Juliana Dube (nee Kunyarimwe) and Jonathan Kunyarimwe v Freddy Chimbari N.O. and Master of the High Court N.O. and Tendai Phineas Nyagwande and Edna Zivai Nyagwande

The applicants were beneficiaries in the intestate estate of the late James Mutererwa Kunyarimwe. The estate included a piece of land measuring 9465 m² held under Deed of Transfer 3351/73, known as 64 Borrowdale Brooke Estates. The first respondent, as executor of the estate, concluded an agreement of sale for the property with the third and fourth respondents on 24 June 2017. The applicants claimed they had been granted a right of first refusal to purchase the property. A provisional order was granted on 24 October 2017 staying execution of the agreement and ordering an inquiry. Despite the interim order, title to the property was subsequently transferred to the third and fourth respondents. The first respondent claimed the applicants had merely been given an option agreement to purchase the property by 15 August 2016 for $180,000 within three months (later extended to 30 December 2016), which they failed to exercise.

• Whether the applicants had a right of first refusal or merely an option agreement to purchase the property
• Whether the first respondent breached the right of first refusal agreement by selling to the third and fourth respondents without offering the property to the applicants first
• Whether the agreement of sale between the first respondent and third and fourth respondents should be declared null and void
• Whether the transfer of ownership to the third and fourth respondents should be set aside
• The distinction between a right of first refusal (right of pre-emption) and an option to purchase

The provisional order granted on 24 October 2017 was confirmed with the following terms: (a) The agreement of sale between the first respondent and third and fourth respondents was declared null and void; (b) The transfer of the property to the third and fourth respondents was set aside; (c) The first respondent was ordered to release all necessary documents to enable the applicants to exercise their right of first refusal within seven days of receipt of the order; (d) The applicants were required to furnish the first respondent with a written list of documents considered necessary to exercise their right of first refusal; (e) The first respondent was ordered to pay costs of suit.

A right of first refusal (right of pre-emption) requires the grantor, when deciding to sell property, to first offer it to the grantee at a price equal to that offered by a third party or which the grantor is prepared to accept. The grantor must inform the grantee of the decision to sell at the price offered by a particular buyer and ask the grantee to exercise the right of first refusal before accepting the third party's offer. Failure to do so constitutes a breach of the right of first refusal agreement. An agreement of sale concluded in breach of a right of first refusal is void ab initio and a complete nullity. Any transfer of title based on such a void agreement is also a nullity and must be set aside, as one cannot build something valid on a void foundation. Parties are bound by admissions made in their pleadings and cannot resile from such admissions through submissions at the hearing.

The court noted that the first respondent's failure to comply with the interim order staying execution of the agreement (by allowing transfer to proceed) was not treated as willful contempt after the first respondent consented to setting aside the transfer. The court observed that the Master's inquiry under section 116 of the Administration of Estates Act concluded that procedural matters up to the time of sale were proper, but that contractual disputes were outside the Master's jurisdiction. The court also noted that the first respondent, being sued in his official capacity, would not suffer prejudice if barred from being heard. The court distinguished between the negative element of pre-emption (restraining sale to third parties) and the positive element (obligation to sell to the grantee once prepared to sell).

This case provides important guidance on the distinction between a right of first refusal (right of pre-emption) and an option to purchase in Zimbabwean law, drawing on South African jurisprudence. It clarifies the obligations of a grantor under a right of first refusal agreement, specifically that the grantor must offer the property to the grantee at the price offered by a third party before concluding any sale with that third party. The case also demonstrates the application of the principle that a void agreement is a nullity from which no valid legal consequences can flow, including the transfer of property rights. It emphasizes that parties cannot resile from admissions made in their pleadings merely through submissions. The case is also significant for its application in the context of estate administration, confirming that executors are bound by pre-emption rights granted to beneficiaries.