Judgment No. SC 18/18 Civil Appeal No. 137/16 “(3) In assessing any relief that may be given in terms of this section, the court shall have regard to all the circumstances of the case and in particular to— (a)---(b)---(c) the nature of any breach of contract on the part of the purchaser and the circumstances in which it was committed; and (d) the extent to which the purchaser has complied with his obligations during the currency of the instalment sale of land concerned; and shall balance those amounts against the value of any use or occupation of the land concerned which was enjoyed by the purchaser, together with any commission or costs which the seller has been required to pay in connection with the instalment sale of land concerned.” (emphasis added) After balancing the manner in which Dzingai conducted himself during the time he enjoyed occupation while deliberately defrauding the appellants and avoiding paying the full purchase price, I am satisfied that the court a quo’s order that Shorai keep the payments he had made is fair and just. Accordingly, having considered argument from both parties, and the findings of the court a quo we order as follows: 1. The appeal succeeds with costs 2. The judgment of the court a quo be and is hereby set aside and substituted by the following: (a) The transfers effected in favour of Tafirenyika Kambarami and Dzingai Kashumba under deed of transfer number 773/2011 for the former and Deed of Transfer numbers 3030/2006 and 3031/2006 for the latter having been found invalid, the Registrar of Deeds is ordered to cancel them. (b) In terms of General Condition 6 of the Deed of Sale the first applicant is entitled to keep as rouwkoop payments she received from the late Dzingai. 20