Daniel Francois Du Toit v George Mushambi and The Sheriff of the High Court N.O.

The applicant had an alleged oral joint venture agreement with the late Dr. Christopher Francis Mushambi concerning Lot 1 of Odzi Drift Estate in Mutasa District, Manicaland Province. Upon Dr. Mushambi's death on 15 November 2020, the first respondent (acting under a Special Power of Attorney as executor of the estate) filed summons for eviction under HC 4742/21 on the basis that the oral agreement expired with Dr. Mushambi's death. The summons were served on the applicant by affixing to a screen gate. The applicant failed to file a notice of appearance within the dies induciae, and a default judgment was obtained on 10 November 2021. When the Sheriff attended on 25 March 2022 to execute the writ of ejectment, the applicant filed an application for rescission of default judgment (HC 2086/22) and this urgent application seeking suspension of the writ pending determination of the rescission application. The applicant claimed he never saw the summons and was not in willful default, and that he had a bona fide defense based on the oral joint venture agreement which was to subsist for five years from 2021.

• Whether the applicant had a valid cause of action based on an oral joint venture agreement in respect of allocated agricultural land
• Whether an oral joint venture agreement entered into without the Minister's written consent contravenes the Agricultural Land Settlement (Permit Terms and Conditions) Regulations 2014
• Whether an illegal agreement can found a bona fide defense in rescission proceedings
• Whether the applicant was entitled to urgent interim relief suspending a writ of execution

1. The point in limine that there is no cause of action based on illegality is upheld. 2. The application is dismissed. 3. Applicant is ordered to pay costs.

An oral joint venture agreement concerning allocated agricultural land entered into without the written consent of the Minister, in contravention of section 7(1)(b) of the Agricultural Land Settlement (Permit Terms and Conditions) Regulations S.I. No. 53 of 2014, is illegal and void. No cause of action can be founded on an illegal agreement. A thing done contrary to direct prohibition of law is void and of no force or effect, and disregard of a peremptory statutory provision is fatal to the validity of proceedings affected. An illegal agreement cannot constitute a bona fide defense in rescission proceedings or establish prospects of success entitling a party to interim relief suspending execution.

The court noted that even if the illegality point had not been upheld, the applicant faced another insurmountable contradiction: he claimed the oral joint venture agreement was entered "sometime in 2021" yet the Letters of Administration showed that Dr. Christopher Francis Mushambi had died on 15 November 2020, making it impossible for the agreement to have been concluded in 2021. The applicant never challenged this contradiction. The court also observed in passing that it is trite that courts are entitled to make reference to their own records and proceedings brought before them, and to take note of their contents, even in summary judgment proceedings, citing Mhungu v Mtindi 1986 (2) ZLR 171 (SC).

This case reinforces the strict application of statutory requirements governing agricultural land use in Zimbabwe. It demonstrates that courts will not countenance agreements relating to allocated agricultural land that contravene mandatory regulatory provisions, specifically the requirement for Ministerial consent for partnerships or joint ventures. The case illustrates that illegality is a complete bar to founding a cause of action, and that purported defenses based on illegal agreements will not establish prospects of success in rescission applications or entitle parties to interim relief. It also confirms the court's power to refer to its own records and documents filed before it when determining preliminary points, including in urgent applications.