Joel Simon Silonda (Substituted by Executor Vusumuzi Thomas Silonda) v Vusumuzi Nkomo

The appellant was the registered title holder of Umguza 100 Acre Lot 5A measuring 67.2123 hectares. On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4.047 ha) of the property for US$20,000. The respondent paid a deposit of US$10,000 and took occupation on 1 April 2010. He constructed a three bedroom cottage and four bedroom main house in 2010, installed electricity infrastructure in 2011, flushed a borehole, constructed septic tanks and Blair toilets, and erected a perimeter fence, expending a total of US$34,158.75 and R2,220 on developments. The respondent paid a total of US$19,000 towards the purchase price. Crucially, the agreement of sale was concluded without a subdivision permit as required by sections 39(1)(i) and 40 of the Regional, Town and Country Planning Act, rendering it null and void. The appellant sought but failed to obtain a subdivision permit for plots less than 5 hectares in 2000. A permit obtained in 2013 turned out to be fake. The relationship between the parties deteriorated, with the appellant refusing further payments and demanding the respondent keep his money while he kept his land.

• Whether the agreement of sale was null and void for non-compliance with mandatory provisions of the Regional, Town and Country Planning Act
• Whether the respondent had properly pleaded unjust enrichment in respect of improvements made to the property
• Whether the court a quo properly exercised its discretion in relaxing the in pari delicto rule
• What is the correct measure of compensation for unjust enrichment - actual expenses incurred or depreciated replacement value
• Whether the respondent was entitled to an improvement lien and conditional eviction order
• From what date should interest on the compensation commence to run
• Whether the costs order was appropriate

The appeal succeeded in part. Each party was ordered to bear its own costs. The order of the court a quo was set aside in respect of paragraph 4 and substituted with: (4) Interest at the prescribed rate on the US$125,000 compensation shall run from 2 May 2019 (date of judgment a quo); (5) The respondent shall vacate the property within two weeks of payment of the judgment debt plus interest, failing which the Sheriff shall evict him. The remainder of the court a quo's order (confirming the agreement as null and void, dismissing the claim for rentals, ordering payment of US$125,000 compensation, and costs against the appellant) was upheld.

1. An unjust enrichment cause of action can be established through evidence at trial even if inelegantly pleaded, provided the issues are identified at pre-trial conference and fully canvassed during trial without prejudice to the opposing party. 2. Where parties are equally involved in an illegal contract, courts may relax the in pari delicto rule where a party seeks to unravel (not enforce) the illegal agreement and prevent unjust enrichment. 3. In Zimbabwe, the measure of compensation for unjust enrichment arising from improvements must account for prevailing economic and monetary factors including inflation and currency revaluations, justifying awards based on depreciated replacement value at the date of judgment rather than nominal historical expenses. 4. A bona fide improver of property has a real improvement lien entitling him to retain possession until paid the equitable value of improvements, not merely out-of-pocket expenses. 5. Interest on unjust enrichment awards based on depreciated replacement value runs from the date of judgment, not from the date of summons or counterclaim. 6. Usefulness of improvements is measured objectively by added value to the property, not by the owner's subjective preferences or intentions.

The Court noted that the appellant's claim for reasonable rentals and holding over damages, while misconceived by counsel as a lease claim, could have been properly pursued as an unjust enrichment claim for the benefit the respondent derived from farming activities and rental savings during his 11-year occupation. The Court observed that equity would have required discounting the respondent's compensation by the value of such enrichment he received from occupying the property, but the appellant failed to establish this value and did not appeal on this point. The Court also commented on the appellant's bad faith in selling the plot knowing he could not legally subdivide it, having failed to obtain a subdivision permit in 2000 and knowing plots under 5 hectares were not viable for agriculture.

This case is significant in Zimbabwean jurisprudence for clarifying the law on unjust enrichment in the context of illegal contracts. It confirms that: (1) defective pleadings on unjust enrichment can be cured by evidence at trial where the issue is fully canvassed; (2) courts have wide equitable discretion when relaxing the in pari delicto rule to prevent unjust enrichment; (3) in Zimbabwe, unlike the strict Roman-Dutch position, compensation for improvements is measured by depreciated replacement value at the date of judgment rather than nominal historical expenses, to account for inflation and currency fluctuations; (4) improvement liens are real rights entitling the improver to retain possession until paid; and (5) bona fide occupiers who improve property pursuant to void agreements are entitled to equitable compensation reflecting the true value added, not merely their out-of-pocket expenses. The case demonstrates the courts' willingness to achieve substantive justice between parties to illegal transactions while upholding public policy against enforcing such agreements.