MONDE & ANOTHER v DUMBARIMWE & ANOTHER (75 of 2026) [2026] ZWHHC 37 (28 January 2026)

5 HH 75-26 HCHC 6982/23 BALANCE MONDE and MARIAN FUNGAI NGONGONI (In her capacity as Executrix Dative of the estate late Innocent Zvitambo DR No. 3149/22) versus LUCIAN NCOKWANA DUMBARIMWE and MASVINGO CITY COUNCIL HIGH COURT OF ZIMBABWE **MANYANGADZE J** HARARE, 16 January 2025, 26 March 2025, 8 May 2025, 25 August 2025 & 28 January 2026 _**Trial**_ _N. Tawodzera_ , for the plaintiffs 1st defendant in person MANYANGADZE J: _INTRODUCTION_ On 26 October 2023, the plaintiffs issued summons against the defendants seeking the following relief: “a) An order declaring the agreement of sale between the 1st Plaintiff and the estate of the late Innocent Zvitambo and 1st Defendant dated 3 January 2002 in respect of stand No. 16337, Runyararo West, Masvingo valid and enforceable. b) An order compelling the 1st Defendant to cede and/ transfer his rights and interests in stand No. 16337 Runyararo West Masvingo to the 1st Plaintiff and the late Innocent Zvitambo within 30 days of the granting of the court order. c) An order directing the 2nd Defendant to cede and/or transfer the 1st defendant's rights and interest in stand No. 16337, Runyararo West in favour of the 1st plaintiff and the estate of the late Innocent Zvitambo. d) An order authorizing the Sheriff of the High Court to sign any cession/transfer documents in favour of the 1st Plaintiff and the estate of the late Innocent Zvitambo in the event of the 1st Defendant failing to comply with clause (b) above. e) Costs of suit on a legal practitioner and client scale.” According to the plaintiffs’ declaration, the first plaintiff and her late husband Innocent Zvitambo entered into an agreement of sale of an immovable property with the first defendant on 3 January 2002. The plaintiffs purchased a residential stand described as Stand No. 16 337 Runyararo West, Masvingo (“the property”), at a price of 190 000,00 Zimbabwean dollars. The plaintiffs paid the full purchase price and took possession of the property. The first defendant relocated from Masvingo before transfer of title to the property was effected. In 2022, the first defendant’s son visited the property and claimed ownership thereof. In his plea, the first defendant totally denies entering into an agreement of sale with the plaintiffs. He denies any knowledge of the plaintiffs or ever meeting them. He claims he only came to know of the alleged sale of the property when he received the plaintiffs’ summons. The first defendant alleges the agreement of sale is a fraudulent document. _PLAINTIFFS’ EVIDENCE_ The first witness for the plaintiffs was Precious Monde. She testified on behalf of the first plaintiff on the basis of a power of attorney granted by the first plaintiff as the latter has since relocated to South Africa. The witness’s evidence was brief. She told the court that the plaintiffs purchased the property from the first defendant in 2002. The second plaintiff, as executor of the estate of the late Innocent Matambo, wanted to wind up the estate but faced challenges as the property was still in the names of the first defendant, who was nowhere to be found. The witness stated that the plaintiffs stayed at the property, paying all bills and municipal rates. Under cross-examination, the witness indicated that no receipt was issued for the purchase price. She explained that the signing of the agreement was proof that the purchase price was paid in full. The witness further stated that when the first defendant could not be located, the second defendant gave the plaintiffs the go ahead in developing the property. The court sought clarification from the witness as they were some grey areas in her brief testimony. She said she was a sister-in-law to the first plaintiff. She explained that the first plaintiff and her family moved in soon after purchasing the property. They relocated to South Africa around 2006/07. It was not clear whether Innocent Zvitambo was alive at the time of relocation or he passed on thereafter. Be that as it may, the witness stated that she took over responsibility for the management of the property after this relocation. She indicated that the property was a core house that consisted of a small kitchen, a bedroom and a toilet. She further indicated that she and her own family stayed at a neighbouring property. The second witness’s testimony was even briefer. The witness, Kodzero Rushwaya, again, testified on the basis of a power of attorney. The power of attorney was granted by the second plaintiff, the executrix to the estate of the late Innocent Matambo. It was not clarified why the executrix herself could not come as a witness and had to give someone a power of attorney to testify on her behalf. Rushwaya’s evidence was mainly on the comparison of the first defendant’s signatures. The witness commented on the signatures on the defendant’s marriage certificate, the agreement of sale and the pre-trial-conference minutes. The witness said all these signatures are similar, suggesting they can only belong to the first defendant. This witness’s evidence concluded the plaintiffs’ case. _THE FIRST DEFENDANT’S EVIDENCE_ The first defendant, Lucian Ncokwana Dumbarimwe, was the first witness. His evidence, like that of the plaintiffs’ witnesses, was brief. The witness told the court that whilst in Masvingo, he stayed in company accommodation. He acquired the property in question through the company’s housing scheme for long serving employees. After he left employment, he relocated to Mutare with his family. He left the family in Mutare when he went to Chimanimani to participate in the land reform programme. He managed to acquire a piece of land on which he has been farming to date. The witness went on to tell the court that he left one Jonas Nyatsango at the Masvingo property, who took care of the bills and municipal rates. The witness stated that he later sent his son, who learnt that the property was allegedly sold to the plaintiffs. The witness vehemently denied any knowledge of the sale agreement. The witness further stated that he was later shown signatures on the said agreement and pre-trial conference documents, which signatures he did not recognise as his. The witness asserted that the whole process was fraudulent. The second witness was the first defendant’s son, Adrienne Takudzwa Dumbarumwe. He told the court that in 2013 he visited the property and saw no one there. He visited the property again in 2014, and he saw a young man whose name he did not supply. The man appeared to be a caretaker. In 2016, he went to the city council, the second defendant, and made enquiries about the title deeds. He was advised that the property was in the name of the first defendant. The witness went on to state that he made another visit in 2022, and found a family staying there. He was referred to Precious Monde, the plaintiffs’ first witness, who then informed him that the property was sold to the first plaintiff by the first defendant. That was the first time he learnt of the sale of the property. The witness further told the court that his mother had advised him that the property was his inheritance, as the only male child. The first defendant closed his case after this witness. _THE ISSUES_ The issues for determination in this matter are as set out in the joint pre-trial conference minutes. They are formulated as follows: “a) Whether or not the agreement of sale between the Plaintiffs and the 1st Defendant in respect of stand No. 16337, Runyararo West, Masvingo, is valid and enforceable. b) Issue of costs to be determined by the court.” _THE LAW_ Clearly, what is central to this matter is the validity and enforceability of the agreement of sale allegedly entered into between the plaintiffs and the first defendant. The trite position at law is that he or she who alleges must prove his or her allegations. See _Book_ v _Davidson_ 1988 (1) ZLR 365,_Zimasco (Pvt) Ltd_ v _Casper Tsvangirai & Ors_ SC 12/20. In _Zimasco_ v _Casper Tsvangirai,supra_ , Guvava J A stated, at p 12: “It is trite that “he who alleges must prove”. The maxim was applied in the cases of _Circle Tracking v Mahachi_ SC 4/07 and _Goliath v Member of the Executive Council for Health, Eastern Cape_ 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination. I share the sentiments expressed in _Delta Beverages (Pvt) Ltd v Murandu_ SC 38/15, where it was stated that: “I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.” Where there is an averment on the authenticity/authorship of documents, such as contractual agreements, again the one alleging such authenticity must substantiate their allegations. This is especially so where signatures are questioned. In the case of _Zhangare_ v _Chioza_ HH 136/23, at pages 5-6, Munangati-Manongwa J stated: “Where the plaintiff’s claim is based upon a contract, the onus in establishing the existence of that contract, its binding nature and the enforcibility thereof falls upon the plaintiff. See _Zimbabwe Passenger Company Limited v Packhorse (Pvt) Ltd_ SC 13/17 at p 18. In _casu_ the plaintiff seeks specific performance and in order for him to succeed the plaintiff has to 1. allege and prove the terms of the contract 2. allege and prove that he complied with the obligation cast on him as per the agreement or tender performance of those obligations. In civil matters the onus is discharged on a balance of probabilities. It is the court’s duty to decipher after weighing all the evidence at hand whether that onus has been discharged.” _ANALYSIS OF EVIDENCE AND APPLICATION OF THE LAW_ The evidence of the plaintiffs on the occurrence of the transaction, i.e. the sale of the property, was largely hearsay. Both witnesses for the plaintiff are not privy to the circumstances surrounding the sale of the property. They were not there and were not in any way involved in the negotiations and conclusion of the agreement. Where the very occurrence of the agreement is in issue, evidence of the purchaser and any persons who witnessed the signing of the agreement would be vital. No such evidence was placed before the court. The documents tendered by the plaintiffs as exhibits, such as rates payment invoices and building plans approval, are of little, if any probative value. They are all in the name of the first defendant. As far as the second defendant is concerned, these are rates paid by or on behalf of the named ratepayer, being the first defendant. The plaintiffs’ witnesses are not privy to how the documents were obtained. They do not constitute the second defendant’s consent to a cession of the agreement of sale. It is not clear why the plaintiffs made no effort in adducing this evidence. The first plaintiff was represented by her sister-in-law by virtue of a power of attorney. She indicated that she has no personal knowledge of the alleged sale. If she had at least witnessed negotiations for the sale of the property between her sister-in-law and the first defendant, her evidence would have been material. She gave a narration of what she learnt from the purchaser as to when and how the sale was concluded. That amounts to hearsay evidence. The first defendant, who was not represented, did not raise issues of its admissibility. The purchaser is said to be in South Africa, a neighbouring country. No explanation was given on any challenges faced in bringing her to testify. Where the defendant is denying ever meeting the said purchaser, it was in my view critical for the plaintiffs to bring this witness. The evidence of a sister-in-law who was not present at the time of the sale was not helpful in the circumstances. Travelling from South Africa is not as much of a hurdle as travelling from far away places like Canada or Australia. The absence of such a key witness inflicted a serious dent on the plaintiffs’ case. What this means is that the case turns solely on the validity or authenticity of the defendant’s signature as it appears on the disputed agreement. The defendant vehemently denies ever signing this agreement, as much as he vehemently denies ever meeting the purchaser. On the authenticity of the disputed signature, the only evidence placed on record is that of the plaintiffs’ second witness, Rushwaya. Rushwaya is an attorney by profession, practising at the law firm engaged by the plaintiffs. The witness is not a questioned documents expert. The evidence was that of comparison with the first defendant’s signature on other documents. The effect of this is that the plaintiffs are eliciting expert opinion evidence from a layperson who has no qualifications or experience in the analysis and verification of questioned documents. There is an attempt to shift the onus onto the first defendant. This is not in sync with the law. As already indicated, the onus rests on the plaintiffs to prove their case. In _Ex Constable Matseketsa_ v _The Commissioner General of Police & Anor_ HH79/18, Mangota J emphasized this point when he stated, at p 8: “The _onus_ lies on he who alleges. He must prove his case on a balance of probabilities. It is not for the defendant or the respondent to disprove what the plaintiff or the applicant alleges against him. That is the immutable rule of criminal or civil procedure. The applicant failed to prove his case on balance of probabilities. His application stands on nothing. It is devoid of merit. It is, in the premise, dismissed with costs.” Indeed, as shown in the joint pre-trial minutes, it was agreed that the burden rests on the plaintiffs to prove the matter in issue, that issue being the validity of the agreement of sale. It is my considered view, in the circumstances, that the plaintiffs have failed to discharge that onus. Their claim fails on that basis. I note that the first defendant, in his closing submissions, in addition to the prayer that the plaintiffs’ claim be dismissed, also seeks an order declaring that the sale agreement or session be declared null and void. I am unable to uphold the second aspect of the defendant’s prayer. There is no counter claim for the declaratory order that he seeks. There was no plaintiff in reconvention before me. The first defendant cannot therefore just bring up a claim in closing submission, which claim has not been dealt with during the hearing of the matter. I will dispose of the matter on the basis of the plaintiff’s claim. There is also no basis for the prayer for costs on the legal practitioner and client scale when the first defendant represented himself throughout the trial. _DISPOSITION_ **In the result, it is ordered that:** 1. The plaintiffs’ claim be and is hereby dismissed. 2. The plaintiffs shall bear the first defendant’s costs. **Manyangadze J:…………………………………………..** _Ngongoni, Tawodzera, Pavari & Partners_, plaintiffs’ legal practitioners