Martsmart Private Limited and Brainchild Properties Private Limited v Brennan James Michael De Bryun and Advance Africa Holdings Private Limited

The first applicant entered into an agreement with the first respondent for the sale of shares in the second applicant, which held rights to Stand 712 Kwekwe Township. Money was paid pursuant to this agreement and the applicants took occupation of the property. Subsequently, the first respondent entered into a fresh agreement with the City of Kwekwe whereby the second respondent was substituted as the purchaser of rights in the property from the City. The first respondent then took the position that he was no longer bound by the original share sale agreement with the applicants. The respondents initiated the process for approval of drawings for structures to be constructed on the disputed property and declared their intention not to be bound by the agreements in terms of which the applicants acquired rights. The applicants brought an urgent application for an interim interdict to prevent the respondents from entering, staying at, or carrying out any construction or activity at the property.

• Whether the applicants established the requirements for an interim interdict
• Whether the applicants had a prima facie right to the property based on the share sale agreement
• Whether there was a reasonable apprehension of irreparable harm to the applicants
• Whether the applicants had an alternative remedy
• Whether the balance of convenience favoured granting the interim relief
• Whether the subsequent agreement between the respondents and the City of Kwekwe invalidated the original share sale agreement with the applicants

The provisional order was granted in terms of the draft order, interdicting the respondents, their agents, assignees, associates, employees or anyone acting under their control or direction from entering, staying at or carrying out any construction or any activity of whatever nature at Stand 712 Kwekwe Township.

Where an applicant establishes a prima facie right to property based on an agreement of sale, coupled with payment of consideration and occupation pursuant to that agreement, an interim interdict will be granted to prevent interference with that right pending determination of the main dispute, provided the other requirements for an interdict are met. A provision in a subsequent agreement between one party and a third party that prohibits alienation without consent does not invalidate an earlier agreement for the sale of rights in the property, which remains binding inter partes. For the purposes of interim relief, the court need only be satisfied that the requirements for an interim interdict are established, not whether the applicant will ultimately succeed in the main case.

The court observed that whether or not a right exists is a question of substantive law, while whether that right is clearly or only prima facie established is a question of evidence. The court also noted that the question of whether the applicant will ultimately succeed in the main case is for determination in that matter (HC 8934/19), emphasizing the limited scope of inquiry in applications for interim relief.

This case demonstrates the application of the requirements for granting interim interdicts in Zimbabwean law, particularly in property disputes involving competing claims based on successive agreements. It clarifies that a provision in a subsequent agreement prohibiting alienation does not automatically invalidate an earlier agreement which remains binding between the original parties. The case illustrates the protective role of interim interdicts in preserving the status quo pending determination of the main dispute, and emphasizes that courts will grant such relief where there is at least a prima facie right and the balance of convenience favours protection of that right.