Misheck Muza v Reggie Francis Saruchera N.O. and Others

The applicant was a former employee of J W Jaggers Wholesalers (Pvt) Ltd (Jaggers), which was placed under liquidation. As an employment benefit, the applicant was offered subsidized tenancy of a property at number 8 Prices Road, Emerald Hill, Harare. The first respondent, as liquidator of Jaggers, proceeded to dispose of the company's assets including the property in question. On 5 March 2013, the liquidator wrote to the applicant advising that the property was for sale at US$140,000 and offered him as a sitting tenant "the right to make your offer" within 5 days. The applicant responded on 7 March 2013 expressing his intention to purchase using his share from liquidation and requesting information about his entitlement. On 12 March 2013, a letter was written by Quic Quick Systems purporting to guarantee the balance after set-offs. The property was subsequently sold to the second respondent (Price Trust) who took transfer and occupation. The applicant sought to interdict the transfer, claiming he had a right of first refusal which had been breached.

• Whether the applicant had a right of first refusal over the property
• Whether being a sitting tenant automatically confers a right of first refusal
• Whether the letter of 5 March 2013 created a right of first refusal or merely a right to make an offer
• Whether the applicant's response and the Quic Quick Systems letter constituted a valid offer in law
• Whether the requirements for a valid offer were met (certainty, clarity and unambiguous terms)

The application was dismissed with costs.

1. A right of first refusal (pre-emptive right) must be created by agreement and does not arise automatically from a tenancy relationship. The party claiming such a right bears the onus of proving its existence through a valid contract. 2. For a valid offer to exist in contract law, it must be clear, unambiguous, definite and complete. An offer must express certainty about what is promised and when it is to be fulfilled. 3. A communication that merely expresses an intention to purchase subject to uncertain conditions (such as undefined set-offs) does not constitute a valid offer capable of acceptance. 4. An invitation to make an offer does not itself create a right of first refusal; it merely creates an opportunity to submit an offer which may or may not be accepted.

The court observed that the applicant appeared to mistakenly believe that being a sitting tenant automatically entitled him to a right of first refusal. The court noted that the applicant's attempt to amend the relief sought to cancellation and reversal of transfer after the transfer had been completed was impossible as all the evidence on paper dealt with the sale and not the transfer. The court also made passing reference to the principles of contractual interpretation, noting that while contracts may be binding even if ambiguous, an offer must be unequivocal, positive and unambiguous.

This case clarifies important principles in Zimbabwean law regarding the distinction between a right of first refusal and a right to make an offer. It confirms that sitting tenants do not automatically acquire pre-emptive rights to purchase property merely by virtue of their tenancy status. The case also reinforces the strict requirements for valid contractual offers, emphasizing that offers must be certain, clear and unambiguous to be legally effective. The judgment provides useful guidance on how courts will interpret correspondence in commercial transactions to determine whether a binding agreement has been reached, applying the principles that consensus must be established and that uncertain or conditional expressions do not constitute valid offers.