WHETHER THE IRREVOCABLE MEMORANDUM OF
UNDERSTANDING EXECUTED BY THE PARTIES HAS ANY LEGAL FORCE
In my view, further…, this appeal is easily determinable on
the simple question of whether the alleged “agreement” is invalid for want of
statutory compliance and this is the point I turn to enunciate.
The farm at the centre of this ...
WHETHER THE IRREVOCABLE MEMORANDUM OF
UNDERSTANDING EXECUTED BY THE PARTIES HAS ANY LEGAL FORCE
In my view, further…, this appeal is easily determinable on
the simple question of whether the alleged “agreement” is invalid for want of
statutory compliance and this is the point I turn to enunciate.
The farm at the centre of this dispute falls under the
category of rural land. Such land is administered under the Land
Acquisition Act [Chapter 20:10].
Both parties understood that in order for them to enter
into a valid agreement of sale of the farm, there was need for the appellants
to first approach the relevant authority in order that it could exercise its
statutory right of first refusal to purchase the land. The law prescribes that
a holder of land categorised as rural land cannot sell his or her land to any
other person without having approached the State to exercise its statutory
right of first refusal. If the State is not interested in the land, the
relevant Minister will issue a Certificate of No Present Interest and only then
may a party proceed to enter into an agreement of sale with any other party.
The above legal requirements are enshrined in section 3 of
the Land Acquisition (Disposal of Rural Land) Regulations, S.I.287/99 (“the
Regulations”) which reads in relevant part:
“3. Minister
to be given right of first refusal on sale of rural land
(1) Subject to these regulations, the owner of any rural
land, other than the State, a local authority or a statutory body, shall not
sell the land unless he has offered to sell it to the Minister and –
(a) The Minister has issued him with a certificate of no
present interest; or
(b) The Minister has not responded to the offer within the
ninety-day period specified in subsection (1) of section 5.
(2) An offer in terms of subsection (1) shall be in writing
and shall -
(a) Specify the price which the owner is prepared to accept
for the rural land concerned; and
(b) Describe the nature and extent of the rural land
concerned and any buildings or other improvements on the land; and shall
be accompanied by a copy of the title deed of the land.”…,.
The use of the word “shall” in section 3(1) of the Land
Acquisition (Disposal of Rural Land) Regulations, S.I.287 of 1999 renders it
mandatory for any rural land holder who wishes to sell the land to first offer
the land to the Minister so that the Minister may exercise the right of first
refusal. A seller has no discretion and must comply with the statutory condition.
It is my view that the issue concerning the right of first
refusal vested in the Minister, in relation to the sale of rural land, was
critical in resolving the question that was before the court a quo as to whether the parties had entered into a valid Agreement
of Sale.
Where such contract is proscribed by statute, it is invalid
and non-compliance with the condition invalidates the whole contract. This
principle is well enunciated in X-Trend-A-Home (Pvt) Ltd v
Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (SC) 351 wherein
MCNALLY JA…, quoted with approval the words of LEWIS ACJ in York Estates Ltd v Wareham 1949 SR 197 who remarked as follows:
“As a general rule, a contract or agreement
which is expressly prohibited by statute is illegal and null and void even
when, as here, no declaration of nullity has been added by the statute."
Had the court a quo considered the
provisions of section 3 of the Land Acquisition (Disposal of Rural Land)
Regulations, S.I.287 of 1999, it would have resolved that the “agreement” it
was being enjoined to endorse as valid was an agreement that was proscribed by
law.
Such a finding would have disposed of the
matter.
