Burdock Investments (Private) Limited v Grace Chiwoniso Rupere and Others

In 2001, the plaintiff (a land developer) sold Stand 2926 Bluffhill Township to the first defendant for ZWD$1,395,000.00 (later escalated to ZWD$3,500,000.00). The first defendant made various payments totaling the purchase price, including a critical payment of ZWD$1,200,000.00 to the plaintiff's lawyers, Ziweni & Company, on 1 March 2004. Transfer was registered in the first defendant's name on 28 February 2005. The plaintiff subsequently claimed non-payment of the balance covered by a bank guarantee (which had lapsed), cancelled the agreement, obtained a default judgment reversing the transfer, and sold the property to third and fourth defendants on 1 September 2005. The first defendant successfully applied for rescission of the default judgment in 2007, and the matter was referred to trial. The case proceeded as a stated case based on agreed facts.

• Whether the parties contravened the Regional, Town and Country Planning Act by concluding the sale in the absence of a certificate of compliance
• Whether the first defendant discharged all her obligations under the agreement of sale
• Whether the agreement was properly cancelled by the plaintiff
• Whether the disposal of the property to third and fourth defendants was lawful
• What costs order should be made

1. The plaintiff's claim is dismissed. 2. The first defendant's claim in reconvention is granted. 3. Title Deed No. 10187/2005 registered in the names of the third and fourth defendants in respect of Stand 2926 Bluffhill Township is cancelled and the Registrar of Deeds is directed to reinstate Title Deed No. 1875/2005 in the name of the first defendant. 4. The plaintiff shall pay the first defendant's costs of suit on a legal practitioner and client scale.

1. Section 39 of the Regional, Town and Country Planning Act requires that a subdivision permit granted under section 40 must exist at the time an agreement for change of ownership is concluded. The provision does not require a certificate of compliance to exist at that stage, as compliance with permit conditions relates to the subsequent juristic act of transfer, not the agreement itself. 2. When a purchaser makes payment to the seller's authorized agent (legal practitioners), the purchaser's contractual obligation is discharged. Any failure by the agent to account to the principal is a matter between principal and agent and does not render the purchaser in breach. 3. Once a contract of sale is properly performed by both parties and transfer is registered, the contract is discharged and its provisions (including domicilium citandi et executandi) cease to bind the parties. 4. A cancellation of an agreement based on an alleged breach that did not occur is null and void. Any subsequent sale and transfer founded on such invalid cancellation is equally null and void under the principle that nothing can flow from a nullity (nemo dat quod non habet).

The court observed that the circumstances of the sale to the third and fourth defendants raised serious questions, particularly that it was hurriedly concluded less than two weeks after the default judgment was entered on 17 August 2005, suggesting possible impropriety. The court also noted that the plaintiff's conduct could only be attributed to greed, as it sought to benefit twice from the same transaction - once from the actual payment received through its lawyers and again from the bank guarantee covering the same amount. The court expressed its displeasure at the nearly two-decade litigation pursued by the plaintiff without factual or legal basis, characterizing it as an abuse of court process. While the court found the plaintiff's conduct warranted punitive costs on a legal practitioner and client scale against the plaintiff, it declined to award costs de bonis propriis against the plaintiff's lawyers, finding no negligence of a serious degree or serious misconduct to justify such an exceptional order.

This case clarifies important principles in Zimbabwean law regarding: (1) The requirements of section 39 of the Regional, Town and Country Planning Act - that a subdivision permit must exist at the time an agreement of sale is concluded, but a certificate of compliance need not exist at that stage as it relates to the separate juristic act of transfer; (2) The principle that payment to a seller's authorized agent (legal practitioners) discharges the purchaser's obligations even if the agent fails to account to the principal; (3) The principle that once a contract is properly performed and discharged by transfer, the contractual provisions (including domicilium) cease to bind the parties; (4) That nothing can flow from a nullity - an invalid cancellation cannot support a subsequent sale to third parties. The case demonstrates judicial intolerance for attempts to obtain double payment and abuse of court processes over nearly two decades of litigation.