The right of first refusal in Zimbabwe

The right of first refusal, or right of pre-emption is common in lease agreements between landlords and tenants in Zimbabwe. Put differently the right of first refusal in Zimbabwe is recognized.

The right of first refusal is a ‘contract’ or a ‘clause’ in a tenancy agreement in terms of which the landlord/lessor offers to the tenant/lessee the first right to purchase the property. In Makoshori v Nyamushamba & Another SC 9 – 06, the Supreme Court noted that:

‘The essence of the right of first refusal or the right of pre-emption is that the grantor of such a right not to sale the object of the right to a third party unless the tenant/grantee has been given an opportunity to purchase the object of the right and has not offered to do so.’

The right of pre-emption in Zimbabwe

The right of pre-emption is the same as the right of option, reserved right and the right of first refusal. The right of pre-emption in Zimbabwe arises where there is an agreement between a landlord (grantor) and the tenant (grantee) of the rights, in terms of which the grantor undertakes the before selling their immovable property to a third party, the grantor will give the grantee the first option, or put differently, the first opportunity to purchase the immovable property at a price which is acceptable to the grantor.

The right of pre-emption must be expressly stated in an agreement between the grantor and the grantee. It cannot be implied. The right of pre-emption cannot be enforced against a third party who purchases the immovable property without prior knowledge of the right of pre-emption. It is essential, that a party that wishes to enforce the right of pre-emption in Zimbabwe must prove its existence on a balance of probabilities.