The first respondent, Zimbabwe Reinsurance Corporation Limited, owned 384 two-bedroom flats in Harare known as "Eastview Gardens" which were rented to members of the appellant residents association. On 9 February 2001, the first respondent wrote to sitting tenants offering to sell the flats at $950,000 per unit with various payment terms, requesting written acceptance by 28 February 2001. On 15 February 2001, the first respondent withdrew this offer, deciding instead to sell the flats block by block, and offering tenants the option to purchase from available blocks. Some tenants accepted the offer and indicated units they wanted to purchase by 28 February 2001, but 309 tenants did not. The flats were then offered to the general public at the same price. The appellant, on behalf of the 309 tenants who had not accepted the offer, brought urgent applications seeking to interdict the sale of the flats, claiming a right of pre-emption (first refusal) had been granted by the letter of 9 February 2001 and wrongfully revoked.
The appeal was dismissed with costs. The provisional order granting the temporary interdict was discharged and the application for an interim interdict was dismissed.
1. A right of pre-emption (first refusal) can only be created by contract or agreement wherein the grantor undertakes to offer property to the grantee first at a price equal to that offered by third parties. 2. An ordinary offer, unaccompanied by an undertaking to keep it open for a specified period, may be withdrawn on notice to the offeree at any time before acceptance. 3. For a temporary interdict to be granted, the applicant must establish: (a) a right which, though prima facie established, is open to some doubt; (b) a well-grounded apprehension of irreparable injury; and (c) the absence of ordinary remedy. 4. Courts have no power to create legal rights or make contracts for parties; their duty is to interpret the law and declare and enforce existing rights.
The Court observed that the appellant, as an association, could not claim a right of pre-emption over the flats since the letter of 9 February 2001 was not addressed to it and the appellant had no lease agreement with the first respondent. The Court also noted that an interdict prohibiting the sale of the vast majority of flats in the complex could not be justified where there was no evidence that all tenants in those flats were interested in and able to buy the flats they occupied. Only those tenants who had accepted the offer could seek to enforce their contractual rights.
This case is significant in Zimbabwean/South African contract law for clarifying the essential requirements for the creation of a right of pre-emption (first refusal). It reinforces the principle that such rights can only arise from contractual agreement, not from simple offers to sell. The case also confirms the common law rule that ordinary offers (without an undertaking to keep them open) may be withdrawn at any time before acceptance. Additionally, it provides guidance on the requirements for granting temporary interdicts, emphasizing that a prima facie right must be established. The judgment importantly reaffirms the limits of judicial power, stating clearly that courts cannot create contractual rights or make contracts for parties, but can only interpret and enforce existing legal rights.