Wang Enxiang v Shi Yongchun and Others

In April 2009, the applicant (through his wife acting under power of attorney) purchased stand 321 Willowvale Township Harare from the first respondent for CHY 280,000-00. The first respondent had purchased the stand from the third respondent in 2007. After the sale to the applicant, no transfer was effected and the stand remained registered in the third respondent's name. The first respondent retained possession of the title deeds. The applicant subsequently left for Zimbabwe for China and placed a caveat over the stand. The first respondent later sold the stand to the second respondent. A cash receipt dated 2 April 2009 showed payment in full of CHY 280,000-00. An IOU document dated 3 July 2009 showed the first respondent acknowledged borrowing the title deeds and other documents from the applicant. Despite repeated demand, the first respondent refused to hand over the title deeds to enable transfer.

• Whether there existed material disputes of fact on the papers that could not be resolved without oral evidence
• Whether the applicant had paid the full purchase price for the stand
• Whether the agreement of sale had been cancelled
• Whether the applicant was entitled to specific performance of the contract
• On what basis the first respondent possessed the title deeds

The first respondent was ordered to deliver title deed number 6563/99 to the applicant within seven days. The second and third respondents were ordered to facilitate transfer of stand 321 Willowvale Township, Harare to the applicant within seven days. The first respondent was ordered to pay the costs of suit.

Where documentary evidence including authenticated receipts, sale agreements, and acknowledgments of debt exist, a court may resolve disputes of fact on the papers without requiring oral evidence, adopting a robust approach. A party claiming cancellation of a contract bears the burden of proving how and when the cancellation was effected and communicated. Where a purchaser has paid the full purchase price for immovable property and the seller retains the title deeds, the purchaser is entitled to specific performance requiring delivery of the title deeds and facilitation of transfer, provided the property remains available for transfer. Documents translated and authenticated by the relevant embassy are to be accorded proper weight absent credible challenge to their authenticity.

The court observed that it could not imagine any other person or authority in Zimbabwe better placed than the Chinese Embassy to carry out authentic Chinese translations. The court noted that although the cash receipt did not specifically describe the property in issue, it had no doubt the receipt pertained to the stand in question. The court commented that the respondent's defence amounted to a bare denial. The court noted there was no reason why the first respondent would acknowledge borrowing title deeds if they had been voluntarily given to him, as he claimed.

This case demonstrates the Zimbabwean High Court's approach to resolving disputes of fact in motion proceedings, particularly the court's willingness to adopt a robust approach where documentary evidence is sufficient. The case also illustrates principles of specific performance in property transactions where full payment has been made but transfer has not been effected. It shows the court's treatment of foreign language documents authenticated by embassy officials and the weight accorded to such translations. The case reinforces that allegations of contract cancellation must be properly proven and communicated to be effective.