National Executor and Trust (Private) Limited and Others v Rosemary Singini

Rosemary Singini is the widow and executor of the estate of the late Singini Zamani, who was a lessee of property at 16 Kingsdale Avenue, Queensdale, Bulawayo. The property formed part of the estate of the late Francois De Lange, administered by the first appellant. Upon De Lange's death, the Trust wrote to Singini offering him a right of first refusal to purchase the property as sitting tenant. Singini initially offered Z$2,600,000, which was rejected. The Trust indicated they would seek better offers but give Singini the opportunity to match the highest offer, requiring a 10% deposit upon signature of an agreement of sale. On 3 and 5 July 2002, Singini was advised of a Z$3 million offer and confirmed he could match it. A letter dated 9 July 2002 from the Trust confirmed this. On 15 July 2002, Singini wrote confirming acceptance and requesting the agreement of sale to access funds. However, appellants then demanded full cash payment of Z$3 million by 4:30pm that day, refused to provide the agreement of sale, and threatened to sell to other buyers. Despite Singini's and his lawyers' efforts, appellants would not provide the agreement. The High Court granted an interdict preventing the appellants from selling to a third party.

• Whether the respondent established a prima facie right to an interdict
• Whether a valid contract had been concluded between the parties
• Whether the respondent had performed his obligations under the contract by matching the offer within a reasonable time
• Whether the appellants were entitled to change the terms of payment from 10% deposit upon signature to full cash payment immediately
• Whether the respondent was entitled to specific performance

The appeal was dismissed with costs.

Where a party granted a right of first refusal has matched the required offer within a reasonable time and in accordance with the agreed terms, a valid contract is concluded. That party is entitled to specific performance of the contract. The other party cannot unilaterally change the agreed terms of payment and procedure (such as requiring full cash payment instead of a 10% deposit, or refusing to provide necessary documentation) to frustrate performance. Prima facie, every party to a binding agreement who is ready to carry out their obligations has a right to demand performance from the other party in terms of the contract.

The Court observed that the appellants' conduct in refusing to acknowledge correspondence and changing terms could be attributed to either 'sheer ignorance of a simple office procedure of acknowledging correspondence or stubbornness', neither of which excused their behavior. The Court noted that the requirement for an agreement of sale was particularly important as the appellants must have known the respondent would require it to source funds for the balance of the purchase price, as evidenced by their own letter contemplating he might apply for a loan.

This case is significant in Zimbabwean contract law for affirming the principle that parties cannot unilaterally change agreed contractual terms to frustrate the other party's performance. It reinforces the right to specific performance where a party has fulfilled their contractual obligations, particularly in the context of rights of first refusal in property transactions. The case also demonstrates that courts will scrutinize conduct that appears calculated to prevent contractual performance and may find such conduct to be mala fide. It emphasizes that where terms require certain procedures (such as signature of documents before payment), those procedures must be followed and cannot be arbitrarily abandoned.