Petros Lufeli v Jockstar Investments (Pvt) Ltd and Elizabeth Vanjeru and Nicole Tadiwa Wanjiri Chigonde

On 17 December 2009, the applicant entered into an agreement of sale with the first respondent to purchase Stand No 2468 Zizalisari for $15,000.00. The applicant paid the full purchase price and development fees as evidenced by receipts from Pride Real Estate Agency. After payment, the first respondent issued the applicant a clearance certificate for stand number 3027 instead of stand 2922 (formerly stand 2468). The applicant claimed he was allocated the wrong stand number. The second and third respondents had also purchased stand 2922 from the first respondent, held a clearance certificate for it, and had developed the property. The agreement of sale contained clause 7 in the preamble stating that purchasers accepted that the Surveyor General and other relevant authorities may modify or change the number, size or shape of the stands on approval. The matter originally came before Mathonsi J who ordered that the second and third respondents be joined as parties since they had an interest in the outcome.

• Whether the applicant was entitled to a declaratur that he is the true and legal holder of rights, title and interest in Stand No 2922 (formerly Stand 2468)
• Whether the agreement of sale was illegal under sections 39(1) and 40 of the Regional Town and Country Planning Act [Chapter 29:12] as the subdivision was not approved at the time of the agreement
• Whether the applicant was entitled to specific performance requiring the first respondent to issue a clearance certificate for Stand No 2922
• Whether the court should exercise its discretion to grant a declaratur under section 14 of the High Court Act where there are conflicting claims to the property

Application dismissed with costs

Where an agreement of sale for land expressly provides that the purchaser accepts that relevant authorities may modify or change the number, size or shape of stands upon approval, the purchaser cannot insist upon a specific stand number but is only entitled to insist upon the provision of a stand. The court will not grant specific performance where it would operate unduly harshly on other parties, particularly where those parties have obtained clearance certificates, invested in and developed the property, and where the applicant has already been allocated an alternative stand of equivalent size. The discretion to grant a declaratur under section 14 of the High Court Act must be exercised judicially considering all relevant facts, including the competing rights of other interested parties in double sale situations.

The court made obiter comments approving the guidance from Mathonsi J's earlier judgment in the same matter, particularly regarding the illegality of contracts under the Regional Town and Country Planning Act. Mushore J cited with approval McNally JA's statement in X-Trend-A-Home that agreements for change of ownership entered into before subdivision approval are prohibited to prevent developers from forcing town planning authorities' hands. The court also commented that it suspected the applicant would have been aware or suspected that his ability to obtain a declaratur could be met with lawful resistance by the second and third respondents, questioning why they were not cited initially.

This case is significant in Zimbabwean property law as it clarifies the legal position regarding land sales where agreements are entered into before official subdivision approval by town planning authorities. It demonstrates the application of section 39(1) and 40 of the Regional Town and Country Planning Act and reinforces that developers cannot force planning authorities to be bound by agreements where subdivisions remain unofficial. The case also illustrates the court's approach to exercising discretion in granting declaraturs and specific performance in double sale scenarios, particularly where one party has developed the property and the relief sought would cause undue hardship. It emphasizes the importance of express contractual terms regarding potential changes to stand numbers, sizes or shapes pending regulatory approval.