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 to settle its obligations. 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 occupation rights over the farm and a right to purchase one-half of the farm after subdivision. The defendant paid significant sums (at least ZWL$109,000) and took occupation of the farm in June 2017. The agreement contemplated future subdivision of the farm and subsequent sale of one portion to the defendant. The plaintiff claimed he was unable to secure the necessary subdivision permit, citing opposition from the Ministry of Mines and Mining Development. The plaintiff then sought to nullify the agreement and evict the defendant, arguing the agreement was an illegal sale of unsubdivided agricultural land in violation of section 39 of the Regional, Town and Country Planning Act.

• What was the true legal nature of the Memorandum of Agreement - was it an illegal agreement of sale of unsubdivided land, or a valid preliminary agreement granting a right of first refusal?
• Whether the agreement violated section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] which prohibits sale of portions of property without a subdivision permit
• Whether the plaintiff was entitled to a declarator nullifying the agreement and evicting the defendant
• Whether the defendant was entitled to specific performance compelling the plaintiff to apply for the subdivision permit
• Whether an agreement granting a right of first refusal conditional upon future subdivision constitutes an illegal sale under the Act

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

An agreement granting a right of first refusal to purchase a portion of agricultural land, conditional upon the grantor first obtaining a subdivision permit, does not violate section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] and is not an illegal contract of sale. The illegality under section 39 arises only when the sale itself is concluded without the required subdivision permit. For a valid contract of sale to exist, the essential elements of agreement on the thing sold (merx) and price (pretium) must be present with certainty; where the specific portion of land to be sold is not defined and is contingent upon future subdivision, no contract of sale has been formed. A party who has performed its contractual obligations by advancing funds pursuant to a valid agreement is entitled to specific performance compelling the other party to take all necessary steps to fulfill its obligations, including applying for and diligently prosecuting applications for necessary permits.

The court observed that the plaintiff appeared to have developed "seller's remorse" and was seeking to use a purported refusal of the subdivision permit as a basis to escape contractual obligations. The court noted that the plaintiff was evasive about what steps had been taken to obtain the permit, declining to provide particulars and producing only letters showing an objection from a government ministry rather than a final refusal from the responsible authority. The court commented that there was no evidence of what steps, if any, the plaintiff took to address the objection or pursue the application to finality. The court commended the stated case procedure as curtailing costs and expediting resolution of disputes.

This case is significant in Zimbabwean contract and property law as it clarifies the distinction between an illegal agreement for the sale of unsubdivided agricultural land and a lawful preliminary agreement granting a right of first refusal conditional upon future subdivision. It affirms that section 39 of the Regional, Town and Country Planning Act prohibits actual sales without subdivision permits, but does not prohibit agreements to grant rights of first refusal conditional upon obtaining such permits. The case demonstrates the court's willingness to look beyond the form of an agreement to ascertain the true intention of the parties, while also refusing to find simulation or illegality without cogent evidence. It reinforces the principle that specific performance remains a primary remedy for breach of contract where one party has performed its obligations and the other party attempts to avoid performance through unsubstantiated claims of impossibility.