Benson Mufandaedza v Karamba Kapondoro (In his capacity as The Executor Estate Late Admos Nyamande Ndlovu DRB6/11)

In 1997, the plaintiff entered into an agreement of sale with the now-deceased Admos Nyamande Ndlovu to purchase Lot 3 and Lot 4 of Lot 8A of Woodville Estate for USD 70,000.00, payable in instalments. The agreement was concluded before a subdivision permit was granted. The contract, schedule of payments, and a proposed subdivision diagram were attached to the agreement. The subdivision permit was subsequently granted on 23 January 1998, but the approved diagram 23/97 differed from the proposed diagram - Lot 3 in the original became Lot 6, Lot 4 became Lot 5, and the borehole was excluded from the land sold. The plaintiff took occupation of Lots 4 and 5 as per the amended diagram and remained in occupation for approximately 24 years. He paid the full purchase price by November 1998 and made substantial improvements including a 7-roomed house, boreholes, greenhouses, and a poultry operation. The seller died on 29 November 2010 without transferring title. The plaintiff instituted proceedings in 2024 seeking transfer of Lots 3 and 4 according to the original proposed diagram.

• Whether the 1997 agreement of sale entered into before a subdivision permit was granted is valid and enforceable
• Whether an oral addendum to the 1997 agreement after the subdivision permit was granted creates a valid enforceable contract
• Whether the plaintiff's claim is prescribed
• Whether the plaintiff has made out a prima facie case to survive absolution from the instance
• Whether the court has equitable jurisdiction to grant relief to enforce a contract prohibited by statute

The application for absolution from the instance was granted with costs in favor of the defendant.

An agreement for the sale of a portion of property concluded before a subdivision permit is granted under Section 40 of the Regional Town and Country Planning Act is prohibited by Section 39(1)(b)(i) and is void ab initio. The peremptory language of Section 39 admits no exception. A void contract is a legal nullity - incurably bad without need for a court order to set it aside. Any proceeding founded upon a void contract must also fail. An oral addendum to a void contract cannot create validity which the original contract never had. Courts have no equitable jurisdiction to grant relief to enforce a contract prohibited by statute. What is done in contravention of an Act of Parliament cannot be made the subject of an action. For absolution from the instance to be refused, there must be evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff.

The court made sympathetic observations about the plaintiff's position, acknowledging that his efforts were well-intentioned, that he paid the purchase price in full and religiously, made substantial improvements to the land, and derived significant income from it. The court noted the error appeared to have been mutual between the plaintiff and the deceased. The court observed that the plaintiff's plight could have been averted had he revoked the 1997 contract as soon as he learned of its shortcomings and negotiated a fresh contract protecting his interests during the deceased's lifetime. The court questioned what advice the plaintiff's erstwhile counsel gave him and what case they agreed to take to trial, noting their prayer sought transfer of lots matching the approved diagram which were not what the plaintiff actually purchased in terms of location and size, and that he was in occupation of land not matching the description in the approved diagram. The court noted there was no alternative relief sought such as refund of the purchase price or the current value of the land taking improvements into account.

This case reinforces the strict application of Section 39(1)(b)(i) of the Regional Town and Country Planning Act in Zimbabwean law, confirming that agreements for the sale of subdivided land concluded before a subdivision permit is granted are void ab initio and unenforceable, regardless of subsequent events, payment, or improvements made by the purchaser. The case demonstrates that courts will not exercise equitable jurisdiction to enforce contracts that violate mandatory statutory provisions, even in circumstances of apparent unfairness to a party who acted in good faith. It serves as a cautionary tale about the importance of ensuring statutory compliance before entering into property transactions involving subdivisions, and the limits of contractual amendments or addendums in curing fundamental statutory defects.