Phillip Tsamwa v Ndoda Hondo and Thomas Kobo Munemo and Registrar of Deeds

The plaintiff entered into an agreement of sale on 14 May 2004 for the purchase of Lot 1 of Lot 310 Block B Hatfield Estate measuring 5,379 square meters. The agreement appeared to be signed by Ndoda Hondo (first defendant), the registered owner of the property. However, the signature was actually appended by Thomas Kobo Munemo (second defendant), who claimed to use the name 'Ndoda Hondo' as a Chimurenga war name. The plaintiff initially believed the two names referred to one person, but later discovered they were two different individuals who were brothers. The property was registered in the first defendant's name, though he claimed it belonged to the second defendant. At the time the agreement was entered into, no subdivision permit existed, though an application had been submitted to the City of Harare. The first defendant had signed a Special Power of Attorney on 16 June 2000 appointing the second defendant as his agent for transactions concerning the property. The plaintiff sought transfer of the subdivision upon payment of the balance purchase price of $50 million, or alternatively damages.

• Whether the agreement of sale was valid despite not being signed by the person it purported to be signed by
• The effect of the Special Power of Attorney on the validity of the agreement
• Whether the plaintiff or defendants breached the agreement
• Whether the agreement contravened section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] by being entered into before a subdivision permit was granted
• Whether the court could exercise discretion to enforce an illegal contract to do justice between the parties

The plaintiff's claim was dismissed with costs.

An agreement for the change of ownership of any portion of property entered into before a subdivision permit is granted is null and void ab initio under section 39 of the Regional, Town and Country Planning Act. The prohibition in the statute applies to the agreement itself, regardless of when performance is intended to occur or whether the agreement is conditional upon obtaining a permit. The subsequent granting of a subdivision permit cannot validate an agreement that was illegal at its inception. Courts cannot enforce contracts that are expressly prohibited by statute, even on equitable grounds or to do justice between parties.

The court noted several other problematic aspects of the agreement that it did not need to determine: (1) whether the agreement was valid given it was not signed by the person it purported to be signed by; (2) the effect of the Special Power of Attorney which referred to different property addresses; (3) whether either party breached the agreement; (4) that the plaintiff failed to amend his pleadings after discovering the two defendants were different persons, leaving no cause of action properly pleaded against the second defendant. The court also observed that even an innocent plaintiff cannot enforce an illegal contract, and the court is bound to refuse enforcement even if no objection to legality is raised by the parties.

This case reinforces the strict application of section 39 of the Regional, Town and Country Planning Act in Zimbabwe (and by extension similar provisions in South African planning law). It establishes that courts will not enforce agreements for the sale of unsubdivided portions of land entered into before a subdivision permit is obtained, regardless of: (1) whether an application for a permit has been submitted; (2) whether the agreement is conditional; (3) whether a permit is subsequently obtained; or (4) equitable considerations between the parties. The case emphasizes that planning authorities must not have their hands forced by pre-emptive agreements, and that courts have no discretion to enforce contracts that are expressly prohibited by statute, even where one party appears to have acted in good faith.