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Judgment

4 HH 513 - 25 HCH 1034/24 THE TRUSTEES FOR THE TIME BEING OF THE MATUTU FAMILY TRUST versus COURAGE KUDAKWASHE MUSHUNJE HIGH COURT OF ZIMBAMBWE MAMBARA J HARARE 26 and 27 June, 7, 8, 14 July & 8 September 2025 Summons Commencing Action F. T. Chingoma, for the plaintiff T. Chinyoka with T. Midzi. For the defendant MAMBARA J: This matter concerns an agreement of sale of immovable property. The plaintiff, The Trustees for the time being of the Matutu Family Trust, instituted summons against the defendant, Mr. Courage Kudakwashe Mushunje, seeking the following relief: a declaratory order that the cancellation of the Agreement of Sale dated 20 February 2023 was premature and in breach of contract; an order for specific performance compelling the defendant to render vacant possession of Stand No. 2018 Eastlea, Zvishavane, as per Clause 4 of the Agreement of Sale, within seven (7) days; an order directing the defendant to comply with Clause 3(ii) of the Agreement of Sale within thirty (30) days; andcosts of suit on the attorney-client scale. The defendant opposes the claim and has filed a counterclaim sounding in delict (malicious prosecution and defamation). The Court heard evidence from both sides, and the issues for determination, properly formulated, include whether the plaintiff has established its contractual claim for specific performance and whether the defendant’s delictual counterclaim is properly before the court in these proceedings. I now turn to summarize the evidence adduced. Plaintiff’s Case The plaintiff called two witnesses: Mr. Lewis Matutu (a trustee of the family trust and the primary actor in the transaction) and Mr. Tichaona Chivasa (the legal practitioner who drafted the sale agreement). Mr. Matutu testified that the Matutu Family Trust was in the business of acquiring properties, and that he became aware through a mutual acquaintance, one Daniel Shoko, that the defendant was urgently looking to sell his house. Initially Mr. Matutu was hesitant, but he agreed to meet the defendant given that he knew him personally and understood the defendant’s business was in need of funds. The property in question, Stand 2018 Eastlea, Zvishavane, was initially offered at US$90,000, which Mr. Matutu considered too high. After consulting his lawyer, Mr. Chivasa, and inspecting the house, he negotiated the price down to US$85,000. On 20 February 2023 the parties formalized the deal at Mr. Chivasa’s offices by signing a written Agreement of Sale for US$85,000. The plaintiff (buyer) paid US$80,000 in cash on signing, with the remaining US$5,000 to be paid within 7 days after the defendant completed certain minor plumbing works on the property. It was common cause that at the time of contracting, no issue was raised about any spousal consent, and the defendant represented that he had authority to sell. After execution of the agreement, Mr. Matutu took no immediate steps to occupy the house, awaiting the completion of the agreed repairs and transfer formalities.Barely two days later, however, the defendant attempted to cancel the sale. Mr. Matutu received a telephone call from the defendant and then a letter dated 22 February 2023 from the defendant, purporting to cancel the Agreement of Sale on the grounds that the defendant was receiving death threats from unknown persons. Notably, this cancellation letter expressly acknowledged that the plaintiff was not at fault and had committed no breach of the agreement. Mr. Matutu was perplexed and alarmed: he had just paid US$80,000 to a desperate seller and could not fathom why he would send agents to threaten the defendant as insinuated. Then, on 28 February 2023, Mr. Matutu received a second letter from the defendant this time demanding payment of the US$5,000 balance within 7 days, as if the sale were still proceeding. The inconsistency between the two letters, one cancelling the sale, the other enforcing it, raised serious red flags for the plaintiff. Mr. Matutu immediately referred the letters to his legal practitioner, suspecting bad faith or dishonesty on the defendant’s part.Subsequent events deepened the plaintiff’s misgivings. Through exchanges between the lawyers, a new explanation emerged: the defendant’s wife, Ms. Moreblessing Taruwona, had not consented to the sale and was objecting to it. On 23 February 2023, Messrs. Mutendi, Mudisi and Shumba acting for the wife, wrote to Mr. Chivasa claiming the house was a matrimonial home and that the wife’s consent had not been obtained, rendering the sale void ab initio. They indicated the US$80,000 deposit was “ready for collection” if the sale were unwound. Mr. Matutu, however, instructed his lawyer that he still wanted the bargain enforced (specific performance) and suspected that the defendant and his wife were colluding to deprive the trust of the property after taking its money. Indeed, evidence was led that the same law firm was representing both the defendant and his wife in their ostensibly adverse positions, which appeared highly irregular. Mr. Matutu became concerned that the US$80,000 was not truly being held for refund. His concerns were vindicated when the defendant’s lawyer eventually admitted that the money was not in their trust account at all – the defendant had already withdrawn it for his own use. Despite having received the purchase price, the defendant continued to collect rents from the property which he was leasing to third parties and did not relinquish possession.Throughout his testimony, Mr. Matutu emphatically denied the defendant’s allegation that the plaintiff, through Mr. Matutu or Mr. Chivasa, had misrepresented the existence of another cheaper property for sale in the area in order to induce the defendant to sell. He stated that the subject of an alternative property in the vicinity arose only in passing. At some point, his lawyer’s secretary had alerted Mr. Chivasa about a different house on sale, and Mr. Chivasa forwarded that information to the defendant merely to indicate that if the defendant wasn’t willing to proceed at $85,000, the plaintiff had other options. This was after the essential terms had already been agreed. Mr. Matutu insisted he never personally misled the defendant. The decision to buy the defendant’s house was made in good faith based on the defendant’s own offer and urgency, not on any false advert.Mr. Matutu also addressed the turmoil that followed the defendant’s cancellation. Unbeknownst to him initially, the defendant’s wife, Ms. Taruwona, had instituted proceedings in the magistrates’ court (apparently a Domestic Violence Act application) to bar the sale of the house. Mr. Matutu viewed that case as a stratagem to frustrate the sale – essentially a “sham” designed to legitimize the defendant’s backtracking. The Trust attempted to intervene in those magistrates’ court proceedings to protect its interest, but its joinder application was not entertained and was eventually withdrawn. With the prospect of losing both the house and the money, Mr. Matutu resolved to treat the defendant’s conduct as fraudulent. He filed a police report for fraud, which led to the defendant’s arrest and prosecution in the Gweru Magistrates’ Court. The criminal charge was that the defendant had stolen or defrauded the plaintiff of the US$80,000 by selling the house, taking the money and then repudiating. The matter went to trial, during which Mr. Matutu testified against the defendant. Ultimately, the magistrate acquitted the defendant on the reasoning that the dispute was of a civil nature rather than criminal.In response to the defendant’s counterclaims of defamation and malicious prosecution, Mr. Matutu stood firm that all his actions were lawfully and contractually motivated. He testified that any statements he made about the defendant during the Gweru criminal proceedings, for example, characterizing the defendant as dishonest in business were made under oath in court and solely in the context of recovering the Trust’s funds. He understood such statements to be privileged in law, and not actionable in defamation. Moreover, he denied harbouring malice in making the police report – given the circumstances (a sudden cancellation without breach by the plaintiff, followed by conflicting excuses and the vanishing of the money), it was, in his view, reasonable to seek the protection of the law. Mr. Matutu noted that he was not responsible for the duration of the defendant’s detention. Once he reported the matter, the criminal justice process took its course. Under cross-examination, Mr. Matutu’s evidence was unshaken. He maintained that the magistrate’s court “protection order” obtained by the defendant’s wife was vague and did not specifically refer to the sale property, which had been acquired by the defendant from a developer (Forit Properties) and, according to Mr. Matutu, was not truly a matrimonial asset in which the wife had a legal title. He also clarified that his past relationship with Daniel Shoko (formerly his driver) did not detract from the fact that it was Shoko who approached him on the defendant’s behalf about selling the house. When asked why he did not simply accept a refund upon receiving the cancellation letter of 22 February, Mr. Matutu replied that the Trust wanted the house, not to be repaid – specific performance was its primary goal. In any event, when he eventually did demand a refund through lawyers, the money was already gone, so enforcement of the contract became the only viable remedy.Mr. Tichaona Chivasa, the plaintiff’s second witness, corroborated and augmented Mr. Matutu’s account in all material respects. Mr. Chivasa is a legal practitioner in Zvishavane who acted as the conveyancing attorney for the sale. He confirmed that on 20 February 2023 the parties came to his office to formalize the agreement. He drafted the written Agreement of Sale for Stand 2018 Eastlea, reflecting the purchase price of US$85,000, an initial payment of US$80,000 (cash) by the Trust, and the balance of US$5,000 to be paid within 7 days of completion of specified plumbing and electrical works by the defendant. Before the contract was signed, Mr. Chivasa had accompanied Mr. Matutu and the defendant to inspect the property, and all terms were mutually agreed. He noted that both parties appeared willing and that the defendant did not raise any spousal veto at that time.Mr. Chivasa recounted the events immediately after the sale. He was notified on 22 February 2023 of the defendant’s letter cancelling the sale on the basis of alleged death threats. The very next day (23 February), he received correspondence from another firm (Mutendi Mudisi & Shumba) claiming to represent the defendant’s wife, Moreblessing Taruwona, stating that she “was not consulted” and was withholding consent to the sale – therefore the sale was void. That letter offered to refund the purchase price, implying that the money was available on demand. Mr. Chivasa communicated to the defendant’s lawyers that his client (the Trust) suspected collusion between the defendant and his wife and would insist on specific performance rather than a refund. He was instructed to prepare a court application for a declaratory order to affirm the sale’s validity (given the emerging dispute), but as tensions rose – including personal attacks directed at Mr. Chivasa by the defendant – the plaintiff opted to abandon that course and proceed via summons for direct relief.Importantly, Mr. Chivasa addressed the allegation of misrepresentation regarding an alternate purchaser/cheaper house. He categorically denied having deceived the defendant. What happened, he explained, was that his secretary, Beatrice, had informed him of a different house on sale in the same neighbourhood, and he passed that information to the defendant through a WhatsApp message, noting that if the defendant was not willing to sell his house for $85,000, the plaintiff might pursue the other property instead. This exchange took place on the morning of 20 February before the agreement was signed, seemingly as a negotiation tactic. According to Mr. Chivasa, by that point the defendant had already agreed in principle to sell – the advert was used to reinforce that $85,000 was a fair price. The defendant, for his part, appeared keen to proceed and did not balk. Thus Mr. Chivasa rejected any suggestion that the sale was induced by fraud on his part. Indeed, no such promise of providing a cheaper house is recorded in the written agreement, which contains an “entire agreement” clause. All of Mr. Chivasa’s letters after the fallout were written “without prejudice” in an attempt to settle the matter amicably, and at no point did the plaintiff accept the cancellation or abandon its claim to the house.Regarding the counterclaim, Mr. Chivasa testified that he was present when the defendant was arrested and that he also gave evidence in the defendant’s criminal trial. In his view, nothing untoward was done by the plaintiff: reporting a suspected fraud to the police was warranted by the defendant’s conduct. The plaintiff had paid an enormous sum and was suddenly left in a lurch with neither the property nor the money – turning to law enforcement under those circumstances was understandable. Mr. Chivasa echoed that any statements made in court by Mr. Matutu about the defendant’s character or business practices were relevant to the case and not meant to malign the defendant beyond the proceedings. He pointed out that the defendant’s eventual acquittal in the criminal court was largely because the matter was deemed civil. Indeed, the magistrate found the transaction “had become a civil case”, and notably the acquittal was achieved without the defendant even having to testify. His lawyer successfully argued no case to answer. An acquittal in a fraud case, Mr. Chivasa opined, does not automatically translate to malice or unreasonableness on the part of the complainant. It simply meant the higher standard of proof was not met, leaving the dispute to be resolved on a balance of probabilities in this Court.Under cross-examination, Mr. Chivasa remained a credible witness. He confirmed that when the defendant’s lawyers initially claimed the US$80,000 was secure in their trust account, he pressed for proof and was eventually told by Mr. Mudisi (the defendant’s attorney) that the defendant had in fact collected the money himself. He also refuted any notion that he had a personal interest in pushing the sale. When asked why he did not recommend his own client (the Trust) to pursue the “cheaper house” instead, he responded that by the time that information surfaced, the plaintiff had made up its mind to buy the defendant’s house. In other words, the Trust’s commitment to this transaction was already firm. Mr. Chivasa explained why the plaintiff withdrew the earlier declaratory application – the situation had become adversarial and it was more prudent to proceed by action with full evidence, rather than by motion. He also addressed the magistrate’s court consent order between defendant and wife. It was couched in general terms about “matrimonial property”, but it did not identify the specific house, and in his professional view the Eastlea house was not part of the couple’s joint estate. In fact, Mr. Chivasa had been involved in the original development and sale of that property to the defendant, and he had never encountered the wife in those transactions. Lastly, Mr. Chivasa stated that the defendant never gave notice that he had finished the plumbing repairs nor formally demanded the $5,000 balance from the plaintiff – the first indication was the contradictory letter of 28 February itself. Thus, from the plaintiff’s perspective, it was the defendant who jumped the gun by cancelling, and at no point was the plaintiff in mora or in breach.At the close of the plaintiff’s case, the Court found both Mr. Matutu and Mr. Chivasa to be credible witnesses. Their testimony was largely uncontroverted on key facts: the agreement was validly concluded, the plaintiff paid the bulk of the purchase price and was ready to pay the remainder, the defendant purported to cancel without any breach by the plaintiff, and the defendant indeed failed to return the money upon cancellation. The defence, in turn, proceeded to lead evidence in support of its pleaded defences of misrepresentation, repudiation, and estoppel, as well as in support of the counterclaim. Defendant’s Case The defendant, Mr. Courage Kudakwashe Mushunje, was the sole witness in his defence. His position was that the Agreement of Sale should be deemed void or voidable due to material misrepresentation. He claimed that he was induced to sell his house by the false representation that if he did so, he would be able to purchase a cheaper house in the same locality and pocket the difference. In other words, the defendant asserted that he entered the contract under a misconception intentionally fostered by the plaintiff’s agent (Mr. Chivasa) – a misconception that fundamentally undermined true consensus.Mr. Mushunje testified that on 19 February 2023, Mr. Matutu approached him expressing interest in buying the house. The defendant stated he told Mr. Matutu that his asking price was US$100,000, to which Mr. Matutu responded with an offer around US$70,000 before leaving to consider the matter. The next morning, 20 February, Mr. Matutu contacted the defendant and directed him to meet at Mr. Chivasa’s offices to conclude the deal. Prior to going to the lawyer, the parties met at the house for a final inspection and to agree on price. It was during this meeting, according to the defendant, that Mr. Chivasa sent him a WhatsApp message containing an advertisement for another house priced at US$65,000 in the same Eastlea area. Appended to that advert was a note from Mr. Chivasa stating, “Look, this is a house on sale for US$65,000 in the same locality, but I want Mr. Matutu to buy your house.” This communication had a significant impact on the defendant’s mind. He testified that Mr. Chivasa actively urged him to go through with the sale, suggesting that if he sold his house for $85,000, he could then buy the other property for $65,000 and have some “change” left over. The defendant stated he trusted Mr. Chivasa’s word – not only was Mr. Chivasa a legal professional who had previously handled transactions for both the defendant and the property’s original developer, but the defendant also knew him socially and had no reason to suspect deceit. Feeling reassured by this prospect of a replacement home and cash surplus, the defendant agreed on the price of US$85,000 and proceeded to sign the agreement.Notably, the defendant disputed the narrative that he had solicited the sale via Daniel Shoko. Contrary to Mr. Matutu’s account, Mr. Mushunje claimed that it was Daniel Shoko who approached him, saying the plaintiff trust was looking for properties to buy. He denied that his car sales business was “in dire need of money” at the time – implying that he was not acting out of desperation but rather was tempted by a business opportunity to sell at a profit. The defendant also maintained that the advertised “other house” was a fiction: after the sale, he tried to follow up on that lead and discovered the phone number provided did not exist in service. He thus came to believe that the advert had been concocted purely to pressure him into selling.The defendant’s version of the aftermath is as follows. On 20 February, after signing, the plaintiff handed over US$80,000 in cash, which the defendant took into his possession. By 22 February 2023 – roughly 48 hours later – the defendant resolved to resile from the contract, ostensibly upon realizing that he had been misled. He drafted and sent the letter of cancellation dated 22 February 2023, citing as reasons: (i) the “threats” he was receiving (which he attributed to people sent by Mr. Matutu, including Daniel Shoko) and (ii) a serious dispute with his wife who was furious that he had sold the house without her consent. In his testimony, Mr. Mushunje elaborated that Moreblessing Taruwona was indeed his wife, that she had contributed to the completion of the house, and that she objected to the sale – hence he felt compelled to back out to preserve his marriage. It is common cause that the house had been acquired by the defendant prior to the marriage, but the defendant asserted it had since become matrimonial property due to the wife’s contributions.After sending the cancellation letter, the defendant attempted to refund the US$80,000. He testified that he asked Mr. Matutu (via WhatsApp) where he should deposit or deliver the money, and was instructed to take it to Mr. Chivasa’s office. The defendant says he indeed went to Mr. Chivasa and tendered the cash back, but Mr. Chivasa refused to accept it, stating he had no such instructions from his client. Finding himself unable to return the money directly to the plaintiff, the defendant took steps to secure it elsewhere. He deposited the bulk of it with his own legal practitioners (Mutendi, Mudisi & Shumba) and later used portions of it to cover legal fees as various disputes unfolded. Notably, by the time of the Pre-Trial Conference in this case, the defendant candidly admitted he no longer had the cash on hand – he had converted some of it to assets – but claimed he could raise it if given time.The defendant explained the seemingly inconsistent 28 February 2023 letter (wherein his lawyers demanded the $5,000 balance and purported to give notice of breach). He stated under oath that after the plaintiff, through counsel, rejected the cancellation as invalid, he (the defendant) felt constrained to “revive” the contract on his terms. The 28 February letter, in his view, was an attempt to enforce what he believed was the plaintiff’s remaining obligation (payment of the balance) while simultaneously documenting that the outstanding repairs had been completed within two days of the sale. He testified that he finished the plumbing work and installing a lithium battery by 22 February, a point not directly communicated to the plaintiff except by implication in the letter. The defendant admitted during cross-examination that he did not explicitly notify the plaintiff on 22 or 23 February that the repairs were done, nor did he formally call for the $5,000 payment under the contract. Instead, he tried to use the 28 February letter both as a post facto notice that the contract was (from his perspective) still alive and that the plaintiff should perform, and as a strategy to bolster his stance in the impending tussle. This manoeuvre, however, only “created confusion” (in the plaintiff’s words) given that the plaintiff had never waived its insistence on the sale and had not accepted the cancellation in the first place.In addition to the alleged misrepresentation, the defendant raised a legal argument that the plaintiff’s conduct amounted to repudiation or estoppel. He pointed to the fact that the plaintiff’s own lawyer, at one stage, labelled the sale “void ab initio” when corresponding with the wife’s lawyers. The defendant contended that by treating the contract as void (in the alternative) and initially suing for a declaratory order or even a refund (before the specific performance claim was re-asserted), the plaintiff had elected to cancel or at least affirm the cancellation, and could not later approbate and reprobate by claiming the contract was valid. In essence, he argued the Trust’s initial resort to a declaratory application, which was later withdrawn, and the act of reporting him to the police for “fraud” (which presupposed the sale was nullified and money stolen) amounted to repudiation by the plaintiff of the contract, thereby estopping the plaintiff from later insisting on the contract’s validity. The plaintiff, in rebuttal, maintained that those steps were all consistent with an effort to hold the defendant to the contract or to recover the purchase price in lieu of specific performance, and not an abandonment of the contract. This estoppel/repudiation defence, therefore, turns on legal interpretation of the plaintiff’s post-contract conduct. The Counterclaim Alongside his defence, the defendant lodged a counterclaim sounding in delict. He claimed $50,000 in general damages (later particularized as $45,000 for business losses and $5,000 for reputational harm, though the pleadings were somewhat nebulous) arising from two torts: defamation and malicious prosecution. The factual basis was that Mr. Matutu, during the Gweru criminal trial, allegedly defamed him by calling him “a crooked businessman” who uses clients’ funds to buy vehicles through a company called B4 Forward), causing people to distrust him. The defendant said this statement, made in open court and reported in the small community of Zvishavane, severely damaged his car sales business, leading to loss of income such that he struggled to pay his family’s expenses. As for malicious prosecution, the defendant averred that Mr. Matutu’s report to the police was made maliciously and without probable cause, leading to his arrest, two weeks of incarceration (initial denial of bail), and the ordeal of a criminal trial, all to his prejudice. He sought compensation for the deprivation of liberty and the legal costs he expended. He testified to about US$15,000 in legal fees paid across the Zvishavane, Gweru, and High Court bail proceedings.It is common cause that the defendant’s business reputation in a small town may have suffered due to the publicity of the arrest and trial. However, under cross-examination he conceded that he had no independent evidence of specific loss. No financial records were produced to quantify the downturn, and no witnesses were called to corroborate the alleged reputational harm. He also could not substantiate the figure of US$15,000 with receipts or invoices from his lawyers. More fundamentally, the plaintiff’s counsel put to him that any statements made by Mr. Matutu in court were absolutely privileged in defamation law, and thus not actionable. The defendant insisted the remarks went beyond acceptable testimony, but this is a legal question the Court will address. On the malicious prosecution claim, it was put to the defendant that, considering the timeline – (i) he signed an agreement and took the plaintiff’s money; (ii) he unilaterally cancelled within two days without legal cause; (iii) he involved his wife to thwart the sale; and (iv) he failed to promptly refund the money – the plaintiff was justified in suspecting criminal fraud and seeking police intervention. The defendant disagreed, maintaining that the criminal case was pursued out of spite rather than genuine cause. He felt the plaintiff should simply have sued for civil remedies and that the criminal route was unwarranted. This difference of perspective is noted. Assessment of Evidence The Court has carefully considered the testimonies and exhibits. In large measure, the core facts are not in dispute. What is in dispute is their legal effect. The agreement of sale is admitted, as are the payments made and the letters exchanged. The defendant’s misrepresentation defence hinges on conversations and a WhatsApp message whose content is largely acknowledged. Mr. Chivasa admitted sending an advert and suggesting the plaintiff wanted the defendant’s house rather than the other. The crucial question is whether that amounted to a fraudulent misrepresentation inducing the sale. On that score, the Court finds that it did not. The evidentiary record shows that the defendant was indeed keen to sell. He initiated contact through Daniel Shoko, and he negotiated the price with Mr. Matutu. The WhatsApp advert about a US$65,000 house was real in the sense an advertisement was forwarded, though it turned out to be unavailable or non-existent later. There is no proof that Mr. Matutu or Mr. Chivasa fabricated the advert. More likely it was an actual listing that could not be pursued afterward. In any event, even if the advert were false, the defendant affirmed the contract in writing (the 20 Feb agreement) without any clause tying it to the availability of another property. Clause 11 of the written agreement stipulated that it contained the entire understanding of the parties. The alleged promise of a cheaper house was not included, suggesting it was not a decisive term but rather a negotiating puff or collateral suggestion. By signing the contract as is, the defendant assumed the risk that any side discussions not captured in the contract would not be enforceable. The Court is not satisfied that the defendant was duped in a legal sense; rather, he may have misjudged his own willingness to sell in the face of personal pressures like his wife’s reaction. His regret does not equate to an actionable misrepresentation by the plaintiff.The cancellation of 22 February 2023 was therefore a breach by the defendant. The agreement was barely two days old. The plaintiff had performed its principal obligation, payment of the deposit, and no contractual breach by the plaintiff had occurred. The defendant’s justifications for cancellation – fear from alleged threats and spousal disapproval – were extraneous to the plaintiff’s conduct. Significantly, the cancellation letter itself admitted no fault on the part of the plaintiff. It follows that the purported cancellation was premature and wrongful, as the plaintiff seeks to have declared. The subsequent letter of 28 February, attempting to cure the situation, did not help the defendant’s cause. If anything, it evidenced mala fides by oscillating positions. The defendant’s own evidence was that he sent the second letter because the first was “rejected” – effectively conceding that the plaintiff never agreed to terminate the contract. The sale agreement, in law, remained valid and binding throughout this episode. As for the plaintiff’s conduct after the cancellation, the Court does not view the plaintiff’s pursuit of legal remedies (declaratory relief, demand for refund, or criminal complaint) as a repudiation of the contract. The plaintiff’s primary stance was always that the contract should be honoured. The initiation of a declaratory order application (later withdrawn) is not an unequivocal abandonment of the contract. To the contrary, it sought a judicial pronouncement of the contract’s validity. Even the act of reporting the matter to the police, while aggressive, was essentially an attempt to prevent the defendant from unlawfully benefiting from what the plaintiff believed, correctly, to be a binding sale. It did not communicate to the defendant that the plaintiff no longer held him to the bargain; if anything, it underscored how serious the plaintiff was about getting either the house or its money back. Thus, the estoppel defence falls away. The plaintiff did not affirm any cancellation by the defendant; it consistently treated the defendant as in breach and sought enforcement or restitution. There was no “election” by the innocent party to cancel – all evidence is that the plaintiff insisted on performance or recompense. Therefore, the contract remained on foot, and the plaintiff is entitled to seek specific performance.Considerable attention was given to an order obtained in the Zvishavane Magistrates’ Court, arising from a dispute between Defendant and his estranged wife. The Defendant argued that until such order is set aside, Plaintiff’s claim for specific performance cannot succeed. Having considered the order and submissions, I am not persuaded. The order, though rooted in the Defendant’s marital dispute, does not declare the property to be matrimonial property, nor does it interdict transfer or performance under the contract at issue. At most, it reflects a collateral dispute. It is trite that a subsisting but irrelevant order cannot bar enforcement of an otherwise valid agreement unless it directly speaks to ownership, transfer, or disposition of the property. See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) at 157, where the Supreme Court warned against extending the ambit of collateral orders beyond their clear terms. Consequently, the Zvishavane order does not preclude the Plaintiff’s claim.Having found the defendant liable for breach, the Court turns to the appropriate remedy. The plaintiff bargained for a specific immovable property, which is unique. Damages, return of the $80,000 plus perhaps interest or escalation would not adequately compensate the plaintiff, especially given that the property’s value might have increased and the Trust’s purpose was to acquire real estate, not to engage in short-term loans. Furthermore, the defendant’s behaviour, pocketing the money, resisting refund, yet holding onto the house, suggests that simple damages would reward the defendant’s wrongdoing. Specific performance is a favoured remedy in our law for valid contracts absent special circumstances disfavouring it. Here, the defendant raised no impossibility of performance. He admitted at trial that he could give vacant possession. He was occupying only part of the house and collecting some rent, and that he completed the minor repairs long ago. There is thus no bar to compelling him to perform. The plaintiff has demonstrated that it was ready, willing and able to fulfil its own outstanding obligations. Indeed, in closing submissions it tendered the $5,000 balance upon inspection of the completed works. The contract had become perfecta with all suspensive conditions (if any) fulfilled, and risk and profit in the property had already passed to the purchaser by operation of the agreement. Equity strongly favours enforcement. The Trust paid a substantial sum and acted in good faith, whereas the defendant attempted to resile for reasons outside the contract. The Court therefore will grant specific performance, ordering the defendant to transfer ownership and give vacant possession of 2018 Eastlea, Zvishavane to the plaintiff within a defined period. Counterclaim, Admissibility and Merits A significant procedural issue arises from the defendant’s counterclaim for defamation and malicious prosecution: Can a defendant properly introduce a delictual counterclaim in a suit that is purely contractual in nature? After careful consideration, the Court is persuaded that the counterclaim is misplaced in these proceedings. Our rules of court and case law impose certain limits on the scope of claims in reconvention. In Africa Consolidated Resources (Pvt) Ltd & Ors v Minister of Mines and Mining Development HH 205-10, the High Court observed that a counter-application (or counterclaim) must at minimum be “an answer to the main claim”, meaning it should counter or meet the plaintiff’s claim in a comparable way. The court held that: “A counter-application must, in the very least, in order to qualify as such in terms of the Rules, be an answer to the main claim … Put differently it must seek to counter in a similar vein, the application brought by the first respondent.” Authoritative texts echo this principle. Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa (5th ed, Juta, 2012) at p 374 states: “It is open to the defendant to raise a counterclaim to the plaintiff’s claim. In this case also, sufficient detail must be given of the claim to enable the court to decide whether it is well-founded. The counterclaim may be unliquidated and need not necessarily arise out of the same set of facts as the claim in convention, though it must be of such a nature as to afford a defence to the claim.” In other words, a counterclaim can be a weapon of attack, but it should also serve as a shield – it should be capable of reducing or negating the plaintiff’s claim if established.This authority was considered in Tahilram v Kayser & Ors [2021] ZAGPJHC 751 where the Court clarified: “…it is sufficient if the issues in the claim in convention and those in the claim in reconvention depend upon substantially the same questions of law and fact, or if overriding considerations of justice, equity or convenience support the court’s discretion …” Older common-law jurisprudence elaborated that notion. The High Court of Swaziland, citing Spilhaus & Co. Ltd v Coreejees 1966 (1) SA 525 (C), explained that the counterclaim and the claim in convention must generally be “of the same genus” such that one can cancel out the other, “pound for pound”. If a counterclaim is of a different genus altogether, it may not qualify as a true defence to the main claim. For example – to borrow a classic illustration from the case law – a counterclaim for slander (defamation) cannot meaningfully be set off against a claim for repayment of a debt. They are apples and oranges; success on the slander claim does not answer whether the debt is owed. A counterclaim must have a sufficient connection to the subject matter of the main action to be conveniently tried together.In the United States of America, Rule 13 of the Federal Rules of Civil Procedure draws a distinction between compulsory and permissive counterclaims. As explained in Wright & Miller, Federal Practice and Procedure, §2380 (3d ed), pp 291–293: “When a counterclaim is permissive, its adjudication does not operate as a defence to plaintiff’s action but rather as an independent claim consolidated for convenience.” The defendant’s counterclaim here fails these thresholds. The plaintiff’s claim is contractual: enforcement of a sale of land. The defendant’s counterclaim sounds in personal delict and is factually distinct – it concerns what happened after the contract fallout, essentially an allegedly malicious response by the plaintiff (reporting to police and statements in court). These facts are not intertwined with the formation, performance, or breach of the sale agreement; they are a collateral aftermath. Winning or losing the defamation/malicious prosecution claim would not determine, or be determined by, the issues needed to resolve the specific performance claim. They require different legal elements and evidence (e.g. malice, absence of probable cause, reputational damage) that have no bearing on whether the contract was breached or should be enforced.The defendant’s counsel, seemingly invoked a more liberal view from Tahilram v Kayser & Ors (supra), (although he did not cite this authority) arguing that exact symmetry of causes of action is not required for a counterclaim. It is true – the Tahilram judgment clarified that a claim in reconvention “need not mirror or closely resemble the main claim” as long as substantially the same questions of law or fact are involved, or considerations of justice and convenience justify hearing them together. However, even under that test, the present counterclaim is untenable. There is no substantial overlap of factual or legal issues between the contract enforcement claim and the delictual claims. The contract claim turns on the agreement’s validity, breach, and remedy – issues of contract law and the facts of the sale. The counterclaim would turn on privilege in judicial proceedings, the reasonableness of making a police report, and proof of damages to reputation/business – issues of tort law far afield from the sale. The only link is that they arose sequentially (the counterclaim emanated from the plaintiff’s reaction to the breach), but that is not a logical connection warranting a combined trial. The defendant’s claim in reconvention here is a separate and distinct delictual claim which is not interwoven with the plaintiff’s claim either in fact or in law. It does not constitute a valid defence against the main claim. Allowing it to proceed in this action would effectively convert a simple contract dispute into a combined contract/tort trial, which our rules do not encourage absent a clear nexus.Comparative common-law authorities buttress this stance. The Malaysian Court of Appeal in Alloy Consolidated Sdn Bhd v Anjari Properties Sdn Bhd [2009] 4 MLJ 833, faced with an analogous scenario, held that a counterclaim must be refused if it lacks a sufficient link to the principal claim. In that case (citing Esso Standard Malaya Bhd v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168 @p.170), the court struck out a defamation counterclaim in a contract debt action, emphatically stating that justice required separate proceedings. The court wrote: “…it is settled law that a counterclaim cannot be maintained unless it is shown that the relief claimed is sufficiently connected with or allied to the subject matter of the principle claim as to make it necessary in the interest of justice that it should be dealt with along with the claim. Thus, a counterclaim for slander cannot be maintained in a claim for money lent.” Crucially, even if allowed, it in no way diminishes the plaintiff’s recovery on the main claim – it would only result in a separate judgment for the defendant if proven. This underscores that an unrelated counterclaim is not a true “defence” to the plaintiff’s claim, but rather a separate lawsuit tacked on. For these reasons, the Court holds that the defendant’s counterclaim for malicious prosecution and defamation is not properly before the court in this action. It does not meet the rule or case law criteria to qualify as a claim in reconvention aimed at “countering” the plaintiff’s claim. The appropriate course would have been for the defendant to pursue such claims by separate action. As Gubbay CJ noted in Independent Petroleum Co. Ltd. v. Mobility (Pvt) Ltd. 1989 (1) ZLR 220 (SC), a counterclaim should not be permitted if it will obscure the real issues or unduly complicate the proceeding. Here, grafting a tort claim onto this contract case would do just that.Even if the counterclaim were entertainable, it would fail on its merits. The defendant has not proven the elements of either delict to the required standard. On the defamation claim: The statements attributed to Mr. Matutu were made in judicial proceedings (the criminal trial) and are cloaked with absolute privilege. No civil liability arises for testimony given in court, even if false or harmful, so long as it was relevant to the case. Mr. Matutu’s remarks about the defendant’s business conduct were part of explaining his state of mind (why he trusted or distrusted the defendant) and thus pertinent to the fraud inquiry. They cannot ground a defamation suit. Moreover, the defendant led no independent evidence that those remarks, assuming they seeped beyond the courtroom, caused the quantifiable decline of his business. His car sales business may well have suffered from the mere fact of his arrest and prosecution, matters of public record, which is not defamatory publication by the plaintiff but a consequence of lawful process. On the malicious prosecution claim: The defendant needed to prove that the plaintiff (i) instigated the criminal proceedings, (ii) without reasonable and probable cause, (iii) with malice (an improper motive), and that (iv) the proceedings terminated in the defendant’s favour. The acquittal satisfies (iv), and the plaintiff did initiate the report (though the actual prosecution was then taken over by the State). However, the evidence does not show a lack of reasonable cause. Given the scenario unfolding in late February 2023 – the defendant had taken a large sum and unilaterally cancelled under dubious pretences – a reasonable person in the plaintiff’s position could suspect a fraud or theft and seek police intervention. Indeed, the Magistrate’s finding was not that the report was unfounded, but that the matter was more appropriate for civil court, a subtler conclusion than a finding of false accusation. As to malice, the plaintiff’s dominant motive appears to have been the recovery of its property or money, not an intent to oppress the defendant. Malice cannot be inferred simply from the fact that the plaintiff chose a criminal avenue. One can be earnestly mistaken about the nature of a dispute without being malicious. Furthermore, the defendant has not demonstrated any damages specifically resulting from the prosecution beyond what the law considers ordinary (e.g. arrest and detention per se, if lawfully done under criminal process, are not heads of damage unless abuse is proven). He alleged legal expenses and loss of income, but as noted, provided no proof of the $15,000 fees or concrete business losses. On a balance of probabilities, the counterclaim would be dismissed for want of proof even if it were validly before me. Conclusion and Disposition In the final analysis, the plaintiff’s claim succeeds and the defendant’s counterclaim fails. The evidence establishes that the defendant’s cancellation of the sale was unlawful and ineffective, and that the plaintiff is entitled to hold the defendant to the agreement. Specific performance is appropriate and just in the circumstances. The counterclaim is not only procedurally improper but devoid of merit in fact and law.The plaintiff prayed for costs on the punitive attorney-client scale. Such costs are warranted only in exceptional cases involving reprehensible conduct. In casu, the defendant’s behaviour was indeed egregious. He received an $80,000 windfall from the plaintiff, then attempted to dodge his obligations without legal cause, deploying ruses (including his wife’s claim and oscillating positions) to retain both the money and the property. He put the plaintiff through unnecessary legal hoops – from High Court applications to criminal proceedings – and even in this trial, much of his defence was contrived or based on false pretences (e.g. the unfounded misrepresentation claim, the unsubstantiated counterclaim seemingly calculated to offset the debt). The Trust has been kept out of its money and property for well over a year, while the defendant enjoyed the use of both. His intransigence and duplicity merit censure. I thus consider it a proper case to award attorney-client costs in favour of the plaintiff. For the reasons above, it is ordered that: The cancellation of the Agreement of Sale of Stand No. 2018 Eastlea, Zvishavane dated 20 February 2023 by the defendant is declared premature and in breach of contract.The defendant shall deliver vacant possession of Stand 2018, Eastlea, Zvishavane, to the plaintiff within seven (7) days of this order.The defendant shall comply with clause 3(ii) of the Agreement of Sale within thirty (30) days.The defendant’s counterclaim is dismissed.Costs are awarded to the plaintiff on the legal practitioner and client scale. Mambara J: ……………………………………………………… Chingoma Attorneys, plaintiff’s legal practitioners H. Tafa & Associates, defendant’s legal practitioners 4 HH 513 - 25 HCH 1034/24 4 HH 513 - 25 HCH 1034/24 THE TRUSTEES FOR THE TIME BEING OF THE MATUTU FAMILY TRUST versus COURAGE KUDAKWASHE MUSHUNJE HIGH COURT OF ZIMBAMBWE MAMBARA J HARARE 26 and 27 June, 7, 8, 14 July & 8 September 2025 Summons Commencing Action F. T. Chingoma, for the plaintiff T. Chinyoka with T. Midzi. For the defendant MAMBARA J: This matter concerns an agreement of sale of immovable property. The plaintiff, The Trustees for the time being of the Matutu Family Trust, instituted summons against the defendant, Mr. Courage Kudakwashe Mushunje, seeking the following relief: a declaratory order that the cancellation of the Agreement of Sale dated 20 February 2023 was premature and in breach of contract; an order for specific performance compelling the defendant to render vacant possession of Stand No. 2018 Eastlea, Zvishavane, as per Clause 4 of the Agreement of Sale, within seven (7) days; an order directing the defendant to comply with Clause 3(ii) of the Agreement of Sale within thirty (30) days; and costs of suit on the attorney-client scale. The defendant opposes the claim and has filed a counterclaim sounding in delict (malicious prosecution and defamation). The Court heard evidence from both sides, and the issues for determination, properly formulated, include whether the plaintiff has established its contractual claim for specific performance and whether the defendant’s delictual counterclaim is properly before the court in these proceedings. I now turn to summarize the evidence adduced. Plaintiff’s Case The plaintiff called two witnesses: Mr. Lewis Matutu (a trustee of the family trust and the primary actor in the transaction) and Mr. Tichaona Chivasa (the legal practitioner who drafted the sale agreement). Mr. Matutu testified that the Matutu Family Trust was in the business of acquiring properties, and that he became aware through a mutual acquaintance, one Daniel Shoko, that the defendant was urgently looking to sell his house. Initially Mr. Matutu was hesitant, but he agreed to meet the defendant given that he knew him personally and understood the defendant’s business was in need of funds. The property in question, Stand 2018 Eastlea, Zvishavane, was initially offered at US$90,000, which Mr. Matutu considered too high. After consulting his lawyer, Mr. Chivasa, and inspecting the house, he negotiated the price down to US$85,000. On 20 February 2023 the parties formalized the deal at Mr. Chivasa’s offices by signing a written Agreement of Sale for US$85,000. The plaintiff (buyer) paid US$80,000 in cash on signing, with the remaining US$5,000 to be paid within 7 days after the defendant completed certain minor plumbing works on the property. It was common cause that at the time of contracting, no issue was raised about any spousal consent, and the defendant represented that he had authority to sell. After execution of the agreement, Mr. Matutu took no immediate steps to occupy the house, awaiting the completion of the agreed repairs and transfer formalities. Barely two days later, however, the defendant attempted to cancel the sale. Mr. Matutu received a telephone call from the defendant and then a letter dated 22 February 2023 from the defendant, purporting to cancel the Agreement of Sale on the grounds that the defendant was receiving death threats from unknown persons. Notably, this cancellation letter expressly acknowledged that the plaintiff was not at fault and had committed no breach of the agreement. Mr. Matutu was perplexed and alarmed: he had just paid US$80,000 to a desperate seller and could not fathom why he would send agents to threaten the defendant as insinuated. Then, on 28 February 2023, Mr. Matutu received a second letter from the defendant this time demanding payment of the US$5,000 balance within 7 days, as if the sale were still proceeding. The inconsistency between the two letters, one cancelling the sale, the other enforcing it, raised serious red flags for the plaintiff. Mr. Matutu immediately referred the letters to his legal practitioner, suspecting bad faith or dishonesty on the defendant’s part. Subsequent events deepened the plaintiff’s misgivings. Through exchanges between the lawyers, a new explanation emerged: the defendant’s wife, Ms. Moreblessing Taruwona, had not consented to the sale and was objecting to it. On 23 February 2023, Messrs. Mutendi, Mudisi and Shumba acting for the wife, wrote to Mr. Chivasa claiming the house was a matrimonial home and that the wife’s consent had not been obtained, rendering the sale void ab initio. They indicated the US$80,000 deposit was “ready for collection” if the sale were unwound. Mr. Matutu, however, instructed his lawyer that he still wanted the bargain enforced (specific performance) and suspected that the defendant and his wife were colluding to deprive the trust of the property after taking its money. Indeed, evidence was led that the same law firm was representing both the defendant and his wife in their ostensibly adverse positions, which appeared highly irregular. Mr. Matutu became concerned that the US$80,000 was not truly being held for refund. His concerns were vindicated when the defendant’s lawyer eventually admitted that the money was not in their trust account at all – the defendant had already withdrawn it for his own use. Despite having received the purchase price, the defendant continued to collect rents from the property which he was leasing to third parties and did not relinquish possession. Throughout his testimony, Mr. Matutu emphatically denied the defendant’s allegation that the plaintiff, through Mr. Matutu or Mr. Chivasa, had misrepresented the existence of another cheaper property for sale in the area in order to induce the defendant to sell. He stated that the subject of an alternative property in the vicinity arose only in passing. At some point, his lawyer’s secretary had alerted Mr. Chivasa about a different house on sale, and Mr. Chivasa forwarded that information to the defendant merely to indicate that if the defendant wasn’t willing to proceed at $85,000, the plaintiff had other options. This was after the essential terms had already been agreed. Mr. Matutu insisted he never personally misled the defendant. The decision to buy the defendant’s house was made in good faith based on the defendant’s own offer and urgency, not on any false advert. Mr. Matutu also addressed the turmoil that followed the defendant’s cancellation. Unbeknownst to him initially, the defendant’s wife, Ms. Taruwona, had instituted proceedings in the magistrates’ court (apparently a Domestic Violence Act application) to bar the sale of the house. Mr. Matutu viewed that case as a stratagem to frustrate the sale – essentially a “sham” designed to legitimize the defendant’s backtracking. The Trust attempted to intervene in those magistrates’ court proceedings to protect its interest, but its joinder application was not entertained and was eventually withdrawn. With the prospect of losing both the house and the money, Mr. Matutu resolved to treat the defendant’s conduct as fraudulent. He filed a police report for fraud, which led to the defendant’s arrest and prosecution in the Gweru Magistrates’ Court. The criminal charge was that the defendant had stolen or defrauded the plaintiff of the US$80,000 by selling the house, taking the money and then repudiating. The matter went to trial, during which Mr. Matutu testified against the defendant. Ultimately, the magistrate acquitted the defendant on the reasoning that the dispute was of a civil nature rather than criminal. In response to the defendant’s counterclaims of defamation and malicious prosecution, Mr. Matutu stood firm that all his actions were lawfully and contractually motivated. He testified that any statements he made about the defendant during the Gweru criminal proceedings, for example, characterizing the defendant as dishonest in business were made under oath in court and solely in the context of recovering the Trust’s funds. He understood such statements to be privileged in law, and not actionable in defamation. Moreover, he denied harbouring malice in making the police report – given the circumstances (a sudden cancellation without breach by the plaintiff, followed by conflicting excuses and the vanishing of the money), it was, in his view, reasonable to seek the protection of the law. Mr. Matutu noted that he was not responsible for the duration of the defendant’s detention. Once he reported the matter, the criminal justice process took its course. Under cross-examination, Mr. Matutu’s evidence was unshaken. He maintained that the magistrate’s court “protection order” obtained by the defendant’s wife was vague and did not specifically refer to the sale property, which had been acquired by the defendant from a developer (Forit Properties) and, according to Mr. Matutu, was not truly a matrimonial asset in which the wife had a legal title. He also clarified that his past relationship with Daniel Shoko (formerly his driver) did not detract from the fact that it was Shoko who approached him on the defendant’s behalf about selling the house. When asked why he did not simply accept a refund upon receiving the cancellation letter of 22 February, Mr. Matutu replied that the Trust wanted the house, not to be repaid – specific performance was its primary goal. In any event, when he eventually did demand a refund through lawyers, the money was already gone, so enforcement of the contract became the only viable remedy. Mr. Tichaona Chivasa, the plaintiff’s second witness, corroborated and augmented Mr. Matutu’s account in all material respects. Mr. Chivasa is a legal practitioner in Zvishavane who acted as the conveyancing attorney for the sale. He confirmed that on 20 February 2023 the parties came to his office to formalize the agreement. He drafted the written Agreement of Sale for Stand 2018 Eastlea, reflecting the purchase price of US$85,000, an initial payment of US$80,000 (cash) by the Trust, and the balance of US$5,000 to be paid within 7 days of completion of specified plumbing and electrical works by the defendant. Before the contract was signed, Mr. Chivasa had accompanied Mr. Matutu and the defendant to inspect the property, and all terms were mutually agreed. He noted that both parties appeared willing and that the defendant did not raise any spousal veto at that time. Mr. Chivasa recounted the events immediately after the sale. He was notified on 22 February 2023 of the defendant’s letter cancelling the sale on the basis of alleged death threats. The very next day (23 February), he received correspondence from another firm (Mutendi Mudisi & Shumba) claiming to represent the defendant’s wife, Moreblessing Taruwona, stating that she “was not consulted” and was withholding consent to the sale – therefore the sale was void. That letter offered to refund the purchase price, implying that the money was available on demand. Mr. Chivasa communicated to the defendant’s lawyers that his client (the Trust) suspected collusion between the defendant and his wife and would insist on specific performance rather than a refund. He was instructed to prepare a court application for a declaratory order to affirm the sale’s validity (given the emerging dispute), but as tensions rose – including personal attacks directed at Mr. Chivasa by the defendant – the plaintiff opted to abandon that course and proceed via summons for direct relief. Importantly, Mr. Chivasa addressed the allegation of misrepresentation regarding an alternate purchaser/cheaper house. He categorically denied having deceived the defendant. What happened, he explained, was that his secretary, Beatrice, had informed him of a different house on sale in the same neighbourhood, and he passed that information to the defendant through a WhatsApp message, noting that if the defendant was not willing to sell his house for $85,000, the plaintiff might pursue the other property instead. This exchange took place on the morning of 20 February before the agreement was signed, seemingly as a negotiation tactic. According to Mr. Chivasa, by that point the defendant had already agreed in principle to sell – the advert was used to reinforce that $85,000 was a fair price. The defendant, for his part, appeared keen to proceed and did not balk. Thus Mr. Chivasa rejected any suggestion that the sale was induced by fraud on his part. Indeed, no such promise of providing a cheaper house is recorded in the written agreement, which contains an “entire agreement” clause. All of Mr. Chivasa’s letters after the fallout were written “without prejudice” in an attempt to settle the matter amicably, and at no point did the plaintiff accept the cancellation or abandon its claim to the house. Regarding the counterclaim, Mr. Chivasa testified that he was present when the defendant was arrested and that he also gave evidence in the defendant’s criminal trial. In his view, nothing untoward was done by the plaintiff: reporting a suspected fraud to the police was warranted by the defendant’s conduct. The plaintiff had paid an enormous sum and was suddenly left in a lurch with neither the property nor the money – turning to law enforcement under those circumstances was understandable. Mr. Chivasa echoed that any statements made in court by Mr. Matutu about the defendant’s character or business practices were relevant to the case and not meant to malign the defendant beyond the proceedings. He pointed out that the defendant’s eventual acquittal in the criminal court was largely because the matter was deemed civil. Indeed, the magistrate found the transaction “had become a civil case”, and notably the acquittal was achieved without the defendant even having to testify. His lawyer successfully argued no case to answer. An acquittal in a fraud case, Mr. Chivasa opined, does not automatically translate to malice or unreasonableness on the part of the complainant. It simply meant the higher standard of proof was not met, leaving the dispute to be resolved on a balance of probabilities in this Court. Under cross-examination, Mr. Chivasa remained a credible witness. He confirmed that when the defendant’s lawyers initially claimed the US$80,000 was secure in their trust account, he pressed for proof and was eventually told by Mr. Mudisi (the defendant’s attorney) that the defendant had in fact collected the money himself. He also refuted any notion that he had a personal interest in pushing the sale. When asked why he did not recommend his own client (the Trust) to pursue the “cheaper house” instead, he responded that by the time that information surfaced, the plaintiff had made up its mind to buy the defendant’s house. In other words, the Trust’s commitment to this transaction was already firm. Mr. Chivasa explained why the plaintiff withdrew the earlier declaratory application – the situation had become adversarial and it was more prudent to proceed by action with full evidence, rather than by motion. He also addressed the magistrate’s court consent order between defendant and wife. It was couched in general terms about “matrimonial property”, but it did not identify the specific house, and in his professional view the Eastlea house was not part of the couple’s joint estate. In fact, Mr. Chivasa had been involved in the original development and sale of that property to the defendant, and he had never encountered the wife in those transactions. Lastly, Mr. Chivasa stated that the defendant never gave notice that he had finished the plumbing repairs nor formally demanded the $5,000 balance from the plaintiff – the first indication was the contradictory letter of 28 February itself. Thus, from the plaintiff’s perspective, it was the defendant who jumped the gun by cancelling, and at no point was the plaintiff in mora or in breach. At the close of the plaintiff’s case, the Court found both Mr. Matutu and Mr. Chivasa to be credible witnesses. Their testimony was largely uncontroverted on key facts: the agreement was validly concluded, the plaintiff paid the bulk of the purchase price and was ready to pay the remainder, the defendant purported to cancel without any breach by the plaintiff, and the defendant indeed failed to return the money upon cancellation. The defence, in turn, proceeded to lead evidence in support of its pleaded defences of misrepresentation, repudiation, and estoppel, as well as in support of the counterclaim. Defendant’s Case The defendant, Mr. Courage Kudakwashe Mushunje, was the sole witness in his defence. His position was that the Agreement of Sale should be deemed void or voidable due to material misrepresentation. He claimed that he was induced to sell his house by the false representation that if he did so, he would be able to purchase a cheaper house in the same locality and pocket the difference. In other words, the defendant asserted that he entered the contract under a misconception intentionally fostered by the plaintiff’s agent (Mr. Chivasa) – a misconception that fundamentally undermined true consensus. Mr. Mushunje testified that on 19 February 2023, Mr. Matutu approached him expressing interest in buying the house. The defendant stated he told Mr. Matutu that his asking price was US$100,000, to which Mr. Matutu responded with an offer around US$70,000 before leaving to consider the matter. The next morning, 20 February, Mr. Matutu contacted the defendant and directed him to meet at Mr. Chivasa’s offices to conclude the deal. Prior to going to the lawyer, the parties met at the house for a final inspection and to agree on price. It was during this meeting, according to the defendant, that Mr. Chivasa sent him a WhatsApp message containing an advertisement for another house priced at US$65,000 in the same Eastlea area. Appended to that advert was a note from Mr. Chivasa stating, “Look, this is a house on sale for US$65,000 in the same locality, but I want Mr. Matutu to buy your house.” This communication had a significant impact on the defendant’s mind. He testified that Mr. Chivasa actively urged him to go through with the sale, suggesting that if he sold his house for $85,000, he could then buy the other property for $65,000 and have some “change” left over. The defendant stated he trusted Mr. Chivasa’s word – not only was Mr. Chivasa a legal professional who had previously handled transactions for both the defendant and the property’s original developer, but the defendant also knew him socially and had no reason to suspect deceit. Feeling reassured by this prospect of a replacement home and cash surplus, the defendant agreed on the price of US$85,000 and proceeded to sign the agreement. Notably, the defendant disputed the narrative that he had solicited the sale via Daniel Shoko. Contrary to Mr. Matutu’s account, Mr. Mushunje claimed that it was Daniel Shoko who approached him, saying the plaintiff trust was looking for properties to buy. He denied that his car sales business was “in dire need of money” at the time – implying that he was not acting out of desperation but rather was tempted by a business opportunity to sell at a profit. The defendant also maintained that the advertised “other house” was a fiction: after the sale, he tried to follow up on that lead and discovered the phone number provided did not exist in service. He thus came to believe that the advert had been concocted purely to pressure him into selling. The defendant’s version of the aftermath is as follows. On 20 February, after signing, the plaintiff handed over US$80,000 in cash, which the defendant took into his possession. By 22 February 2023 – roughly 48 hours later – the defendant resolved to resile from the contract, ostensibly upon realizing that he had been misled. He drafted and sent the letter of cancellation dated 22 February 2023, citing as reasons: (i) the “threats” he was receiving (which he attributed to people sent by Mr. Matutu, including Daniel Shoko) and (ii) a serious dispute with his wife who was furious that he had sold the house without her consent. In his testimony, Mr. Mushunje elaborated that Moreblessing Taruwona was indeed his wife, that she had contributed to the completion of the house, and that she objected to the sale – hence he felt compelled to back out to preserve his marriage. It is common cause that the house had been acquired by the defendant prior to the marriage, but the defendant asserted it had since become matrimonial property due to the wife’s contributions. After sending the cancellation letter, the defendant attempted to refund the US$80,000. He testified that he asked Mr. Matutu (via WhatsApp) where he should deposit or deliver the money, and was instructed to take it to Mr. Chivasa’s office. The defendant says he indeed went to Mr. Chivasa and tendered the cash back, but Mr. Chivasa refused to accept it, stating he had no such instructions from his client. Finding himself unable to return the money directly to the plaintiff, the defendant took steps to secure it elsewhere. He deposited the bulk of it with his own legal practitioners (Mutendi, Mudisi & Shumba) and later used portions of it to cover legal fees as various disputes unfolded. Notably, by the time of the Pre-Trial Conference in this case, the defendant candidly admitted he no longer had the cash on hand – he had converted some of it to assets – but claimed he could raise it if given time. The defendant explained the seemingly inconsistent 28 February 2023 letter (wherein his lawyers demanded the $5,000 balance and purported to give notice of breach). He stated under oath that after the plaintiff, through counsel, rejected the cancellation as invalid, he (the defendant) felt constrained to “revive” the contract on his terms. The 28 February letter, in his view, was an attempt to enforce what he believed was the plaintiff’s remaining obligation (payment of the balance) while simultaneously documenting that the outstanding repairs had been completed within two days of the sale. He testified that he finished the plumbing work and installing a lithium battery by 22 February, a point not directly communicated to the plaintiff except by implication in the letter. The defendant admitted during cross-examination that he did not explicitly notify the plaintiff on 22 or 23 February that the repairs were done, nor did he formally call for the $5,000 payment under the contract. Instead, he tried to use the 28 February letter both as a post facto notice that the contract was (from his perspective) still alive and that the plaintiff should perform, and as a strategy to bolster his stance in the impending tussle. This manoeuvre, however, only “created confusion” (in the plaintiff’s words) given that the plaintiff had never waived its insistence on the sale and had not accepted the cancellation in the first place. In addition to the alleged misrepresentation, the defendant raised a legal argument that the plaintiff’s conduct amounted to repudiation or estoppel. He pointed to the fact that the plaintiff’s own lawyer, at one stage, labelled the sale “void ab initio” when corresponding with the wife’s lawyers. The defendant contended that by treating the contract as void (in the alternative) and initially suing for a declaratory order or even a refund (before the specific performance claim was re-asserted), the plaintiff had elected to cancel or at least affirm the cancellation, and could not later approbate and reprobate by claiming the contract was valid. In essence, he argued the Trust’s initial resort to a declaratory application, which was later withdrawn, and the act of reporting him to the police for “fraud” (which presupposed the sale was nullified and money stolen) amounted to repudiation by the plaintiff of the contract, thereby estopping the plaintiff from later insisting on the contract’s validity. The plaintiff, in rebuttal, maintained that those steps were all consistent with an effort to hold the defendant to the contract or to recover the purchase price in lieu of specific performance, and not an abandonment of the contract. This estoppel/repudiation defence, therefore, turns on legal interpretation of the plaintiff’s post-contract conduct. The Counterclaim Alongside his defence, the defendant lodged a counterclaim sounding in delict. He claimed $50,000 in general damages (later particularized as $45,000 for business losses and $5,000 for reputational harm, though the pleadings were somewhat nebulous) arising from two torts: defamation and malicious prosecution. The factual basis was that Mr. Matutu, during the Gweru criminal trial, allegedly defamed him by calling him “a crooked businessman” who uses clients’ funds to buy vehicles through a company called B4 Forward), causing people to distrust him. The defendant said this statement, made in open court and reported in the small community of Zvishavane, severely damaged his car sales business, leading to loss of income such that he struggled to pay his family’s expenses. As for malicious prosecution, the defendant averred that Mr. Matutu’s report to the police was made maliciously and without probable cause, leading to his arrest, two weeks of incarceration (initial denial of bail), and the ordeal of a criminal trial, all to his prejudice. He sought compensation for the deprivation of liberty and the legal costs he expended. He testified to about US$15,000 in legal fees paid across the Zvishavane, Gweru, and High Court bail proceedings. It is common cause that the defendant’s business reputation in a small town may have suffered due to the publicity of the arrest and trial. However, under cross-examination he conceded that he had no independent evidence of specific loss. No financial records were produced to quantify the downturn, and no witnesses were called to corroborate the alleged reputational harm. He also could not substantiate the figure of US$15,000 with receipts or invoices from his lawyers. More fundamentally, the plaintiff’s counsel put to him that any statements made by Mr. Matutu in court were absolutely privileged in defamation law, and thus not actionable. The defendant insisted the remarks went beyond acceptable testimony, but this is a legal question the Court will address. On the malicious prosecution claim, it was put to the defendant that, considering the timeline – (i) he signed an agreement and took the plaintiff’s money; (ii) he unilaterally cancelled within two days without legal cause; (iii) he involved his wife to thwart the sale; and (iv) he failed to promptly refund the money – the plaintiff was justified in suspecting criminal fraud and seeking police intervention. The defendant disagreed, maintaining that the criminal case was pursued out of spite rather than genuine cause. He felt the plaintiff should simply have sued for civil remedies and that the criminal route was unwarranted. This difference of perspective is noted. Assessment of Evidence The Court has carefully considered the testimonies and exhibits. In large measure, the core facts are not in dispute. What is in dispute is their legal effect. The agreement of sale is admitted, as are the payments made and the letters exchanged. The defendant’s misrepresentation defence hinges on conversations and a WhatsApp message whose content is largely acknowledged. Mr. Chivasa admitted sending an advert and suggesting the plaintiff wanted the defendant’s house rather than the other. The crucial question is whether that amounted to a fraudulent misrepresentation inducing the sale. On that score, the Court finds that it did not. The evidentiary record shows that the defendant was indeed keen to sell. He initiated contact through Daniel Shoko, and he negotiated the price with Mr. Matutu. The WhatsApp advert about a US$65,000 house was real in the sense an advertisement was forwarded, though it turned out to be unavailable or non-existent later. There is no proof that Mr. Matutu or Mr. Chivasa fabricated the advert. More likely it was an actual listing that could not be pursued afterward. In any event, even if the advert were false, the defendant affirmed the contract in writing (the 20 Feb agreement) without any clause tying it to the availability of another property. Clause 11 of the written agreement stipulated that it contained the entire understanding of the parties. The alleged promise of a cheaper house was not included, suggesting it was not a decisive term but rather a negotiating puff or collateral suggestion. By signing the contract as is, the defendant assumed the risk that any side discussions not captured in the contract would not be enforceable. The Court is not satisfied that the defendant was duped in a legal sense; rather, he may have misjudged his own willingness to sell in the face of personal pressures like his wife’s reaction. His regret does not equate to an actionable misrepresentation by the plaintiff. The cancellation of 22 February 2023 was therefore a breach by the defendant. The agreement was barely two days old. The plaintiff had performed its principal obligation, payment of the deposit, and no contractual breach by the plaintiff had occurred. The defendant’s justifications for cancellation – fear from alleged threats and spousal disapproval – were extraneous to the plaintiff’s conduct. Significantly, the cancellation letter itself admitted no fault on the part of the plaintiff. It follows that the purported cancellation was premature and wrongful, as the plaintiff seeks to have declared. The subsequent letter of 28 February, attempting to cure the situation, did not help the defendant’s cause. If anything, it evidenced mala fides by oscillating positions. The defendant’s own evidence was that he sent the second letter because the first was “rejected” – effectively conceding that the plaintiff never agreed to terminate the contract. The sale agreement, in law, remained valid and binding throughout this episode. As for the plaintiff’s conduct after the cancellation, the Court does not view the plaintiff’s pursuit of legal remedies (declaratory relief, demand for refund, or criminal complaint) as a repudiation of the contract. The plaintiff’s primary stance was always that the contract should be honoured. The initiation of a declaratory order application (later withdrawn) is not an unequivocal abandonment of the contract. To the contrary, it sought a judicial pronouncement of the contract’s validity. Even the act of reporting the matter to the police, while aggressive, was essentially an attempt to prevent the defendant from unlawfully benefiting from what the plaintiff believed, correctly, to be a binding sale. It did not communicate to the defendant that the plaintiff no longer held him to the bargain; if anything, it underscored how serious the plaintiff was about getting either the house or its money back. Thus, the estoppel defence falls away. The plaintiff did not affirm any cancellation by the defendant; it consistently treated the defendant as in breach and sought enforcement or restitution. There was no “election” by the innocent party to cancel – all evidence is that the plaintiff insisted on performance or recompense. Therefore, the contract remained on foot, and the plaintiff is entitled to seek specific performance. Considerable attention was given to an order obtained in the Zvishavane Magistrates’ Court, arising from a dispute between Defendant and his estranged wife. The Defendant argued that until such order is set aside, Plaintiff’s claim for specific performance cannot succeed. Having considered the order and submissions, I am not persuaded. The order, though rooted in the Defendant’s marital dispute, does not declare the property to be matrimonial property, nor does it interdict transfer or performance under the contract at issue. At most, it reflects a collateral dispute. It is trite that a subsisting but irrelevant order cannot bar enforcement of an otherwise valid agreement unless it directly speaks to ownership, transfer, or disposition of the property. See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) at 157, where the Supreme Court warned against extending the ambit of collateral orders beyond their clear terms. Consequently, the Zvishavane order does not preclude the Plaintiff’s claim. Having found the defendant liable for breach, the Court turns to the appropriate remedy. The plaintiff bargained for a specific immovable property, which is unique. Damages, return of the $80,000 plus perhaps interest or escalation would not adequately compensate the plaintiff, especially given that the property’s value might have increased and the Trust’s purpose was to acquire real estate, not to engage in short-term loans. Furthermore, the defendant’s behaviour, pocketing the money, resisting refund, yet holding onto the house, suggests that simple damages would reward the defendant’s wrongdoing. Specific performance is a favoured remedy in our law for valid contracts absent special circumstances disfavouring it. Here, the defendant raised no impossibility of performance. He admitted at trial that he could give vacant possession. He was occupying only part of the house and collecting some rent, and that he completed the minor repairs long ago. There is thus no bar to compelling him to perform. The plaintiff has demonstrated that it was ready, willing and able to fulfil its own outstanding obligations. Indeed, in closing submissions it tendered the $5,000 balance upon inspection of the completed works. The contract had become perfecta with all suspensive conditions (if any) fulfilled, and risk and profit in the property had already passed to the purchaser by operation of the agreement. Equity strongly favours enforcement. The Trust paid a substantial sum and acted in good faith, whereas the defendant attempted to resile for reasons outside the contract. The Court therefore will grant specific performance, ordering the defendant to transfer ownership and give vacant possession of 2018 Eastlea, Zvishavane to the plaintiff within a defined period. Counterclaim, Admissibility and Merits A significant procedural issue arises from the defendant’s counterclaim for defamation and malicious prosecution: Can a defendant properly introduce a delictual counterclaim in a suit that is purely contractual in nature? After careful consideration, the Court is persuaded that the counterclaim is misplaced in these proceedings. Our rules of court and case law impose certain limits on the scope of claims in reconvention. In Africa Consolidated Resources (Pvt) Ltd & Ors v Minister of Mines and Mining Development HH 205-10, the High Court observed that a counter-application (or counterclaim) must at minimum be “an answer to the main claim”, meaning it should counter or meet the plaintiff’s claim in a comparable way. The court held that: “A counter-application must, in the very least, in order to qualify as such in terms of the Rules, be an answer to the main claim … Put differently it must seek to counter in a similar vein, the application brought by the first respondent.” Authoritative texts echo this principle. Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa (5th ed, Juta, 2012) at p 374 states: “It is open to the defendant to raise a counterclaim to the plaintiff’s claim. In this case also, sufficient detail must be given of the claim to enable the court to decide whether it is well-founded. The counterclaim may be unliquidated and need not necessarily arise out of the same set of facts as the claim in convention, though it must be of such a nature as to afford a defence to the claim.” In other words, a counterclaim can be a weapon of attack, but it should also serve as a shield – it should be capable of reducing or negating the plaintiff’s claim if established. This authority was considered in Tahilram v Kayser & Ors [2021] ZAGPJHC 751 where the Court clarified: “…it is sufficient if the issues in the claim in convention and those in the claim in reconvention depend upon substantially the same questions of law and fact, or if overriding considerations of justice, equity or convenience support the court’s discretion …” Older common-law jurisprudence elaborated that notion. The High Court of Swaziland, citing Spilhaus & Co. Ltd v Coreejees 1966 (1) SA 525 (C), explained that the counterclaim and the claim in convention must generally be “of the same genus” such that one can cancel out the other, “pound for pound”. If a counterclaim is of a different genus altogether, it may not qualify as a true defence to the main claim. For example – to borrow a classic illustration from the case law – a counterclaim for slander (defamation) cannot meaningfully be set off against a claim for repayment of a debt. They are apples and oranges; success on the slander claim does not answer whether the debt is owed. A counterclaim must have a sufficient connection to the subject matter of the main action to be conveniently tried together. In the United States of America, Rule 13 of the Federal Rules of Civil Procedure draws a distinction between compulsory and permissive counterclaims. As explained in Wright & Miller, Federal Practice and Procedure, §2380 (3d ed), pp 291–293: “When a counterclaim is permissive, its adjudication does not operate as a defence to plaintiff’s action but rather as an independent claim consolidated for convenience.” The defendant’s counterclaim here fails these thresholds. The plaintiff’s claim is contractual: enforcement of a sale of land. The defendant’s counterclaim sounds in personal delict and is factually distinct – it concerns what happened after the contract fallout, essentially an allegedly malicious response by the plaintiff (reporting to police and statements in court). These facts are not intertwined with the formation, performance, or breach of the sale agreement; they are a collateral aftermath. Winning or losing the defamation/malicious prosecution claim would not determine, or be determined by, the issues needed to resolve the specific performance claim. They require different legal elements and evidence (e.g. malice, absence of probable cause, reputational damage) that have no bearing on whether the contract was breached or should be enforced. The defendant’s counsel, seemingly invoked a more liberal view from Tahilram v Kayser & Ors (supra), (although he did not cite this authority) arguing that exact symmetry of causes of action is not required for a counterclaim. It is true – the Tahilram judgment clarified that a claim in reconvention “need not mirror or closely resemble the main claim” as long as substantially the same questions of law or fact are involved, or considerations of justice and convenience justify hearing them together. However, even under that test, the present counterclaim is untenable. There is no substantial overlap of factual or legal issues between the contract enforcement claim and the delictual claims. The contract claim turns on the agreement’s validity, breach, and remedy – issues of contract law and the facts of the sale. The counterclaim would turn on privilege in judicial proceedings, the reasonableness of making a police report, and proof of damages to reputation/business – issues of tort law far afield from the sale. The only link is that they arose sequentially (the counterclaim emanated from the plaintiff’s reaction to the breach), but that is not a logical connection warranting a combined trial. The defendant’s claim in reconvention here is a separate and distinct delictual claim which is not interwoven with the plaintiff’s claim either in fact or in law. It does not constitute a valid defence against the main claim. Allowing it to proceed in this action would effectively convert a simple contract dispute into a combined contract/tort trial, which our rules do not encourage absent a clear nexus. Comparative common-law authorities buttress this stance. The Malaysian Court of Appeal in Alloy Consolidated Sdn Bhd v Anjari Properties Sdn Bhd [2009] 4 MLJ 833, faced with an analogous scenario, held that a counterclaim must be refused if it lacks a sufficient link to the principal claim. In that case (citing Esso Standard Malaya Bhd v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168 @p.170), the court struck out a defamation counterclaim in a contract debt action, emphatically stating that justice required separate proceedings. The court wrote: “…it is settled law that a counterclaim cannot be maintained unless it is shown that the relief claimed is sufficiently connected with or allied to the subject matter of the principle claim as to make it necessary in the interest of justice that it should be dealt with along with the claim. Thus, a counterclaim for slander cannot be maintained in a claim for money lent.” Crucially, even if allowed, it in no way diminishes the plaintiff’s recovery on the main claim – it would only result in a separate judgment for the defendant if proven. This underscores that an unrelated counterclaim is not a true “defence” to the plaintiff’s claim, but rather a separate lawsuit tacked on. For these reasons, the Court holds that the defendant’s counterclaim for malicious prosecution and defamation is not properly before the court in this action. It does not meet the rule or case law criteria to qualify as a claim in reconvention aimed at “countering” the plaintiff’s claim. The appropriate course would have been for the defendant to pursue such claims by separate action. As Gubbay CJ noted in Independent Petroleum Co. Ltd. v. Mobility (Pvt) Ltd. 1989 (1) ZLR 220 (SC), a counterclaim should not be permitted if it will obscure the real issues or unduly complicate the proceeding. Here, grafting a tort claim onto this contract case would do just that. Even if the counterclaim were entertainable, it would fail on its merits. The defendant has not proven the elements of either delict to the required standard. On the defamation claim: The statements attributed to Mr. Matutu were made in judicial proceedings (the criminal trial) and are cloaked with absolute privilege. No civil liability arises for testimony given in court, even if false or harmful, so long as it was relevant to the case. Mr. Matutu’s remarks about the defendant’s business conduct were part of explaining his state of mind (why he trusted or distrusted the defendant) and thus pertinent to the fraud inquiry. They cannot ground a defamation suit. Moreover, the defendant led no independent evidence that those remarks, assuming they seeped beyond the courtroom, caused the quantifiable decline of his business. His car sales business may well have suffered from the mere fact of his arrest and prosecution, matters of public record, which is not defamatory publication by the plaintiff but a consequence of lawful process. On the malicious prosecution claim: The defendant needed to prove that the plaintiff (i) instigated the criminal proceedings, (ii) without reasonable and probable cause, (iii) with malice (an improper motive), and that (iv) the proceedings terminated in the defendant’s favour. The acquittal satisfies (iv), and the plaintiff did initiate the report (though the actual prosecution was then taken over by the State). However, the evidence does not show a lack of reasonable cause. Given the scenario unfolding in late February 2023 – the defendant had taken a large sum and unilaterally cancelled under dubious pretences – a reasonable person in the plaintiff’s position could suspect a fraud or theft and seek police intervention. Indeed, the Magistrate’s finding was not that the report was unfounded, but that the matter was more appropriate for civil court, a subtler conclusion than a finding of false accusation. As to malice, the plaintiff’s dominant motive appears to have been the recovery of its property or money, not an intent to oppress the defendant. Malice cannot be inferred simply from the fact that the plaintiff chose a criminal avenue. One can be earnestly mistaken about the nature of a dispute without being malicious. Furthermore, the defendant has not demonstrated any damages specifically resulting from the prosecution beyond what the law considers ordinary (e.g. arrest and detention per se, if lawfully done under criminal process, are not heads of damage unless abuse is proven). He alleged legal expenses and loss of income, but as noted, provided no proof of the $15,000 fees or concrete business losses. On a balance of probabilities, the counterclaim would be dismissed for want of proof even if it were validly before me. Conclusion and Disposition In the final analysis, the plaintiff’s claim succeeds and the defendant’s counterclaim fails. The evidence establishes that the defendant’s cancellation of the sale was unlawful and ineffective, and that the plaintiff is entitled to hold the defendant to the agreement. Specific performance is appropriate and just in the circumstances. The counterclaim is not only procedurally improper but devoid of merit in fact and law. The plaintiff prayed for costs on the punitive attorney-client scale. Such costs are warranted only in exceptional cases involving reprehensible conduct. In casu, the defendant’s behaviour was indeed egregious. He received an $80,000 windfall from the plaintiff, then attempted to dodge his obligations without legal cause, deploying ruses (including his wife’s claim and oscillating positions) to retain both the money and the property. He put the plaintiff through unnecessary legal hoops – from High Court applications to criminal proceedings – and even in this trial, much of his defence was contrived or based on false pretences (e.g. the unfounded misrepresentation claim, the unsubstantiated counterclaim seemingly calculated to offset the debt). The Trust has been kept out of its money and property for well over a year, while the defendant enjoyed the use of both. His intransigence and duplicity merit censure. I thus consider it a proper case to award attorney-client costs in favour of the plaintiff. For the reasons above, it is ordered that: The cancellation of the Agreement of Sale of Stand No. 2018 Eastlea, Zvishavane dated 20 February 2023 by the defendant is declared premature and in breach of contract. The defendant shall deliver vacant possession of Stand 2018, Eastlea, Zvishavane, to the plaintiff within seven (7) days of this order. The defendant shall comply with clause 3(ii) of the Agreement of Sale within thirty (30) days. The defendant’s counterclaim is dismissed. Costs are awarded to the plaintiff on the legal practitioner and client scale. Mambara J: ……………………………………………………… Chingoma Attorneys, plaintiff’s legal practitioners H. Tafa & Associates, defendant’s legal practitioners

Judgment

Zimbabwe Musc Rghts Associaton V Simbisa Brands Zimbabwe Private Limited and 1 other [2025] ZWHHC 342 (5 March 2025)

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Zimbabwe Musc Rghts Associaton V Simbisa Brands Zimbabwe Private Limited and 1 other [2025] ZWHHC 342 (5 March 2025)

Headnotes

Judgment

Similar Cases

Discussion