Idanai Steward Mazaiwana (in his capacity as the Executor Dative in the Estate of the Late Phinias Itanai Mazaiwana) v Teddy Ndlovu

The plaintiff, as executor of a deceased estate, was the registered owner of Gwizaan Farm in the District of Bubi. The estate was in debt and required funds. On 13 June 2017, the plaintiff and defendant entered into a "Memorandum of Agreement of Understanding" whereby the defendant would advance funds to settle the estate's debts. In consideration, the defendant was granted certain rights over the farm and took occupation in June 2017. The agreement contemplated a future subdivision of the farm and subsequent sale of one half to the defendant. The defendant paid significant sums (plaintiff tendered reimbursement of ZWL$109,000). The plaintiff alleged he was unable to secure a subdivision permit from authorities due to opposition from the Ministry of Mines and Mining Development.

• Whether the Memorandum of Agreement of Understanding was an illegal and void agreement for sale of unsubdivided agricultural land in contravention of section 39 of the Regional, Town and Country Planning Act [Chapter 29:12], or a valid preliminary agreement granting a right of first refusal
• Whether the plaintiff was entitled to a declarator that the agreement was null and void and an order for eviction of the defendant
• Whether the defendant was entitled to specific performance compelling the plaintiff to apply for a subdivision permit

1. The Plaintiff's claim dismissed in its entirety. 2. The Defendant's counterclaim granted. 3. The Plaintiff directed to take all necessary steps within 90 days to apply for and diligently prosecute an application for a subdivision permit for Gwizaan Farm to subdivide it into two portions as contemplated in the agreement dated 13 June 2017. 4. The Plaintiff to pay costs of suit.

An agreement granting a right of first refusal to purchase land conditional upon future subdivision is not an illegal sale of unsubdivided land in contravention of section 39 of the Regional, Town and Country Planning Act [Chapter 29:12]. The illegality under section 39 arises only when the actual sale is concluded without the required subdivision permit. A valid contract of sale requires certainty as to the merx (thing sold); where the specific portion of land has not been delineated and is dependent on future subdivision, no valid sale has been concluded. Courts must interpret contracts to give effect to the parties' true intentions as expressed in the agreement, and will not be bound merely by the title or form of the document. Where a party has performed their contractual obligations, they are entitled to specific performance compelling the other party to perform, and the remedy cannot be withheld where performance remains possible.

The court observed that the procedure of determination by stated case on agreed facts was commendable as it curtailed costs and expedited resolution of disputes. The court noted that the plaintiff appeared to have developed "seller's remorse" and was attempting to use a purported refusal from authorities as a basis to escape contractual obligations. The court commented that the plaintiff had been evasive about the steps taken to obtain the subdivision permit and had not demonstrated that performance was impossible, having produced only letters showing an objection from a government ministry rather than a final refusal from the responsible authority.

This case is significant for clarifying the distinction between an illegal agreement for sale of unsubdivided land and a lawful preliminary agreement granting a right of first refusal conditional on future subdivision. It reinforces that courts will interpret contracts to ascertain the true intention of parties rather than be bound by form alone. The judgment also affirms the primacy of specific performance as a remedy in Zimbabwean contract law where one party has performed and the other has not, and that a party cannot escape contractual obligations through lack of diligence or change of heart. The case provides important guidance on the application of section 39 of the Regional, Town and Country Planning Act and when such statutory prohibitions are triggered.