Rumbidzai Hamandishe v Frederick Manyangarirwa N.O. and Others

The applicant was one of two surviving spouses of the late Maruta Jawona who died intestate on 17 February 2013. The first respondent was appointed Executor Dative of the estate. The applicant lodged a claim for a 50% share in Stand 5603 Budiriro Township, which was accepted by the first respondent. The estate needed to sell the property to raise funds for liabilities. The applicant offered to buy the estate's other 50% share. The property was valued at $160,000 in October 2013, requiring the applicant to pay $80,000. An agreement of sale was executed on 18 February 2014, but the applicant failed to raise the purchase price despite extensions. On 11 July 2014, the first respondent notified her of breach and the agreement was terminated on 15 September 2014. The property was subsequently sold to the second and third respondents in June 2015 for $80,000 based on a second valuation done in March 2015 which valued it at $75,000 (open market) due to dilapidation while the applicant occupied it. The applicant sought to set aside the sale, claiming she had a right of first refusal at the reduced price, that the sale was fraudulent, and that the property was sold for an unreasonably low price.

• Whether the applicant had a right of first refusal to purchase the property at the reduced price
• Whether the first respondent's sale of the property to the second and third respondents was fraudulent
• Whether the sale to the second and third respondents should be cancelled

The application was dismissed. Each party was ordered to bear their own costs.

A right of first refusal or pre-emption can only be created by express contract or agreement between the grantor and grantee. Where breach of such a right is alleged and its existence is denied, the onus is on the plaintiff to show that there was an agreement in terms of which the defendant undertook to offer the property to the plaintiff first. The acceptance of a creditor's claim under the Administration of Estates Act does not translate into a grant of right of first refusal. A terminated agreement of sale containing no right of first refusal clause cannot give rise to such a right after termination. To establish fraud in a property sale, the party alleging fraud must prove that purchasers were aware of their interests in the property and that despite such awareness, colluded with the seller to act fraudulently to their detriment. Innocent purchasers for value who acquire property without knowledge of prior claims are entitled to retain the property.

The court observed that if the applicant had serious concerns about the valuation of the property at the time of sale to the second and third respondents, she could easily have obtained her own independent valuation to place before the court, as the onus was on her to show that the property had not depreciated in value. The court also noted that where there is a time lapse of over 16 months between valuations, market forces and physical deterioration of property can legitimately affect value. The court further commented that if the applicant had any complaint pertaining to her accepted claim, she should look to the estate late Maruta Jawona for realization of her claim through the first respondent as administrator, rather than seeking to set aside a sale to innocent third parties. In terms of costs, while noting the applicant was unsuccessful, the court exercised its discretion to order each party to bear their own costs in the interests of justice given the nature of the dispute.

This case clarifies important principles in Zimbabwean law regarding rights of first refusal in the context of estate administration. It establishes that: (1) a right of pre-emption or first refusal must arise from an express contract or agreement and cannot be implied from the mere acceptance of a claim in an estate or from a prior agreement that has been terminated; (2) the acceptance of a creditor's claim under the Administration of Estates Act does not create a right of first refusal; (3) allegations of fraud in property transactions require proof of collusion and fraudulent intent, not merely dissatisfaction with the sale price; and (4) innocent purchasers for value who acquire property through proper channels (such as responding to advertisements) and without knowledge of prior claims are protected. The case also demonstrates the burden on parties challenging property valuations to adduce their own expert evidence rather than relying solely on assertions.