the time period in which the debt will be paid; (f) number of instalments if any; and (g) how payment will be made. The party alleging the existence of an oral acknowledgement of debt bears the onus of proving its existence and terms on a balance of probabilities. A revoked acknowledgement of debt cannot form the basis of a valid cause of action. The plaintiff must establish every fact necessary to support the cause of action, not merely produce evidence of some of those facts.

The court observed that from the evidence, the parties had a habit of not reducing their agreements to writing. The court also made observations about the plaintiff's conduct as an agent, noting issues of professional conflict in the plaintiff acting as both agent and buyer simultaneously, and that the plaintiff failed to disclose to her principal that she was the actual purchaser. The court commented that the inclusion of the plaintiff as director of Kitkat Investments was likely to protect the seller's interest rather than to reflect that she was the purchaser, stating: "I do not believe any seller would pass total ownership before receiving the full purchase price." The court also noted that the defendant was indebted to Mr Jean, though this was not the basis of the claim before the court.

This case clarifies the requirements for a valid acknowledgement of debt under Zimbabwean law and confirms that while oral acknowledgements of debt are permissible in principle, they must meet all the requirements of a valid contract to be enforceable. The case also demonstrates the importance of properly identifying the correct cause of action and ensuring that all essential elements of that cause of action are proven. It serves as a cautionary tale regarding agency relationships and the problems that can arise when an agent fails to disclose their personal interest in a transaction involving their principal.