Seller successfully reverses property buyer's subd...

Seller successfully reverses property buyer's subdivision as court declares sales agreement void

Nyashadzashe Ndoro

Zim Now Chief Reporter

High Court Judge Justice Tawanda Chitapi has nullified a contentious agreement between two Harare property owners, citing violation of the Regional Town and Country Planning Act.

The agreement, which was entered into on May 19, 2019, related to the cession of rights, title, and interest in a property known as Stand 40295 Belvedere, Harare.

Justice Chitapi found that the agreement was in violation of Section 39 of the Regional Town and Country Planning Act, which prohibits the sale of a subdivision of land before a permit has been approved by the local authority. The court held that the agreement was therefore illegal and unenforceable.

The judge noted that "the law prohibits a sale envisaged therein when it is entered into by any person because the provision states that 'no person shall'... The law does not distinguish whether the person entering into the transaction is the owner, agent or proxy of either the seller or the purchaser."

The court further held that the subdivision permit issued by the City of Harare on August 28, 2020, was also a nullity, as it was issued without the required approval of the local authority.

In his judgement, Justice Chitapi stated, "The agreement between the applicant and the first respondent dated 19 May 2019 of the cession of rights title and interest in the property or part of it called Stand 40295 Belvedere, Harare is declared to be a nullity... The subdivision permits over the property Ref SD/CR/02/20 dated 28 August 2020 which created off Stand 40295 Belvedere stand 41550 is declared to be a nullity."

The applicant, Linda Sahwenje, had sought the cancellation of the agreement, citing that the first respondent, Tinashe Chitemere had applied for and obtained a subdivision permit without her consent or involvement. The first respondent had argued that the applicant had no cause of action, as she had already sold the property to him.

However, the court found that the sale agreement was illegal and that the applicant was entitled to seek a declaration of nullity.

Justice Chitapi noted, "The affected parties as between themselves would be left to obtain relief under different causes of action."

The court also held that there was no need to order costs, as both parties shared equal blame for entering into an illegal agreement.

The judge stated, "In my view, an appropriate order of costs is that there should be no order of costs that arises from consequences and disputes grounded on a nullity."

"The court cannot sanitise a nullity. Inasmuch as a nullity begets a nullity, it would in this matter be anomalous to have the court recognise that nullity which in effect means there is nothing to see or recognise. The matter and its illegal transactions should not be sanitised for purposes of costs. In my view an appropriate order of costs is that there should be no order of costs that arises from consequences and disputes grounded on a nullity," Justice Chitapi further noted." The market rental yields, which are based on unobservable market data. The rental yields are estimated for each Individual property.