The Trustees for the Time Being of the Blessing Muzanenhamo Trust v Edison Wamambo and Others

On 2 September 2019, the applicant (a trust) purchased immovable property known as Stand 17788 Tynwald Township, measuring 531 square metres, from the fourth and fifth respondents for ZW$300,000. On 26 October 2020, the applicant discovered that the first and second respondents were carrying out developments on the property, having erected a wooden cabin and digging foundations for a superstructure. On 2 November 2020, Justice Chikowero granted a provisional order interdicting the first and second respondents from any further development. The first and second respondents opposed confirmation, arguing that the second respondent had purchased the property from the third respondent on 15 October 2020, who had allegedly bought it from Martin Sibindi on 13 August 2016. The applicant's name did not appear on the Certificate of Registered Title, which showed Martin Sibindi as the owner. Despite the provisional order, the first and second respondents continued building on the property.

• Whether the applicant had real rights over the property based on an agreement of sale
• Whether the agreement of sale between Martin Sibindi and the third respondent was valid and enforceable
• Whether the first and second respondents' agreement of sale with the third respondent was valid
• Whether the agreement of sale violated section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] by being entered into before a subdivision permit was granted
• Whether a declarator should be granted declaring the second and third respondents' agreement null and void
• Whether the applicant was entitled to demolish structures erected in defiance of a court order
• Whether punitive costs were warranted given the defiance of the provisional order

1. The provisional order granted on 2 November 2020 was confirmed and made final. 2. The agreement of sale between the second and third respondent regarding Stand 17788 Tynwald Township was declared null and void. 3. The first to third respondents were interdicted from interfering with applicant's possession or occupation of the property. 4. The applicant was authorized to demolish and remove any development or superstructure on the property. 5. The first to third respondents were ordered to pay costs on a legal practitioner and client scale.

An agreement of sale for a subdivided portion of property entered into before the grant of a subdivision permit is illegal and unenforceable in terms of section 39(1)(b) of the Regional, Town and Country Planning Act [Chapter 29:12]. A purchaser who acquires property through a valid agreement of sale from the legitimate owners obtains real rights over the property that are enforceable against third parties, even where the Certificate of Registered Title has not yet been transferred. Such real rights take precedence over claims based on subsequent illegal agreements. Where a party defies a provisional court order, punitive costs on a legal practitioner-client scale are warranted.

The court noted discrepancies between the property descriptions in the competing agreements (land shares 100-150 versus Stand 17788), suggesting these were not the same property. The court also observed that Martin Sibindi had issued a public notice in the Sunday Mail newspaper on 15 November 2020 denying that he had sold the property to the third respondent and identifying the third respondent as one of several individuals illegally selling stands in the area. While not strictly necessary for the decision, the court noted that even if the respondents' counsel's argument about first-time raising of issues in heads was correct, the court still has wide discretion in granting or refusing declaratory orders, though such discretion was not determinative in this case.

This case reinforces the strict application of section 39 of the Regional, Town and Country Planning Act [Chapter 29:12], establishing that agreements of sale for subdivided properties entered into before the granting of a subdivision permit are illegal and unenforceable. It demonstrates the courts' willingness to protect purchasers who have acquired property through legitimate agreements of sale, recognizing their real rights even before registration of transfer. The case also establishes that defiance of provisional court orders will attract punitive costs. It clarifies that real rights can arise from valid agreements of sale, providing protection to purchasers against subsequent competing claims based on invalid agreements. The judgment emphasizes the importance of compliance with planning legislation in property transactions.