SAMUTSA v MADANHI AND ANOTHER (11 of 2026) [2026] ZWSC 8 (22 January 2026)

**Judgment No. SC 11/26** **Civil Appeal No. SC 359/25** 8 _**REPORTABLE**_ **(11)** **TRUST SAMUTSA** **v** **(1) TONDERAI MADANHI (2) THE TRUSTEES FOR THE TIME BEING OF THE AVONLEA EXTENSION TRUST** **SUPREME COURT OF ZIMBABWE** **UCHENA JA, CHATUKUTA JA & MWAYERA JA** **HARARE: 23 SEPTEMBER 2025 & 22 JANUARY 2026** _B Diza,_ for the appellant _R Chingwe-Gangata,_ for the first respondent No appearance for the second respondent **MWAYERA JA:** 1. This is an appeal against the whole judgment of the High Court (‘the court _a quo_ ’) dated 19 March 2025. The court _a quo_ dismissed the appellant's appeal against the decision of the magistrates’ court that granted the appellant the alternative relief of restitution. _**FACTUAL BACKGROUND**_ 2. The appellant and the first respondent entered into an agreement of sale in respect of immovable property described as Stand Number 4274 of the Remaining Extent of Zizalisari Lot 1, Marlborough Township, held under Deed of Transfer No. 4819/2009 (hereinafter referred to as ‘the property’). The agreed purchase price was US$25 000, payable in four instalments. The appellant contended that he duly complied with all his contractual obligations save for the final instalment, which the first respondent declined to accept. 3. The first respondent thereafter purported to cancel the agreement on 26 January 2024. Notwithstanding the purported cancellation, the appellant tendered payment of the outstanding instalment as an indication of good faith and his continuing willingness to perform under the contract. 4. It is pertinent to note that in the trial court, the appellant was represented by his wife, who appeared on his behalf pursuant to a duly executed special power of attorney. _**PROCEEDINGS IN THE TRIAL COURT**_ 5. Following the cancellation, the appellant issued summons in the magistrates’ court seeking specific performance or, alternatively, damages. He maintained that the purchase price of US$25 000 was payable as follows: i. A deposit of US$10 000 upon signing the agreement of sale; ii. US$3 000 on or before 30 November 2023; iii. US$6 000 on or before 31 December 2023; and iv. US$6 000 on or before 31 January 2024. 6. The appellant contended that cancellation before the due date of the final instalment was unlawful, as the first respondent had already acknowledged receipt of the earlier payments. He sought transfer of ownership of the property or, alternatively, the sum of US$19 500, being the total amount paid (US$19 000) and incidental expenses (US$500). 7. The first respondent, in opposition, denied concluding a valid agreement or receiving any payments. He alleged that any purported agreement was null and void on the basis that it had been entered into under duress. He pointed to the existence of two inconsistent agreements, one for US$25 000 and another for US$40 000, as evidence of a common mistake. 8. The appellant acknowledged signing the US$40 000 document but claimed ignorance of its contents, insisting that it related to a different property altogether. 9. The trial court held that both agreements were valid under the principle of _caveat_ _subscriptor_. It found that the stark discrepancy between the two purchase prices created a serious disproportion, evidencing a lack of _consensus_ _ad idem_. The court concluded that, since the full purchase price had not been paid, transfer of title could not be compelled. Nevertheless, it ordered the respondent to pay the appellant US$19 500 or the equivalent in ZIG at the prevailing interbank rate. _**PROCEEDINGS BEFORE THE COURT**_ __**A QUO**__ 10. Dissatisfied with the decision of the trial court, the appellant appealed to the court _a quo_ against the entire judgment, seeking transfer of rights and title to the property. He argued that the operative agreement was the one reflecting a purchase price of US$25 000, voluntarily signed and acknowledged by the first respondent. The appellant further asserted that the first respondent’s purported cancellation violated the Contractual Penalties Act [_Chapter 8:04_] (the ‘Contractual Penalties Act’), which requires at least 30 days’ written notice to remedy any breach before termination. 11. The first respondent maintained that the valid agreement was the one reflecting a purchase price of US$40 000, and that the discrepancy between the two figures demonstrated a lack of _consensus_ _ad idem_. He further contended that the Contractual Penalties Act was inapplicable as no valid contract existed. _**FINDINGS OF THE COURT**_ __**A QUO**__ 12. The court _a quo_ held that the appellant had not paid the full purchase price and, therefore, retained only personal rights, insufficient to compel transfer of ownership. It ruled that the existence of a common mistake rendered the agreement voidable and that the issue of statutory notice under the Contractual Penalties Act was not raised before the trial court. 13. The court _a quo_ also remarked on the anomaly of an appellant appealing a judgment partly in her favour. By appealing the entire judgment, the court _a quo_ found that the appellant effectively nullified the damages award in her favour, leaving no operative relief. Consequently, the appeal was dismissed. 14. Aggrieved by the decision of the court _a quo_ , the appellant has lodged the present appeal on the subsequent grounds: _**GROUNDS OF APPEAL**_ 1. The court _a quo_ erred at law and fact in disregarding the fictitious payment of the balance of the purchase price tendered by the appellant on the agreement sued upon and therefore, refusing to order specific performance. 2. The court _a quo_ erred at law and fact in concluding that there was common mistake on the value of the property when the payments were done in terms of the agreement sued on by the appellant. 3. The court _a quo_ erred at law in concluding that by appealing against the whole judgment, the appellant disenfranchised himself of the alternative relief granted by the trial court. _**RELIEF SOUGHT**_ 1. The appeal is allowed with costs. 2. The judgment of the court _a quo_ is set aside and is substituted by the following: 1. The defendants be and are hereby ordered to transfer rights and title for a certain piece of land situated in the District of Salisbury, being unimproved land called stand number 4274 of remaining extent of Zizalisari Lot 1 Marlborough Township measuring one thousand three hundred and fifty-six (1,356) square metres held under deed of transfer number 4918/2009 against the payment of the last instalment of US$6,000 (Six Thousand United States Dollars) by the plaintiff to the defendants. 2. Respondents pay costs of suit. In the alternative: 1\. The defendants be and are hereby ordered to reimburse the sum of US$19,500 (Nineteen Thousand, Five Hundred United States Dollars), US$19,000.00 being the purchase price paid in relation to the property and US$500.00 being costs related to drafting of agreement plus costs of suit. _**PROCEEDINGS BEFORE THIS COURT**_ **APPELLANT’S SUBMISSIONS** 15. Counsel for the appellant argued that the first respondent admitted to the validity of the US$25 000 agreement and acknowledged all payments, save for the last instalment. On that basis, he submitted that no common mistake existed. He emphasised that even in the cancellation letter, the first respondent recognised the same agreement but sought to void it on the grounds of coercion. He further contended that the US$ 40,000 agreement related to a different property, not the one in dispute. Counsel argued that although the appellant’s wife‘s signature appeared on that document, she was uncertain how it came into existence. 16. The Court inquired into whether the existence of the two agreements suggested a lack of consensus. Counsel maintained that there was _consensus ad idem_ since the first respondent never challenged the US$25 000 agreement but only sought its cancellation. He added that the appellant’s failure to pay the balance was due to the first respondent's obstruction and refusal to accept it. 17. The Court further directed questions to counsel for the appellant concerning the propriety of the appellant’s wife giving evidence before the trial court. In particular, the Court enquired into the provisions of the law which permitted a person to give evidence on behalf of a party, and whether such testimony was legally admissible where the witness was not the named party to the proceedings. 18. In response to these queries, counsel for the appellant submitted that there is no rule of civil evidence which prohibits a witness from testifying on behalf of another litigant, provided that the evidence tendered is based on first-hand knowledge of the facts in issue. Counsel emphasised that the appellant’s wife was not purporting to testify as a representative in a technical or legal sense, but rather as a factual witness with direct personal knowledge of the transaction. 19. Counsel further submitted that the appellant’s wife was herself a signatory to the agreement forming the subject matter of the dispute. It was explained that she was the buyer in the transaction and that she had personally executed the agreement. Although the agreement bore her signature, it was common cause between the parties that she had signed the document on behalf of the appellant, her husband. On that basis, counsel argued that her evidence was both relevant and admissible, as it related to matters within her direct participation and knowledge. 20. Counsel accordingly maintained that the court _a quo_ had correctly accepted the wife’s evidence, there being no legal impediment to her testifying in the circumstances, and that the court _a quo_ was entitled to rely on such evidence in determining the issues before it. _**RESPONDENT’S SUBMISSIONS**_ 21. On the other hand, counsel for the first respondent argued that the appellant raised no objection to the admission of the US$40 000 agreement into evidence. He submitted that once the appellant acknowledged his wife‘s signature on that agreement, it became legally binding. He further contended that although the two agreements described the property differently, they concerned the same land and reflected a lack of consensus. He further stated that the existence of an objection confirmed that there was no meeting of minds. 22. While conceding the admissions made, counsel for the first respondent submitted that the Court could not ignore the existence of two binding but conflicting agreements; in any case, the appellant had failed to pay the balance. The Court inquired whether the court _a quo_ considered the admission. Counsel conceded that it had not, but argued it was a live issue before the court _a quo_ because it found the conflicting agreements dispositive of the matter which was before it. 23. The Court inquired whether the existence of conflicting agreements had been raised in the first respondent's plea. Counsel conceded that only a bare denial was pleaded, adding that while the issue appeared in the summary of evidence, it was first brought to light in the cancellation letter, which gave rise to the dispute. _**ISSUES FOR DETERMINATION**_ 24. Considering the grounds of appeal raised above and the submissions made by both counsel for the appellant and the first respondent, the following issues arise for determination: 1. Whether or not the court _a quo_ misdirected itself in disregarding the payment of the final instalment. 2. Whether or not the court _a quo_ misdirected itself in finding that there was a common mistake on the value of the property, despite payments being made in accordance with the agreement relied upon by the appellant. 3. Whether or not the court _a quo_ misdirected itself in finding that by appealing the entire judgment, the appellant forfeited the alternative relief granted by the trial court. _**APPLICATION OF THE LAW TO THE FACTS**_ **Whether or not the court** _**a quo**_**misdirected itself in disregarding the payment of the final instalment.** 25. In the first ground of appeal and at the hearing of the matter, counsel for the appellant insisted that the court _a quo_ misdirected itself in finding that he failed to tender the full purchase price of US$25 000. Counsel submitted that the doctrine of fictional fulfilment applied on the basis that the first respondent frustrated his performance by issuing a letter of cancellation before the final instalment was due and paid. He further contends that the court erred in holding that he held only personal rights rather than real rights. 26. On the other hand, counsel for the first respondent maintained that the doctrine of fictional fulfilment is inapplicable, on the premise that no valid and enforceable contract existed due to the absence of a true meeting of the minds. 27. Fictional fulfilment occurs where the law deems a contractual condition to have been satisfied because one party wrongfully prevented its fulfilment, thereby precluding that party from benefiting from its own obstructive conduct, as explained by CHIWESHE JA in _Zimbabwe Power Company_ v _Intratrek Zimbabwe_ SC 127/23: “Fictional fulfilment is a doctrine that may be invoked under circumstances where a party to a contract deliberately frustrates the fulfilment of a condition stipulated in the contract.” 28. The same sentiments were made by the South African Supreme Court of Appeal in _Lekup Prop Co No 4 (Pty) Ltd_ v _Wright_ 2012 (5) SA 246 (SCA) at para 7 where the remarks in _Koenig_ v _Johnson & Co Ltd _1935 AD 262 at 272 were reiterated as follows: “If it is the fault of the person in whose favour the condition is inserted that the condition cannot be fulfilled, or if he intended to prevent the condition from being fulfilled, the law considers the condition to have been fulfilled as against him. The nature of the contract is always an important element. In some cases the person benefitted by the non-performance of the condition can sit still and do nothing to assist in its fulfilment; in other cases it is his legal duty to assist in the condition being fulfilled, and in all cases if he deliberately and in bad faith prevents the fulfilment of the condition in order to escape the consequences of the contract the law will consider the unfulfilled condition to have been fulfilled as against the person guilty of bad faith.” 29. For the doctrine to apply, it must first be established that a party deliberately engaged in conduct calculated to prevent the fulfilment of a contractual condition. Secondly, such conduct must have been driven by an intention to evade the contract. The doctrine, therefore, contemplates deliberate and blameworthy obstruction of performance. _In casu_ , the first respondent’s conduct falls short of this threshold. He did not impede the appellant’s performance; rather, he openly stated his position by cancelling the agreement, which is distinguishable from the covert obstruction envisaged under the doctrine of fictional fulfilment. Having unequivocally communicated his cancellation, there was no necessity for him to engage in conduct aimed at frustrating the appellant’s performance. 30. In any event, once uncertainty arose as to which of the two written agreement reflected the parties’ true intention, the issue of whether the appellant had tendered the full purchase price became immaterial. Once the court determined that neither agreement was legally sustainable, any inquiry into performance or payment was rendered academic. The invalidity of the contracts effectively resolved the dispute, leaving no basis upon which further contractual obligations could be enforced. 31. In any event, the court _a quo_ ’s remarks concerning payment amounted to _obiter dicta_ , as they did not underpin the final determination of the matter. The decisive finding was that both agreements were void on account of their conflicting terms and the absence of a genuine consensus between the parties. Any observations relating to whether the appellant had discharged the payment obligations were, therefore, ancillary to the court’s reasoning and had no bearing on the outcome. 32. The court _a quo_ cannot be further criticised for concluding that the appellant held only personal rights and not real rights. A “real right” is defined in s 2 of the Deeds Registry Act [_Chapter 20:05_] as “any right which becomes a real right upon registration.” In construing this definition, the Court in _Goldlock Industries 2003 (Pvt) Ltd_ v _Sheriff of Zimbabwe & Ors_ SC 62/23 at p 11 reaffirmed the position adopted in _Mavhundise_ v _UDC Ltd & Ors _2001 (2) ZLR 337 (H) at 342G, where it was held that: “Ownership of land can only be acquired by transfer of the ownership from the previous owner and such transfer must be registered in the Deeds Registry.” 33. In light of the foregoing, it is evident that a real right in immovable property is created through the registration of that right in the Deeds Registry. Such rights are not limited to the contracting parties; they attach to the property itself and are enforceable against the world at large. By contrast, personal rights arise from agreements or obligations between individuals, obliging one party to perform in favour of another. Their operation is purely relational, binding only the parties to the contract or obligation. This distinction between real and personal rights was succinctly articulated in _Absa Bank Limited_ v _Keet_ 2015 (4) SA 474 (SCA), where ZONDI JA held that: “Real rights are primarily concerned with the relationship between a person and a thing and personal rights are concerned with a relationship between two persons. The person who is entitled to a real right over a thing can, by way of vindicatory action, claim that thing from any individual who interferes with his right. Such a right is the right of ownership. If, however, the right is not absolute, but a relative right to a thing, so that it can only be enforced against a determined individual or a class of individuals, then it is a personal right.” 34. _In casu_ , the appellant’s claim lay solely against the first respondent, as the owner of the property, and the rights he sought to enforce arose exclusively from their agreement. He, therefore, held no more than personal rights flowing from that contract. In these circumstances, the court _a quo_ cannot be criticised for finding that the appellant possessed only personal rights. Accordingly, the first ground of appeal is without merit and must fail. **Whether or not the court** _**a quo**_**misdirected itself in finding that there was a common mistake on the value of the property, despite payments being made in accordance with the agreement relied upon by the appellant.** 35. The appellant argues that the court _a quo_ erred in finding a common mistake, relying on the first respondent’s own pleadings and admission that the US$25 000 agreement was the only binding contract. Conversely, the first respondent asserts that the circumstances demonstrate a lack of consensus, as the appellant relied on an agreement stipulating a purchase price of US$25 000, while he relied on one indicating a price of US$40 000. 36. A common mistake arises where both parties share the same erroneous belief regarding a material fact central to the agreement. Because their consensus is based on a false assumption, there is no true meeting of the minds, rendering the contract void or voidable. In _Van Reenen Steel (Pty) Ltd_ v _Smith N.O. & Anor_ 2002 (4) SA 264 (SCA),at para 2 the South African Supreme Court, of Appeal echoing Schalk Van der Merwe in _Contract: General Principles_ , observed that the principle of common mistake applies where: “both parties to an agreement labour under the same incorrect perception of a fact external to the minds of the parties. Such a mistake, of course, does not lead to dissensus: the parties are in complete agreement, although their consensus is based on an incorrect assumption or supposition. This kind of mistake can be related to the concept of a common underlying supposition (‟veronderstelling”) on which the parties base their contract. In this manner the parties can introduce a common motive into the (terms of the) contract so that a mistake in their common motive will render the contract without further effect.” 37. In my view, the present circumstances are more appropriately characterised as a case of mutual mistake rather than common mistake. In a mutual mistake, each party misunderstands the other’s intentions, attributing a different meaning to the agreement so that their minds never truly align. This fundamental divergence undermines consensus, making it impossible to speak of a valid contract, for without genuine consent, no agreement can be said to exist. GUVAVA JA in _Ashanti Goldfields Zimbabwe Limited_ v _Mdala_ SC 60/17, at p 10, succinctly captured the essence of a mutual mistake as follows: “I am inclined to agree with the appellant that there was no _justus error_ in this case but for different reasons. Unilateral mistake occurs where one party enters a contract motivated by a material and genuine mistake but the other party is clear on the import of the contract being entered into. It would be more readily sustainable if the appellant had alleged mutual mistake which is defined by R.H Christie in _Business Law in Zimbabwe_ as a situation where each party mistakenly thinks the other is agreeing with his version or understanding of the contract. _In casu,_ both parties allege to have entered the contract on the basis of a material error in fact. One thought it was a lease agreement while the other thought it was essentially a contract of sale. Therefore, such conduct does not amount to _justus error_ but to a mutual mistake which may be said to result in the absence of consensus _ad idem_ which would vitiate the contract.” 38. The facts in the present case indicate that the parties held fundamentally divergent views regarding which agreement governed their transaction. The appellant contended that the agreement stipulating a purchase price of US$25 000 reflected the true terms, whereas the first respondent maintained that the US$40 000 agreement was binding. The appellant acknowledged that his signature appeared on the latter agreement, invoking the principle of _caveat subscriptor_ , which ordinarily binds a signatory to the contents of a document they have signed (see _Muchabaiwa_ v _Grab Enterprises (Pvt) Ltd_ 1996 (2) ZLR 691 (S), at 696 B). 39. In these circumstances, it is evident that there was no meeting of the minds. The conflicting views regarding which agreement reflected the parties’ true intentions rendered the contract voidable. This mutual mistake concerning the operative agreement prevented the formation of a valid and enforceable contractual obligation. 40. Equally significant is the requirement of certainty as to price in a contract of sale. As Nagel et al. note in _Commercial Law_ , 6th edition, at p 200, a sale lacking a fixed or ascertainable price is legally invalid and unenforceable. The authors state that: “No contract of sale exists where the price is not determined or determinable. The parties must have serious intention that the agreed price will be the price for the contract and that it will be payable as agreed. If the contract is only concluded in the form of contract of sale but the true intention of the parties is to conclude a contract of donation for example, the law will give effect to the true intention of the parties (and not their simulated intention)- [_Zandberg_ v _Van Zyl_ 1910 AD 268; _Vasco Dry Cleaners_ v _Twycross_ 1979 (1) SA 603 (A); _Stead_ v _Conradie_ 1995 (2) SA 111 (A); _Chretien_ v _Bell_ 2011 (1) SA 54 (SCA)]” 41. The parties retained mutually irreconcilable beliefs regarding a material fact, namely, the purchase price and, by extension, the identity of the operative agreement. This absence of consensus vitiates the validity of any purported contract. Accordingly, the second ground of appeal is without merit and must fail. **Whether or not the court** _**a quo**_**misdirected itself in finding that by appealing the entire judgment, the appellant forfeited the alternative relief granted by the trial court.** 42. The appellant argued that the court _a quo_ erred fundamentally in law by concluding that he had forfeited the alternative relief properly granted by the trial court. He contended that the decision to divest him of all relief, without first identifying any error in the granting of the alternative order, amounted to a misapplication of the appellate function. Conversely, the first respondent maintains that the appellant could have appealed only against the alternative relief granted in his favour, and by appealing the entire judgment, the court _a quo_ could not be faulted. 43. In his notice of appeal, the appellant indicated that his appeal was directed against the whole judgment of the trial court. Moreover, it is apparent from the relief sought that he was indeed appealing the entire judgment, as he sought solely the transfer of rights and title of the property into his name. 44. It is trite that an appeal lies against the operative order of a judgment, grounded in a challenge to the reasoning that produced it. This principle was affirmed in _Thathile Investments_ _Casmyn Mining_ v _Ncube_ SC 34/23, at p 4, where the Court echoed the observations in _Chidyausiku_ v _Nyakabambo_ 1987 (2) ZLR 119 (S) at 125B-F, as follows: “In order to be valid, a notice of appeal must be directed to the whole or part of the order made by the court _a_ _quo_ and not to its reasons for making the order in question. It must be lodged against the substantive order. This much emerges plainly from the decision in _Western Johannesburg Rent Board & Anor _v _Ursula Mansions (Pty) Ltd_ 1948 (3) SA 353 (A) where at 355 Centlivres JA said this: ‘... it is clear that an appeal can be noted not against the reasons for judgment but against the substantive order made by a Court. For instance, it is open to a respondent on appeal to contend that the order appealed against should be supported on grounds which were rejected by the trial judge: he cannot note a cross-appeal under r 6 (4) unless he desires a variation of the order. See _Municipal Council of Bulawayo_ v _Bulawayo Waterworks Ltd_ 1915 AD 611 at pp 625, 631, 632. In the present case the notice of appeal is not against the order granted by the Transvaal Provincial Division but against that part of the reasons for judgment in which it was held that the appellants had acted arbitrarily.’” 45. The fact that the appellant appealed the judgment in which his alternative relief was granted plainly indicates his dissatisfaction with the order. Such an appeal was, in itself, irregular, given that he had specifically sought that very alternative relief. In my view, the purpose of alternative relief is to provide a fallback position ensuring that a claimant obtains some measure of redress should the primary relief fail. It is, therefore, inconsistent for a party to challenge relief that he himself requested merely because certain remarks of the court were found objectionable. I am of the considered opinion that the appellant’s conduct constitutes an abuse of the court process and egregiously undermines the principle of finality. It is a fundamental rule that one cannot opportunistically adopt two conflicting positions. As MAVANGIRA JA observed in _United Harvest (Pvt) Ltd_ v _Kewada & Anor_ SC 51/23, at p 9: “Note ought to be taken of the fact that peremption is one aspect of a broader policy that there must be finality in litigation, in the interest of the parties and for the proper administration of justice. At common law, peremption, which is not to be confused with pre-emption, though not a common objection in, entails that a party must make up his mind and cannot equivocate by acquiescing in a judgment and later deciding to appeal against the same.” 46. The appellant’s decision to appeal the granting of the alternative relief clearly reflects an intention to have that relief set aside. However, in the circumstances of this case, specific performance was manifestly untenable due to the mistake arising from the existence of conflicting agreements and the lack of a true consensus between the parties. By dismissing the appeal, the court _a quo_ preserved the trial court’s order, which remained binding between the parties, thereby ensuring that the appellant was not deprived of any relief. Accordingly, the third ground of appeal is without merit and must fail. _**DISPOSITION**_ 47. Having carefully considered the facts and the law, it is evident that the appellant’s grounds of appeal are without merit. The doctrine of fictional fulfilment does not apply, as the first respondent’s conduct did not amount to deliberate obstruction, and the alleged payments are immaterial given the invalidity of the conflicting agreements. The court _a quo_ correctly characterised the dispute as involving personal rather than real rights, and the parties’ mutual mistake regarding the operative agreement and purchase price vitiated any purported contract. Finally, the appellant’s challenge to the alternative relief he himself sought constitutes an abuse of the court process and undermines the principle of finality. For these reasons, all grounds of appeal fail, and the judgment of the court _a quo_ stands. 48. Regarding costs, they follow the result. 49. Accordingly, it be and is hereby ordered as follows: “The appeal be and is hereby dismissed with costs.” **UCHENA JA :** I Agree **CHATUKUTA JA :**(LATE**)** _Diza Attorneys_ , appellant’s legal practitioners _Madzima & Company Law Chambers_, 1st respondent’s legal practitioners