The applicant (Jonasi) entered into a lease agreement with the 1st respondent (Sailasi) on 1 June 2013 for property at No. 13 Nesbit, Redcliff, Kwekwe. The applicant claimed that on 14 February 2014, the 1st respondent gave him a "right of first refusal" to purchase the property. The applicant lent the 1st respondent $8,010 and later offered to purchase the house for $40,000 on a "rent to buy" basis with various payment plans. The 1st respondent did not respond to this offer. Subsequently, the 2nd respondent (Methodist Church in Zimbabwe) purchased the property for $34,000, paid in full, and took transfer of title. The applicant filed various applications, including HC 1602/14, which was dismissed by Kamocha J for material disputes of fact. When the consolidated matters were set down for trial on 13 March 2018, the applicant defaulted. Moyo J granted judgment against him ordering his eviction, payment of arrear rentals of $8,750, holding over damages of $350 per month, and costs. The applicant sought rescission of this default judgment, claiming his legal practitioners failed to attend court and that he had prospects of success based on the alleged right of first refusal.
The application for rescission of judgment was dismissed with costs of suit.
1. A right of first refusal (pre-emption) can only be created by clear contract or agreement between the grantor and grantee, not by custom, practice, or the status of being a sitting tenant. 2. Where a right of pre-emption is alleged, the onus is on the plaintiff to prove the existence of an agreement whereby the defendant undertook to offer the property at a price equal to that offered by another. 3. Basic rules of offer and acceptance apply to contracts of pre-emption; there must be a clear offer and unequivocal acceptance to create a binding right. 4. An offer of "first preference" subject to a "reasonable and acceptable offer" does not create an automatic right of first refusal; the tenant must make an offer acceptable to the owner. 5. For rescission of default judgment, an applicant must establish both good and sufficient cause for the default (negating willful default) and bona fide prospects of success on the merits. 6. Applications for rescission must clearly state the legal basis (Order 9 Rule 63, Order 49 Rule 449(1)(a), or common law) upon which they are brought.
The court observed that applications where the legal basis is left for the court to surmise should be discouraged; applicants must elect and clearly state the rule or law upon which they rely. The court noted that the matter had dragged on for six years from a simple issue, and expressed concern that the applicant was motivated by continued occupation without payment rather than genuine legal merit. The court commented that complex agreements such as rights of first refusal should be properly documented in writing with clear terms, and that entering into such agreements in a "shoddy manner" which the applicant cannot properly explain is undesirable. The court emphasized the importance of finality in litigation and protecting innocent purchasers from being kept in perpetual limbo by unmeritorious applications.
This case clarifies the legal requirements for establishing a valid right of first refusal (pre-emption) in Zimbabwean property law. It emphasizes that such rights must be created by clear contractual agreement between the property owner and the grantee, and cannot arise from custom, practice, or status as a sitting tenant. The case also reinforces the stringent requirements for rescission of default judgments, requiring both a satisfactory explanation for default (good and sufficient cause) and bona fide prospects of success on the merits. It demonstrates the court's willingness to dismiss applications for rescission where the applicant appears to be using procedural mechanisms merely to delay execution and continue enjoying possession of property without paying rent. The judgment protects bona fide purchasers who have paid full consideration and obtained transfer from being kept in limbo by unmeritorious litigation.