Idanai Steward Mazaiwana (In his capacity as the Executor dative in the estate of the late Phinias Itanai Mazaiwana) v Teddy Ndlovu

### Preamble
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HB 151/25
HC 54/23
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IDANAI STEWARD MAZAIWANA

(In his capacity as the Executor dative in the estate of the late

Phinias Itanai Mazaiwana)

Versus

TEDDY NDLOVU

HIGH COURT OF ZIMBABWE

HON. M DUBE J

BULAWAYO 09 MAY 2025 & 01 SEPTEMBER 2025

Civil Trial- Stated case

N Ndlovu, for the plaintiff

A Mutatu, for the defendant

DUBE J:  	This matter comes before me by way of a stated case. The parties have submitted a Statement of Agreed Facts and have agreed that the issues in dispute can be determined on the papers without the need for oral evidence. This procedure is commendable as it curtails costs and expedites resolution of the dispute.

The plaintiff is the executor of a deceased estate, which is the registered owner of Gwizaan Farm, situate in the District of Bubi (“the Farm”). The defendant is in occupation of the farm pursuant to a written agreement entered into by the parties on 13 June 2017. The crux of the dispute is the legal nature and enforceability of that agreement, styled a “Memorandum of Agreement of Understanding.”

The Agreed Facts

The salient facts, which are common cause, are as follows:

a) On 13 June 2017, the plaintiff (acting for the estate) and the defendant signed a Memorandum of Agreement of Understanding (“the Agreement”).

b) The background to the agreement was that the estate was in debt and required funds to settle these debts and meet other obligations.

c) In terms of the agreement, the defendant would advance certain funds to the plaintiff to settle the estate's debts.

d) In consideration for this, the defendant was granted certain rights over the farm. He took occupation of the entire farm in June 2017.

e) The agreement contemplated a future subdivision of the farm and a subsequent sale of one half of the farm to the defendant.

f) The defendant paid significant sums of money to the plaintiff pursuant to the agreement. The plaintiff, in his summons, tenders reimbursement of ZWL$109,000.

g) The plaintiff alleges he has been unable to secure the necessary subdivision permit from the relevant authorities, citing opposition from the Ministry of Mines and Mining Development.

The Dispute and the Issues

The plaintiff’s position is that the agreement, despite its title, was, in substance, an agreement for the sale of a portion of unsubdivided agricultural land. He contends that such an agreement is illegal and void ab initio for want of compliance with section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Act”), which prohibits the sale of any portion of a property without a subdivision permit. On this basis, the plaintiff seeks a declarator that the agreement is null and void, the eviction of the defendant, and payment of occupational damages.

The defendant’s position is that the agreement was not one of sale. He argues it was a legitimate, preliminary agreement in which he advanced funds to the estate and, in return, was granted a right of first refusal to purchase one-half of the farm after the plaintiff had lawfully obtained a subdivision permit. He denies that the agreement is illegal and has filed a counterclaim seeking an order for specific performance, compelling the plaintiff to take all necessary steps to obtain the subdivision permit as contemplated in the agreement.

The issues for determination are therefore:

a) What is the true legal nature of the Memorandum of Agreement of Understanding entered into by the parties? Is it an illegal and void agreement of sale, or a valid preliminary agreement granting a right of first refusal?

b) Flowing from the first issue, is the plaintiff entitled to an order nullifying the agreement and evicting the defendant?

c) Is the defendant entitled to an order for specific performance compelling the plaintiff to apply for the subdivision permit?

Analysis

The Nature of the Agreement

The starting point of the analysis must be the agreement itself. The court’s duty is to ascertain and give effect to the intention of the parties as expressed in the written document. The court in Ashanti Goldfields Zimbabwe Limited v Mdala SC 60-17 @ page 4 of the cyclostyled judgment, held as follows;

“It is an accepted principle of our law that courts are not at liberty to create contracts on behalf of parties, neither can they purport to extend or create obligations, whether mandatory or prohibitory, from contracts that come before them. The role of the court is to interpret the contracts and uphold the intentions of the parties when they entered into their agreements provided always that the agreement meets all the elements of a valid contract”.

The plaintiff argues that the court must look past the form and title of the document to its true substance, suggesting it is a simulated sale designed to circumvent the Act. While courts will indeed not be deceived by the form of a contract, one must find cogent evidence within the agreement itself to conclude that it is a sham.

The Agreement is titled “Memorandum of Agreement of Understanding.” While not decisive, this is the first indication that the parties may not have intended a straightforward sale. The substantive clauses are more revealing. Several clauses go against the plaintiff's interpretation:

a) Preamble: The agreement acknowledges the legal reality upfront, stating: “Understanding that it is a legal requirement for the said farm to be first subdivided prior [to] the sale of any portion thereof to TN [Teddy Ndlovu] or any other person.” This shows a clear awareness of

the prohibition in the Act and an expressed intention to act in accordance with it, not to circumvent it.

b) The Right of First Refusal: Clause 3.1 provides that the defendant shall have “the right to be offered to purchase half of the farm...”. It later refers to the defendant's “right of first option i.e the right to demand that one half of the farm be sold to him as provided for herein.” This is the language of a right of first refusal, or an option. It is an agreement to make a future agreement of sale. It is not the sale itself.

c) Future Agreement of Sale: Clause 3.2 reinforces this by stating: “The parties shall, at such time as the farm will have been subdivided, enter into an agreement of sale...” This clause makes it clear that the sale was an event that would only be concluded in the future, after the condition of subdivision had been met.

The essential elements of a contract of sale are agreement on the thing sold (merx) and the price (pretium). Here, while a price of US$400,000 is mentioned, it is presented as the price for the future sale, not the present one. More importantly, the merx was not defined with certainty. The agreement pertains to “one half of the farm,” but which half? Clause 3.3 states that “TN shall be entitled to use the one half portion of the farm that he will be intending to buy.” This confirms that the specific portion was yet to be identified and delineated through the subdivision process. Without a clearly defined merx, a valid contract of sale could not have been formed on 13 June 2017.

For these reasons, I find that the Agreement is not a contract of sale, simulated or otherwise. It is a multi-faceted agreement sui generis. Its primary components are:

(1) an advance of funds by the defendant to the plaintiff;

(2) the granting of a right of occupation to the defendant over the farm pending subdivision; and

(3) the granting of a right of first refusal to the defendant to purchase a subdivided portion of the farm at a future date. An agreement to grant a right of first refusal for the purchase of land, conditional upon a future subdivision, is not prohibited by section 39 of the Act.

The illegality arises when the sale itself is concluded without a permit, which is not what occurred here.

b. Plaintiff’s Claim

The plaintiff’s entire case is premised on the alleged illegality of the Agreement. Having found that the Agreement is not an illegal sale, the foundation of the plaintiff's claim crumbles. He is not entitled to a declaration that the agreement is null and void, and consequently, the claim for eviction, which is based on the alleged nullity, must also fail. The defendant’s occupation is lawful in terms of the valid and subsisting Agreement. The claim for occupational rent also falls away, as the defendant's right of occupation was part of the consideration for the funds he advanced to the estate.

c. Defendant’s Counterclaim for Specific Performance

The defendant seeks an order compelling the plaintiff to perform his obligations under the agreement, specifically to take all necessary steps to procure the subdivision permit.

The law is clear that specific performance is a primary remedy for breach of contract. A party that has performed its own obligations is entitled to demand performance from the other party. In Minister of Construction and National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S), it was affirmed that the remedy cannot be withheld arbitrarily.

It is common cause that the defendant advanced significant funds to the plaintiff, thereby performing his part of the bargain. The plaintiff’s obligation was to use those funds to service the estate’s debts and to take the necessary steps to have the farm subdivided so that the defendant's right of first refusal could be exercised.

The plaintiff has been evasive about the steps he has taken. When asked for proof of the application for subdivision and its refusal, he declined to provide the particulars. The letters he has produced merely show an objection from a government ministry, not a final refusal from the responsible authority. There is no evidence of what steps, if any, the plaintiff took to address the objection or to pursue the application to its finality. It appears the plaintiff has developed seller’s remorse and is now seeking to use a purported “refusal” as a basis to escape his

contractual obligations. This the court cannot sanction. The plaintiff is contractually bound to take all reasonable and necessary steps to obtain the subdivision permit. He has not demonstrated that he has done so, nor has he shown that performance is impossible. He must be held to his agreement.

Conclusion

In the result, I find that the agreement between the parties is valid and binding. The plaintiff’s claim for a declarator of nullity and eviction is without merit. The defendant, having performed his obligations, is entitled to an order compelling the plaintiff to perform his.

Disposition

Accordingly, it is ordered that:

The Plaintiff’s claim be and is hereby dismissed in its entirety.

The Defendant’s counterclaim be and is hereby granted.

The Plaintiff be and is hereby directed to take all steps necessary, within ninety (90) days of the date of this order, to apply for and diligently prosecute an application for a subdivision permit in respect of Gwizaan Farm, situate in the District of Bubi, for the purpose of subdividing the farm into two portions as contemplated in the Memorandum of Agreement of Understanding between the parties dated 13 June 2017.

The Plaintiff shall pay the costs of suit.

Cheda & Cheda Partners, plaintiff’s legal practitioners

Mutatu & Partners, defendant’s legal practitioners