Appeal No. 29/06
MR MASIMBA CHANDAVENGERWA
MS T CHANDAVENGERWA
MR W MUTYANDA
MR CHARLES MASIMBA CHIHUMBIRI
THE REGISTRAR OF DEEDS
COURT OF ZIMBABWE
CJ, CHEDA JA, & ZIYAMBI JA
JUNE 19, 2006
Mazonde, for the
A Zindi, for the
appearance for the third respondent
CHEDA JA: After hearing Mr
Mazonde for the appellant we dismissed this appeal with costs and
said the reasons would follow.
are the reasons:
The second respondent was the
owner of immovable property which he sold to the first respondent.
The first respondent subdivided
the piece of land into three stands,
that is, No 43, 44 and 45. He then sold the subdivided stands as
No 45, measuring 4391 square metres, to a company known as Denkamp
Investments (Private) Limited, by agreement dated 29 April,
No 43, measuring 5347 metres to Daniel Gozo by agreement dated 21 May
3 June 2002 the first respondent entered into yet another agreement
of sale of a stand reflected as No 45 to the appellants.
arrangements were made regarding payment for the stand.
to the first respondents affidavit, the stand that he sold to the
appellants should have been No 44 and not No 45 because,
papers show, No 45 had already been sold to Denkamp Investments (Pvt)
was the first error concerning this sale. In addition, the agreement
with the appellants gave the size of the stand as measuring
square metres. This was a second error in the agreement because that
was not the correct measurement for stand No 45.
all this was done, the sale of stand No 43 to Gozo fell through and
the appellants said they were interested in it as it was
verbal agreement was then entered into for the sale to them of stand
were made for the price to be paid partly in United States Dollars
and partly in Zimbabwean Dollars.
is indication on the papers that some payment was made for this stand
in United States Dollars to the legal firm of Robinson
Makonyere and later withdrawn by the appellants. This is confirmed
by the affidavits of Makonyere and the first respondent.
to this, the appellants then went to the High Court seeking an order
to compel transfer of stand No 45 to themselves.
problems were encountered, the appellants amended their draft order
to say they were seeking transfer to themselves of stand
then, stand No 44 which should have been the subject of the agreement
with the appellants had been sold to Augustine Nzuma.
difficult situation that the appellants put themselves in was that
they were now seeking to enforce the original written agreement
stand No. 45, which agreement was defective, and at the same time
seeking transfer of stand No. 43 for which they had withdrawn
part payment made in United States Dollars.
were also arguing that it had never been agreed that part of the
payment would be made in foreign currency, while at the same
accepting that there was only a verbal agreement about the sale of
stand No 43.
first respondents position clear. It was that once the appellants
withdrew the part payment for stand No 43 in foreign currency,
cancelled the sale, and, by then, he had sold stand No 44 to someone
else as the appellants had opted for stand No 43.
was clear that the appellants had difficulty about which agreement to
enforce in view of the above confusion. The High Court
explanation of the first respondent and dismissed the application.
On appeal, the appellants were
even more confused as to the correct position.
claimed that the dispute was about stand No 43 for which full payment
had been made on the basis of the written agreement, yet
the sale of
stand No 43 was all verbal.
Even Mr Mazonde
who appeared for the appellants was equally uncertain as to which
agreement was enforceable in the circumstances.
is why we dismissed the appeal.
CJ: I agree.
JA: I agree.
Mushonga & Partners,
appellant's legal practitioners
respondent's legal practitioners