Global Electrical Manufacturers v (1) Nexbak Investments (Private) Limited (2) Andrew Ngoni Chirikure (3) The Registrar of Deeds

The appellant (Global Electrical Manufacturers) had been leasing stand 63 Mbuya Nehanda Street, Harare and was given a right of first refusal to purchase it for $4,000,000. The appellant claimed to have paid a deposit of $2,000,000 but could not raise the balance. The second respondent (a director of the first respondent company, Nexbak Investments) agreed to pay the balance of $2,000,000, with the property to be transferred to the first respondent's name at the bank's request. The first respondent subsequently acquired stand 62 Mbuya Nehanda Street (opposite stand 63). The appellant claimed that an agreement was reached whereby it would become owner of stand 62 in lieu of its share of stand 63. The respondents denied this, stating they paid the entire purchase price of stand 63 ($4,687,500 total) and that the appellant merely occupied stand 62 temporarily in return for paying rates and council charges. When asked to vacate stand 62, the appellant brought a claim compelling the respondents to transfer stand 62 to it.

• Whether the appellant made any financial contribution towards the purchase of stand 63 Mbuya Nehanda Street
• Whether there was an agreement between the parties entitling the appellant to take transfer of stand 62 Mbuya Nehanda Street
• Whether the appellant repudiated its right of first refusal in respect of stand 63
• Whether a right of first refusal can be enforced after instructing the seller to transfer property to a third party

The appeal was dismissed with costs.

A right of first refusal is repudiated and comes to an end when the holder of that right expressly agrees and instructs that title be transferred to a third party. Once repudiated in this manner, the right cannot be subsequently enforced. A party claiming financial contribution toward property acquisition must provide documentary evidence to prove such contribution, particularly where the other party produces evidence of having paid the full purchase price. An alleged agreement to transfer property in lieu of a share in another property must be proved on a balance of probabilities, and where parties are commercially sophisticated (such as an experienced estate agent), it is highly improbable that such an agreement would not be reduced to writing.

The Court made strong observations regarding professional conduct by legal practitioners. GARWE JA stated that while legal practitioners are entitled to challenge court decisions, they must use appropriate language. Suggesting that a judge acted "irrationally" constitutes a serious allegation, and the use of terms like "undeservedly" or questioning whether a judge "judicially conceptualized" has no place in a courtroom. Such intemperate language must be censured, especially where the attack on the judgment is found to be completely without foundation. The Court emphasized that while practitioners act on instructions, they must maintain professional ethics in their submissions.

This Zimbabwean Supreme Court case establishes important principles regarding rights of first refusal in property transactions and the standard of proof required in property disputes. It clarifies that a right of first refusal is extinguished when the holder expressly repudiates it by allowing transfer to a third party, and cannot subsequently be enforced against that third party. The case also reinforces evidentiary standards requiring documentary proof of financial contributions in property disputes, particularly where parties are commercially sophisticated. Additionally, it serves as an important reminder to legal practitioners regarding professional conduct and the appropriate use of language when challenging judicial decisions.