The applicant (Jonasi) and first respondent (Sailasi) entered into a lease agreement on 1 June 2013 for a duration of two years ending 1 June 2015. During the lease period, the landlord Sailasi experienced serious financial difficulties and sought financial assistance from his tenant Jonasi. In gratitude for the assistance rendered, Sailasi wrote letters to Jonasi on 14 February 2014, offering him first preference/right of first refusal to purchase the property he was occupying. Jonasi responded on 26 February 2014 with a formal offer to purchase the property for US$40,000 with various payment options. Jonasi sent a follow-up letter on 15 April 2014 seeking to formalize the agreement. Sailasi did not respond to these letters and subsequently sold the property to the Methodist Church in Zimbabwe (second respondent) for US$34,000 on 13 June 2014 without offering it to Jonasi first. The applicant brought this application seeking to set aside the sale and enforce his alleged right of first refusal.
The application was dismissed and the matter was referred to trial, with the papers filed of record thus far standing as pleadings.
Where there are prominent disputes of fact in a court application that cannot be resolved on the papers even with a robust approach, the proper course is to dismiss the application and refer the matter to trial with the papers filed standing as pleadings. The court will not attempt to resolve material disputes of fact, particularly those involving credibility issues, in motion proceedings.
The court observed that the correspondence between the parties revealed they both believed and understood that at least a verbal binding right of pre-emption had been created between them, with the landlord repeatedly committing to offering the tenant a preferential right to buy the property. The court also noted that the landlord 'clearly has decided to be ungrateful for the assistance rendered to him when he desperately needed financial help' - suggesting some sympathy for the applicant's position, though this could not overcome the factual disputes requiring trial.
This case illustrates the approach Zimbabwean courts take when faced with material disputes of fact in motion proceedings, particularly in the context of alleged rights of first refusal created outside formal lease agreements. It demonstrates the court's willingness to refer matters to trial rather than resolve disputed facts on affidavit, especially where credibility issues arise and the disputes are prominent. The case also touches on important principles regarding the creation and enforceability of rights of pre-emption and the requirements for establishing bona fide purchaser status.