NDOU J: In 2004, the
parties entered into an agreement of sale in terms of which the respondent
purported to sell to the applicant a "proposed subdivision" of piece of land
called Lancashire 388, in the District of Chivhu, represented and described in
diagram S G number 1769/74. This piece
of land measured 3 036.555 hectares and is registered in the name of the
late Bernard Mudzviti Muringisi, the respondent's father. The respondent was duly appointed executor of
the late's estate on 22 April 2002 by the Master.
In short, the respondent purported
to sell the applicant only part of the piece of land, i.e. 100 hectares, for an
agreed price of $27 million. In other words what was being sold was a
"subdivision". There is factual dispute
on whether the parties agreed to increase the subdivision to 147 hectares for
$60 million. The applicant paid $28
million. The respondent demanded the
balance of $32 million which the applicant failed or neglected to pay. The respondent considered this as
constituting a breach of contract and purported to cancel the agreement
resulting in the present application. I
am required to determine three points in limine raised by the respondent
before hearing argument on the merits.
The issues are basically first, whether respondent, as executor of the
estate, had the necessary authorisation to sell the property [or subdivide the
land and sell part thereof]. Second,
whether the piece of land was properly subdivided in terms of the law. Third, whether the sale was a nullity on account
of the failure to obtain a certificate of "No present interest" from the
appropriate Government authorities. It
is common cause or it is beyond dispute that the sale was not authorised by the
Master of the High Court. The issue
really is the effect of such non-authorisation by Master on the legality of the
agreement. On the second issue it is
also common cause that the respondent did not obtain a subdivision permit from
the local authority. Neither did he
obtain approval of the subdivision by the Physical Planning authority. The issue is the legal effect of such
non-authorisation. I now propose to
consider these three points in turn.
Absence of Master's authority
In terms of section 120 of
Administration of Estates Act [Chapter
6:01], the approval of the Master of the High Court is required for such
agreement of sale of an immovable asset of the estate. This is a condition precedent which suspended
the operation of all obligations flowing from the agreement until the approval
of the Master. The contract was biding
immediately upon its conclusion but what it suspended by the provisions of
section 120 is the resultant obligation or its exigible content - Odendaal
Trust Municipality v New Nigel Estate Gold Mining Co Ltd 1948 (2) SA
656 (O) and Sithole v Khumalo & Ors HB-28-08. In the absence of such Master's approval, all
the obligations flowing from the agreement are cancelled as the primary
obligation is the enforceability of the sale itself - Ncube & Anor v
Wiley & Anor 1985 (2) ZLR 69 (HC) and Scoff & Anor v Poupard
& Anor 1971 (2) SA 373 (AD).
Absence of the Master's approval is fatal to the enforcement of the
agreement of sale.
Absence of subdivision permit
It is common cause that the land in
question, i.e. Lancashire 388 is described as a single piece of land in the
Deed of Grant 6438/96 in the Deeds Registry (Section 7 of the Rural Land Act [Chapter 20:18]).
In the circumstances, section 8 of
the Rural Land Act, supra, applies in this case. Section 8 provides:
"8. Lease
or alienation of land
Land may be leased or alienated to
a single individual or to a single corporate body but not to two or more
persons jointly, without the consent of the appropriate Minister in writing".
It is worth noting that section 8 is
under Part III whose heading is: "OCCUPATION OF LAND BY PERSON
OTHER THAN OWNER NOT INVOLVING SUBDIVISION". It is common cause that the land in this case
was not subdivided. In the
circumstances, its lease or alienation has to be with the written consent of
the appropriate Minister. No such
consent was obtained. This sale is
prohibited by section 8 of Rural Land Act and is therefore unlawful. It was tainted with illegality. The par delictum rule applies. This is
not a case where the par delictum rule should be relaxed. Alienation of land is strictly controlled to
comply vitiates the contract - Matsika v Jumvea Zimbabwe Ltd &
Anor HH-9-03 and Mikesome Investments (Pvt) Ltd v Sikocks
Investments (Pvt) Ltd HH-107-03. On
this factor alone the application should equally fail.
In view of the above findings, I do
not think it is necessary to consider the third point raised. The applicant cannot be granted specific
performance arising from such an illegal agreement. The only avenue open for him is to sue for
damages by action proceedings.
Accordingly, the two points in
limine are ruled in favour of the respondent.
I, therefore, dismiss the
application with costs.
Samp Mlaudzi & Partners, applicant's legal practitioners