Joshua Muza Tangawabaiwa v Edward Tarusenga N.O. (in his capacity as the Executor Testamentary of the Estate Late Sophia Tangawabaiwa DR 3019), Master of the High Court & Registrar of Deeds

### Preamble
Judgment No. SC 87/25
1
Civil Appeal No. SC 564/24
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REPORTABLE    (87)

JOSHUA     MUZA     TANGAWABAIWA

v

EDWARD     TARUSENGA     N.O     ( in his capacity as the Executor Testamentary of the ESTATE LATE SOPHIA TANGAWABAIWA DR 3019)     (2) MASTER     OF     THE     HIGH     COURT     (3)     REGISTRAR     OF     DEEDS

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHITAKUNYE JA & MUSAKWA JA

HARARE: 25 FEBRUARY 2025 & 29 SEPTEMBER 2025

Mr Mavhiringidze, for the appellant.

Mr Mukwashari, for the first respondent.

No Appearance for the second and third respondents

MUSAKWA JA:

[1] This is an appeal against the whole judgment of the High Court of Zimbabwe (the court a quo).  Before the court a quo, the first respondent, acting in his capacity as the executor testamentary of the estate of the late Sophia Tangawabaiwa (the deceased), sought an order compelling the appellant to transfer certain immovable properties into the deceased’s estate in terms of a deed of cession executed by the appellant in favour of the deceased during her lifetime.  The court a quo upheld the validity and enforceability of the cession agreement and granted the relief sought.  Aggrieved by that decision, the appellant appealed to this Court.

BACKGROUND FACTS

[2] The appellant, Joshua Muza Tangawabaiwa, and the deceased got married on 26 January 1961 under the Native Marriages Act of 1950.  The appellant is a polygamous man with eight wives who included the now deceased and is father to 43 children.  The first respondent, Edward Tarusenga, is the executor testamentary of the estate of the deceased, appointed under DR3019/19.  The second respondent is the Master of the High Court, cited in his official capacity as the administrator of deceased estates, and the third respondent is the Registrar of Deeds, also cited in his official capacity.

[3] On 13 October 1999 the appellant executed a deed of cession in favour of the deceased.  The document purported to transfer to her:

“(i) all rights, title and interest in and over the matrimonial home at 11/12 Fraser Road, Parktown, Waterfalls, Harare held under Deed of Transfer No. 7365/88, and

(ii)   fifty percent of all other properties acquired and registered in the appellant’s name, excluding the matrimonial home.”

[4] The preamble to the deed of cession referenced a recent civil lawsuit instituted by the appellant’s eighth wife.  This motivated the appellant to seek to reduce his financial exposure by acknowledging the deceased’s contributions to the acquisition of their matrimonial estate.  The deed of cession noted that, due to past legal and gender-based restrictions on property ownership, the deceased’s stake in the jointly acquired estate remained vulnerable and required protection.  It explicitly recorded the parties’ shared understanding that the couple had, over time, jointly, whether directly or indirectly, acquired several properties, which, because of prevailing laws, had to be registered solely in the appellant’s name.  The deceased died on 14 November 2019.  During her lifetime, the properties referred to in the deed were never transferred to her. Following her death, the executor lodged an inventory with the Master of the High Court which listed, among other properties, the Parktown house and Stand 13640 Zengeza Township.  The appellant objected, asserting that the properties were solely registered in his name and never formed part of the deceased's estate.  The Master, accepting this assertion, removed the properties from the inventory.  In response, the executor instituted proceedings in the High Court under case number HC 4359/21 seeking an order compelling transfer of the two properties into the estate of the deceased.

[5] In his plea, the appellant asserted that the deed of cession was a sham, purportedly drawn up solely for the purpose of misleading the Maintenance Court in a claim filed against him by his eighth wife.  He denied any genuine intention to transfer property to the deceased, claiming that the deed of cession was never meant to be acted upon.  At trial, however, the appellant initially denied ever signing the deed of cession, stating for the first time that he had no knowledge of it and suggesting that it may have been concocted by the deceased’s relatives.  Under cross-examination, he wavered, reverting to his earlier claim that the deed of cession was a sham.  He argued that he could not have intended to cede property to the deceased since he had paid lobola for her, and that as a father of many children, it would be unjust to alienate the family’s estate in favour of one wife.  He also pointed out that all his wives had worked in the family shops and that their contributions should be considered in the division of property.

[6] The appellant further claimed that no one helped him to acquire the properties and that he had acquired them in 1986 when he was already financially capable.  He disputed that the deceased had any right to the properties and insisted that the agreement, if it existed, had no binding legal effect.  He called a witness, Edson Mubaiwa, who confirmed that the appellant had started his businesses when he was a bachelor and before marriage. However, Edson Mubaiwa was unaware of the deed of cession and was unable to contradict its validity.

[7] The appellant’s denial of the deed of cession was contradicted by Crispen Chenjerai Moyo, a witness who testified on behalf of the first respondent and signed the deed as a witness in 1999. Moyo testified that he had been invited by the appellant to witness the signing, and the appellant told him he wanted to give certain property to the deceased.  Although he was not informed of the specific details of the deed of cession’s content, he confirmed that he witnessed the signing by both parties at their Waterfalls home. The witness remained firm and unshaken during cross-examination, denying suggestions that the document was ever described to him as a ruse or sham.  He also denied that he had been misled in any way.

[8] The deceased’s will, given to the executor prior to her death, listed as part of the estate the Parktown property (which was the matrimonial home) and the Zengeza property.  During pre-trial and subsequent trial proceedings, it emerged that some of the properties had been subdivided and sold to third parties.  The executor then amended the claim to exclude any properties affected by the subdivision and sales, limiting the claim to Lot 1 of Lots 11 and 12 Parktown Extension (being the matrimonial home and still held under Deed of Transfer No. 7365/88) and 50% of Stand 13640 Zengeza Township (Deed No. 53/97).  These properties were neither consolidated nor disposed of and remained registered in the appellant’s name.

[9]   During trial, it was put to the executor that the deed of cession had prescribed and that the deceased had never taken steps to enforce it during her lifetime.  The executor responded that the issue of prescription was a legal one for the court to determine and the issue was not pursued.  No evidence was led on whether the deceased had demanded performance or otherwise triggered the running of prescription.  In closing arguments, the executor contended that prescription had not been properly raised as a special plea in terms of r 42 of the High Court Rules, and that no evidence had been presented to prove it.  He relied on the principles set out in Jennifer Nan Brooker v Richard Mudhanda and Others SC 5/18, and argued that the onus lay with the appellant to prove the facts underlying prescription.

[10] The court a quo ultimately accepted the evidence of the executor and his witness as credible, and rejected the appellant’s version as inconsistent and untrustworthy.  The trial judge observed that the appellant had changed his version multiple times, first asserting the deed of cession was a sham, then denying its existence altogether, and finally reverting to the sham argument when challenged with documentary evidence.  Despite the appellant’s age of 96 years, the court a quo found him to be mentally alert and capable of understanding the proceedings.  The court a quo found no evidence of duress, fraud, or legal incapacity on his part, and held that the deed of cession had been entered into voluntarily and in good faith.

[11] The court a quo also ruled that the deed of cession conferred personal rights enforceable against the appellant, and did not violate s 14 of the Deeds Registries Act [Chapter 20:05] which governs how real rights are conveyed but does not nullify agreements that create binding personal obligations.  The court a quo found that the deed of cession satisfied all elements of a valid contract: consensus, intention to create legal obligations (animus contrahendi), and lawful object.

[12]  Regarding prescription, the court a quo held that the issue was not properly pleaded or proved.  Consequently, the court a quo rejected the argument that the claim had prescribed.  The judgment declared the deed of cession valid and binding, and ordered the appellant to transfer the two identified properties into the deceased’s estate. In the event of non-compliance, the Sheriff was authorised to effect the transfer. Each party was ordered to bear its own costs.

[13]   Aggrieved by the judgment of the court a quo the appellant noted an appeal on the following grounds:

GROUNDS OF APPEAL

“1.   The court a quo erred at law in not finding that the matter had prescribed in circumstances where the cause of action arose from the date of execution of agreement which is October 1999.

The court a quo erred at law in upholding a cession agreement in circumstances where there was no animus contrahendi on the parties to the contract.

The court a quo erred at law in granting an order for transfer of Lot 1 of Lot 11 and 12 Parktown Extension of Upper Waterfalls which was not in the deed of cession which amounted to variation of a contract posthumously.

The Court a quo erred at law in finding that the caveat subscriptor rule was operational against the appellant in circumstances where the cession agreement could not be enforced as is as it was fraught with misunderstanding of the correct position of the law and some of the properties not existing at the time of contracting.

The Court a quo erred and grossly misdirected itself on facts in not giving the benefit of doubt to appellant who was 96 years at the time of testifying which age is prone to forgetfulness hence he should not have been penalized for inconsistency regarding whether he signed the contract.

The Court a quo erred at law in not finding that the cession agreement was illegal as it sought to transfer land with title deeds in a manner not prescribed by the law.”

THE APPELLANT’S SUBMISSIONS ON APPEAL

[14]  Mr Mavhiringidze, counsel for the appellant, submitted that the court a quo erred in holding that the issue of prescription was not properly pleaded.  He averred that prescription was pleaded in the appellant’s original plea and during cross-examination.  The court inquired from counsel on whether the appellant raised the issue of prescription as a special plea.  In response, counsel averred that when prescription is raised, evidence must be led.  He submitted that the purpose of pleading is to state the facts and not the law.  The court further inquired from counsel whether the mentioning of a year in a plea meant pleading prescription.  In response, counsel stated that he had also pleaded under cross-examination.

Counsel further submitted that the parties to the deed of cession did not intend to be bound by it.  He averred that the court a quo rewrote the agreement for the parties as it ordered the transfer of Lot 1 of Lot 11 & 12 which is non-existent.  He stated that assuming that the deed of cession was a donation, the parties never enforced it since 1999, hence, there was a tacit revocation of the donation.

THE FIRST RESPONDENT’S SUBMISSIONS ON APPEAL

[15]  Mr Mukwashari, counsel for the first respondent, submitted that the ground relating to prescription has no merit.  He submitted that the matter was decided on the amended pleadings (that is the amended summons and plea).  He averred that the appellant was obliged to plead the special plea of prescription.  He contended that prescription starts to run when a demand is made.  He submitted that the deed of cession speaks for itself hence the allegation that there was no animus contrahendi is misplaced.  He submitted that there was no evidence to prove that the appellant was incapacitated when he entered into the cession agreement. Counsel prayed that the appeal be dismissed with costs because the grounds of appeal lacked merit.

ISSUE FOR DETERMINATION

[16]   In the court’s view, the following are the issues for determination:

Whether or not the court a quo erred in upholding the validity and enforceability of the deed of cession.

Whether or not the court a quo erred in granting an order for the transfer of Lot 1 of Lot 11 and 12 Parktown Extension, which was not expressly described in the cession agreement.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in upholding the validity and enforceability of the deed of cession

[17] This issue consolidates grounds 2, 4, 5, and 6 of the appeal because they all revolve around the core question of whether the deed of cession was a valid and enforceable agreement capable of creating legally binding obligations.  Although the grounds raise distinct facets such as the alleged absence of animus contrahendi, misapplication of the caveat subscriptor rule, the appellant’s advanced age and inconsistency as a basis for doubt, and the purported illegality of the agreement under s 14 of the Deeds Registries Act, they are essentially directed at undermining the legal force of the cession.  Each of the grounds of appeal challenges either the capacity or intention of the parties to contract, or the legal sufficiency and enforceability of the instrument itself.

[18] Accordingly, consolidating these arguments under one issue allows for a holistic legal analysis of whether the deed constituted a binding contractual obligation, both in form and in substance.  In determining this, the analysis will consider: (1) whether the Parktown/Waterfalls property was properly identifiable under the deed of cession; and (2) whether, despite subdivision, there remained a property that could legally be ceded as a portion of the ceded property at the time enforcement was sought.

[19] The appellant contends that the deed of cession was not a genuine contract.  He claims there was no animus contrahendi, and that the deed of cession was concocted as a sham to mislead the Maintenance Court.  He further argues that the court a quo misapplied the caveat subscriptor rule and failed to consider that, at the time the deed of cession was executed, some properties were either non-existent or not clearly described particularly the Parktown/Waterfalls property, which had allegedly been subdivided.  He also claimed the deed of cession was illegal because it attempted to transfer titled land without proper registration, allegedly in breach of the Deeds Registries Act [Chapter 20:05]

[20] The respondent contends that spouses can enter into binding agreements, including cession agreements, relating to matrimonial property. The Waterfalls property was adequately described in the deed of cession and remained identifiable.  Even though some properties had been subdivided, Lot 1 of Lots 11 and 12 Parktown Extension still existed and was identifiable under Deed of Transfer No. 7365/88, which was referenced in the agreement. The respondent also argued that the agreement created personal rights, not real rights, and therefore did not violate s 14 of the Deeds Registries Act.

[21] The appellant’s arguments are inconsistent and unsubstantiated by evidence.  He shifted positions, from claiming that the deed of cession was a sham, to denying signing it altogether, and finally conceding under cross-examination that he had signed it but without intention to be bound.  The court a quo found, on the strength of credible testimony from a neutral witness who had observed the signing of the deed of cession in 1999, that the appellant voluntarily executed the deed of cession in the presence of the deceased and a third party.  The witness testified that the appellant specifically expressed a desire to give the deceased certain property. This evidence, which remained firm under cross-examination, demonstrated consensus between the parties and rebutted the appellant’s allegation of fabrication.

[22] The court a quo’s application of the caveat subscriptor rule was appropriate.  A person who signs a document is bound by its contents unless fraud, misrepresentation, or mistake going to the root of the contract is proven.  The appellant signed a clearly worded document that ceded to his wife their matrimonial home and 50% of other properties registered in his name, and he failed to prove that the document was a sham.

[23] The diagram clearly relates to “Lots 11 and 12 of Parktown Extension,” which matches exactly with the property described in the deed of cession.  Both the diagram and the deed of cession cite the same title deed number, 7365/88, which proves that they refer to the same piece of land.  The diagram shows that the original land was legally divided into smaller portions (lots), and Lot 1 is clearly marked. Lot 1 is located along Fraser Road, the same address stated in the deed of cession, confirming that this is where the matrimonial home is situated.  Unlike the other lots, Lot 1 does not have any note stating it was sold, transferred, or cancelled.  This shows that Lot 1 was not disposed of and still exists as part of the original property.  Lot 1 is clearly identified on the diagram.  It has its own number, clear boundaries, and exact measurements, just like all properly registered land in Zimbabwe.

[24] The diagram shows its borders using surveyed beacons, and the size is given in square metres, which likely matches what is recorded at the Deeds Registry.  There is no confusion about its location or description.  In addition, the layout of the diagram and the street names, especially "Fraser Road," support the fact that this is the same property referred to in the deed of cession.  This means the land is clearly and accurately described, which is a requirement when dealing with property contracts. The fact that the land was later subdivided does not cancel or weaken the deed of cession.  This is because the deed of cession referred to the property by its address and title deed number, not by the specific lots that were created afterwards.

[25] A contract that references a property in general terms can be enforced against the remaining extent if the intention of the parties is clear and performance remains possible.  Lot 1 of Lots 11 and 12 Parktown Extension is the only unsubdivided and unalienated portion that corresponds directly with the property described in the deed of cession.  It is legally traceable to the address “11/12 Fraser Road” and remains covered under the original deed of transfer (7365/88).  The High Court’s reliance on this diagram to interpret the contract was justified, and the order granting transfer of Lot 1 was not a posthumous variation, but rather a correct identification of the remaining extent of the subject matter of the cession.  The Waterfalls property was properly and precisely identifiable, and the diagram confirms that there was still something left to cede, making the cession enforceable in both fact and law.

[26] Therefore, what follows is whether, despite subdivision, there remained a property whose rights could be legally ceded at the time enforcement was sought.  The appellant contends that the High Court erred in granting an order for transfer of “Lot 1 of Lot 11 and 12 Parktown Extension of Upper Waterfalls” because this particular property was not expressly mentioned in the 1999 deed of cession.  The appellant further argues that the property had been subdivided and/or consolidated, rendering it no longer available or identifiable under the cession agreement.  As articulated in Madzima v Mate HH 86-17 at p 4:

“The concept of cession has been defined in a number of cases.  The case of Johnson v Incorporated General Insurance Ltd 1983 (1) SA 318 (A) is the locus classicus of the cases on cession agreements.  In this case, the court defined a cession as,

‘An act of transfer to enable the transfer of the right to claim to take place. Accomplished by means of an agreement entered into between the cedent and the cessionary and arising out of a justa causa from which the intention of the cedent to transfer the right to claim appears or can be inferred and from which the intention of the cessionary to become the holder of the right appears or can be inferred.’

The case was followed in the case of FNB v Lynn 1996 (2) SA 339 (A).  A simpler definition of cession is given in Contract, General Principles, 4th Ed, Juta by Van der Merwe at p 386 where the authors define a cession as follows,

‘A juristic act, which transfers the right from the estate of the creditor, (cedent) to that of another (cessionary), who thereby becomes a creditor in his stead.” See also Botha v Fick 1995 (2) SA 339 (A). The following requirements must be present for a valid cession.

(a) an agreement between the cedent and the cessionary to give and accept transfer.

(b) a right inhering to the cedent.

(c) all formalities of the law must be complied with.

Put simply, a cession is a method by which rights are transferred.  It involves a transfer of personal rights by agreement between a cedent and a cessionary.  Once a cession has taken place, the right vests in the cessionary.  There are no formalities for the transfer of rights in a cession.  The subject matter of the cession should be capable of being ceded by the cedent.  The right sought to be ceded must fall within the estate of the cedent.  A cedent may only cede existing rights.  He may only cede rights that he is entitled to dispose of.  The person disposing of the right must have the capacity to do so.  The agreement concluded between the cedent and cessionary constitutes the justa causa for the cession.  Once a cession has taken place, the cessionary steps into the shoes of the cedent and the thing ceded becomes part of the cessionary’s estate.  A cession is not a mode of transferring real rights.’”

[27] The court a quo held that the deed of cession ceded “all right, title and interest in and over their matrimonial property situate at 11/12 Fraser Road, Parktown under Title Deed No. 7365/88”.  Since that deed remained unchanged and unconsolidated, the court a quo found it was still subject to enforcement.  The legal effect of subdivision is that once a property has been legally subdivided or consolidated and transferred to third parties, it cannot be the subject of a valid cession.  However, where the property remains intact under its original title deed, its identification is sufficient to sustain a claim, even if surrounding lots were affected.  In this regard, when a contract has been reduced to writing, the document is, in general, regarded as the exclusive memorial of the transaction.  It cannot be contradicted, altered, added to or varied by parole evidence.  Thus, the court a quo could only enforce what was explicitly stated in the deed of cession.  Thus Lot 1 was specifically identified in the cession via its title deed reference.  The court a quo correctly limited enforcement of the deed of cession to those properties that remained under their original deed (Lot 1 of 11 and 12 Parktown, DT 7365/88), and were not affected by subsequent consolidation or subdivision, thereby avoiding interference with third-party interests.  The court a quo did not vary the contract. It merely gave effect to what was already contemplated and clearly described in the agreement hence grounds 2, 4, 5 and 6 are dismissed for their lack of merit.

Whether or not the court a quo erred in granting an order for the transfer of Lot 1 of Lot 11 and 12 Parktown Extension, which was not expressly described in the cession agreement.

[28]   The appellant contends that the court a quo erred in granting an order for the transfer of Lot 1 of Lot 11 and 12 Parktown Extension, a property not expressly referenced in the deed of cession executed on 13 October 1999.  He submits that the deed of cession referred generally to the "matrimonial property situate at 11/12 Fraser Road, Parktown, Waterfalls, Harare currently registered in the Cedent’s name under Title Deed Number 7365/88" and did not mention “Lot 1” of the Parktown property.  It is the appellant’s position that, since the wording of the deed of cession did not explicitly identify "Lot 1," the court a quo, in granting the order, effectively varied the deed of cession posthumously, in contravention of the express non-variation clause within the contract itself, which required any amendment to be in writing and signed by both parties.

[29]   The respondent, on the other hand, maintains that the High Court did not err in granting the order.  He submits that the deed of cession clearly identified the property by address and deed number, and that the subsequent subdivision of the larger property into various lots, including Lot 1, does not detract from the enforceability of the cession in relation to the surviving portion that houses the matrimonial home.  The respondent argues that the identification of Lot 1 as corresponding to the matrimonial home is consistent with the parties’ intention at the time of contracting, and that the court merely enforced the deed of cession in light of updated cadastral information.

[30]   The relevant portion of the deed of cession reads:

“… NOW THEREFORE, in order to address the aforesaid shortcomings of the law, the Cedent, JOSHUA TANGAWABAIWA MUZA, hereby cedes, transfers and makes over to the cessionary, SOPHIA TANGAWABAIWA:

1. All right, title and interest in and over their matrimonial property situate at 11/12 Fraser Road, Parktown, Waterfalls, Harare currently registered in the Cedent's name under Title Deed Number 7365/88;

2. Fifty percent (50%) of all right, title and interest in and over the properties acquired and registered in the Cedent’s name (excluding para 1 above)...”

This language reflects a clear intention to cede the property constituting the matrimonial home, identified by both its physical address and registration particulars.  The reference to Deed of Transfer No. 7365/88 is specific and legally significant, as it provides a unique identifier that is not affected by subsequent administrative or survey processes.  The evidence before the court a quo established that the land previously registered under Deed of Transfer No. 7365/88 had, over time, undergone consolidation and subdivision.  Notably, the Parktown property had been consolidated with Lot 9A and other parcels to form Lot 1094 and subsequently subdivided into various stands.  However, it remained common cause during the trial that Lot 1 of Lots 11 and 12 Parktown Extension, which houses the matrimonial home, was not disposed of to third parties and remained under the appellant’s name, still linked to the original Deed of Transfer No. 7365/88.

[31]   Under cross-examination, the appellant admitted that the matrimonial home was situated on Lot 1 of Lots 11 and 12 Parktown Extension, and that it remained registered under the same deed referenced in the agreement.  He did not dispute that this was the property the parties had lived in as husband and wife for decades and that Sophia had continued to reside in until her death.  The fact that the land had been surveyed and given a new lot number did not extinguish the original title or alter the contractual intention to transfer that specific portion.  The court a quo accepted this evidence, and rightly so.

[32]   The court a quo’s interpretive task was not to rewrite or vary the agreement but to give effect to it.  In the case of Book v Davidson 1988 (1) ZLR 365 (S) the sanctity of contracts was discussed as follows at 378G-379C:

‘There is, however, another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade.  It is the sanctity of contracts.’ (Roffey v Catterall, Edwards & Goudre (Pty) Ltd 1977 (4) SA 494 (N) at 504-505E) …

If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract.’ (Printing and Numeric Registering Co v Sampson (1875) LR 19 EQ 462 at 465).’

“The inviolability of contracts was described by LINDLEY MR in E Underwood and Son Ltd v Braker (1899) 1 CH 300 (CA) at p 305, as essential to trade and commerce. He continued thus, referring to the covenantor as the defendant:

[T]o allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country. Of course I am not speaking of contracts induced by fraud, duress or undue influence, or impeachable on any other ground of invalidity. Omitting all such cases, the public policy which allows a person who obtains employment, on certain terms understood and agreed to by him, to repudiate his contract conflicts with, and must to avail the defendant prevail for some sufficient reason over, the manifest public policy which as a rule holds him to his bargain.”  See E Underwood and Son Ltd v Braker(1899) 1 CH 300 (CA) at p 305 and Rolffey v Catterall, Edawards & Goudre (Pty) Ltd supra at 505 A).”

The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties.  It entails that the court should respect the contract made by the parties and give effect to it.  In the present case, the court a quo granted the order sought by the first respondent, thereby ensuring the enforcement of the cession agreement.  A reading of the deed of cession is clear that, what was given to the deceased by the appellant was the matrimonial property situated at 11/12 Fraser Road, Parktown, Waterfalls held under Deed of Transfer No 7365/88.

[33]   The use of extrinsic evidence to identify the current lot number corresponding to the property expressly referred to by deed number in the contract is both permissible and necessary to enforce the deed of cession as intended.  There was no variation of the deed of cession.  The court a quo did not insert new terms but simply translated the existing contractual intention into a practical and enforceable order, having regard to changes in cadastral demarcation over time.  Additionally, the appellant’s reliance on the non-variation clause in the contract is misplaced.  No variation occurred.  The clause prohibits amendment of the terms, and the court a quo did not alter the deed of cession’s content.  It merely recognised that the property referred to as “11/12 Fraser Road” under Deed No. 7365/88 is now known, for administrative purposes, as Lot 1 of Lot 11 and 12.  That is a factual clarification, not a legal modification.

[34]   Furthermore, the maxim “id certum est quod certum reddi potest” (if something is capable of being made certain, it should be treated as certain) applies.  What is certain is that the deed of cession identified the matrimonial home by address and deed.  That the specific portion of the title deed is now designated “Lot 1” does not create any uncertainty as to the subject matter.  As long as the property remains identifiable and legally traceable, a court is entitled to grant an order for its transfer.  Finally, the respondent’s claim was restricted to the portion of the Parktown property that had not been sold to third parties, consistent with the amendment to the summons.  The trial court made a factual finding that this remaining property was the matrimonial home referred to in the cession, a finding supported by the appellant’s own concessions during trial.  In conclusion, the High Court did not err in granting an order for the transfer of Lot 1 of Lots 11 and 12 Parktown Extension.  The property was sufficiently identified in the cession agreement, the court did not vary the contract, and its order simply gave effect to the clearly expressed intention of the parties.  The appeal on this ground is therefore without merit and must be dismissed.

DISPOSITION

[35]   Having considered the grounds of appeal and the submissions by both parties, the Court finds that:

The deed of cession entered into on 13 October 1999 between the appellant and the late Sophia Tangawabaiwa was valid and enforceable. The appellant failed to rebut the presumption of animus contrahendi, and the court a quo correctly applied the caveat subscriptor rule.  The appellant’s claims of mental incapacity and contractual illegality were unsupported by evidence or law.

The order directing transfer of Lot 1 of Lots 11 and 12 Parktown Extension did not amount to a variation of the deed of cession.  The description in the deed of cession was sufficiently precise, and the court a quo acted within its powers in enforcing the agreement based on current cadastral identifiers.  The order did not alter the substance of the parties’ agreement but merely implemented it in light of subsequent subdivisions.

[36]   In light of the foregoing, the appeal lacks merit and ought to be dismissed.  As is the norm, costs follow the cause.  Accordingly, it is ordered that:

“The appeal be and is hereby dismissed with costs.”

UCHENA JA                      :      	 I agree

CHITAKUNYE JA            :       	I agree

Mavhiringidze & Mashanyare, appellant’s legal practitioners.

T.H Chitapi & Associates, first respondent’s legal practitioners.