MUKUNDWI v TERERA & OTHERS (78 of 2026) [2026] ZWHHC 40 (28 January 2026)

5 HH 78-26 HCH 3433/24 MARTHA MUKUNDWI versus MISHECH STEPHEN TERERA and JUNIAH TERERA and THE REGISTRAR OF DEEDS N.O. HIGH COURT OF ZIMBABWE **MANYANGADZE J** HARARE, 17 November 2025 & 28 January 2026 **Summons matter: Special case** _T.S. Manjengwa_ , for the plaintiff _T. A. Musungwa_ , for the defendants MANYANGADZE J: _INTRODUCTION_ The plaintiff issued summons against the first and second defendants (“the defendants”) seeking the following relief: “(a) An order directing the First and Second Defendant to appoint a land developer within five (5) days of the order and completion of the development within sixty (60) days of the order being granted, and thereafter obtain a Compliance Certificate, or failing which, the Plaintiffs are permitted to appoint a land developer on behalf of the First and Second Defendants, and at the First and Second Defendant's own cost; (b) An order directing the First and Second Defendant to pass transfer of the immovable property namely, Lot 15 of Kopje Allen of Twentydales Estate measuring 1.6568 hectares to the Plaintiff within ten (10) days of completion of the development. (c) An order that should the First and Second Defendants fail to proceed in terms of paragraph (a), the Sheriff or his authorised Deputy be and is hereby authorised and directed to sign all necessary documents to effect transfer of the said immovable property to the purchaser and to do all things necessary to effect such transfer at the First Defendant's cost including seizure of all documents relating to the property which are in the First Defendant 'or its legal practitioner's possession. (d) An order directing the Second Defendant to take all necessary steps to pass transfer of the said immovable property to the Plaintiffs. (e) Costs of suit” The plaintiff purchased an immovable property from the defendants in terms of an agreement of sale they entered into on 7 July 2020. The property is described as Lot 15 of Kopje Allen of Twentydales Estate, measuring 1, 6568 hectares (“the property”). The plaintiff paid the full purchase price of USD 57 988, 00, as per the payment terms stipulated in the agreement of sale. Transfer of title to the property could only be effected after the defendants fulfilled the conditions in the subdivision permit granted by the local authority. The conditions related to the serving of the land constituting the property. The defendants failed to fulfil the conditions in the permit, leading to the instant suit. In their plea, the defendants averred that the permit conditions were not conditions precedent to transfer of title to the property, as alleged by the plaintiff. It is the plaintiff's failure to pay conveyancing fees that stalled progress in the transfer process. After some negotiations, the parties agreed on all issues save for the payment of endowment fees to the local authority. They continued haggling over who, between the purchaser and the sellers, should be liable for the payment of endowment fees. The parties agreed to refer the matter to court as a special case, for determination of the question on liability for endowment fees. They drew up a Deed of Settlement which was filed on 5 August 2025. The Deed of Settlement incorporated a Statement of Agreed Facts, on which the special case was based. _PLAINTIFF’S ARGUMENT_ The plaintiff’s position is set out as follows, in the statement of agreed facts: 1. In terms of Section 41(1) of the Regional, Town and Country Planning Act [_Chapter 29:12_], endowment fees are payable to the Local Authority by the applicant prior to the transfer of any subdivided portions. 2. Additionally, in terms of Condition 8 of Subdivision Permit Mash East 1/2017, the applicant is expressly required to pay endowment fees to the Local Authority. 3. The applicants, for purposes of both the Act and the Permit, are the First and Second Defendants, as they are the holders of the subdivision permit. 4. Accordingly, it is the First and Second Defendants who bear the legal obligation to pay the endowment fees. 5. Moreover, the Certificate of Compliance will be issued in the names of the First and Second Defendants, confirming their position as applicants. _DEFENDANTS’ ARGUMENT_ In countering the plaintiff’s averments, the defendants contend as follows: 1. That the explicit terms of section 41 (1) of the Regional Town and Country Planning Act [_Chapter 29:12_] refer to the owner of the property. 2. That in terms of this section the owner of the property is the one whose name the subdivided property is transferred to. 3. That the "Owner "is specifically defined in the subdivision permit as "The person in whose favour and of the stands are subsequently transferred to by the Registrar of Deeds. 4. That the Definition within the subdivision permit as read with section 41 (1) of the Regional and Town Country Planning Act [_Chapter 29:12_] responsibility as to the payment of endowment fees on the owner of the property in this case the Plaintiff. 5. Consequently, it is the Plaintiffs' who are responsible for the payment of endowment fees. _THE LAW_ This matter turns on an interpretation of the agreement of sale, the subdivision permit and the Regional, Town and Country Planning Act [_Chapter 29:12_]. (“the Act”) All the parties agree that the agreement of sale is silent on the question of who is liable for the payment of endowment fees. We must therefore look to the provisions of the Act and the conditions stipulated in the subdivision permit for a resolution of this question. Section 41 (1) of the Act reads as follows: “(1) A permit authorizing the subdivision of any property may, subject to this section, include conditions requiring the owner of the property- (a) to set aside land for road purposes; and (b) to do any one of the following- (i) to set aside for public purposes the prescribed percentage of the land covered by subdivisions; or (ii) to pay to the appropriate authority the prescribed percentage of _the value of each subdivision_ , excluding the value of any improvements on the subdivision, at the date of its disposal; (underlining added for emphasis) (iii)…………..” This may be viewed as the general provision in the statute governing the issuance of subdivision permits by local authorities. Section 41 (1) (b) (ii) is the one that specifically provides for the payment of endowment fees, which are described as a prescribed percentage of the value of each subdivision created under the permit. It places the responsibility for payment of such fees on the owner of the property. This provision must obviously be read with the subdivision permit in question, in this case Subdivision Permit No. Mash East 1/2017. It sets out the conditions on which the permit was granted. The relevant portion is condition 8, which reads: "Condition 8: Seven per centum (7%) of _proceeds from the sale of_ Lots 2-18 of the Remainder of Kopje Alleen of Twentydales Estate and the Remainder of Kopje Alleen of Twentydales Estate excluding the value of any improvement at the dale of disposal shall be paid to the Local Authority as endowment." (underlining added for emphasis). The cardinal rule in the interpretation of statutes is that words in the statute must be given their ordinary grammatical meaning, unless this would lead to an absurdity. This point has been underscored in numerous cases. See _Chegutu Municipality_ v _Manyora_ 1996 (1) ZLR 262 at p264D-E (S),_Madoda_ v _Tanganda Tea Company Ltd_ 1999 (1) ZLR 374,_ZIMRA & Anor _v _Marowa Diamonds (Pvt) Ltd_ 2009 (2) ZLR 213 (S),_Endeavour Foundation & Anor _v _Commissioner of_ Taxes 1995 (1) ZLR (S) at p 356 F-G. The often-quoted authority on this approach is the case of _Chegutu Municipality_ v _Manyora_ 1996 (1) ZLR 262, _supra._ mcnally JA stated, at p 264 D-E: "There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further." _APPLICATION OF THE LAW_ In my view, the statute contains the broad and general provisions on the requirement for the payment of endowment fees by the owner of land. Ownership embodies rights that pass from one person to another. As to when and how these rights are passed from one person or entity to another, depends on the nature of the transaction and the conditions governing it. In _casu_ , the Act ought to be read with the permit. The permit enables us to identify the owner for purposes of the endowment fees. In this regard, the pertinent phrase is “ _proceeds from the sale of_ ”. It seems to me the ordinary grammatical meaning of proceeds is the money realised from the sale of goods or services. Thus, if an asset like a house or stand is disposed of by sale, the amount realised from such a sale constitutes the proceeds thereof. The meaning is so plain there is no need to be technical about it. In this regard, I am persuaded by the submissions in paragraphs 11-14 of the plaintiffs’ heads of argument, wherein is stated: “11. Reference is made to the definition provided by the **American Institute of Certified Public Accountants in** **Accounting Terminology Bulletin No. 2 (1955)** , which offers guidance on commonly used financial terms, including "proceeds." 12\. According to the Bulletin, proceeds is defined as follows: "Proceeds is a very general term used to designate the total amount realized or received in any transaction, whether it be a sale, an issue of stock, the collection of receivables, or the borrowing of money." 13\. This interpretation is further supported by the case of _**Turner**_**v** _**Bridgett (1881) 8 Q.B.D. 392**_ , where "proceeds" was similarly defined as the amount realised from a sale. 14\. Applying these definitions in casu, it is evident that the obligation to pay the endowment rests with the party who realises the proceeds from the sale, namely the 1st and 2nd Defendants. This conclusion is not only legally sound but also accords with commercial logic. The interpretation of Condition 8 requires neither sophistry nor strained construction; its meaning is plain and straightforward and grounded in common sense, not rocket science.” There is no gainsaying the fact that it is the defendants who realised the proceeds from the sale of the property. They were thus the owners at the time of the sale. Ownership is yet to pass to the plaintiffs. In the case of _Makoni Rural District Council_ v _Diagonal Investments (Pvt) Ltd & Anor_ HH 241/15, this court was seized with the question of what constitutes endowment fees where payment has not been made in full. The remarks by mathonsi J are pertinent, insofar as they link the owner of the land being disposed of to the receipt of the proceeds of the sale. The learned judge stated, at p 5-6: “ _The question which arises in respect of the 60 stands that have been sold for which payment is being made in instalments is what is the date of disposal because upon disposal of the subdivision, payment of endowment is triggered? I agree that interpretation of that phrase in the section admits of no sophistry and should not be complicated at all. Rocket science is not required to untangle that expression.___In my view disposal of the subdivision occurs when the land owner has sold the land and has been paid the purchase price.___Such an interpretation resonates with all the other provisions of s 41 which point to the fact that an endowment should be a percentage of the value. The method of determining the value is clearly set out._ _The moment a purchase price is agreed, there is a value to work with. There would be no need for the parties to wait for the value to be fixed by the Registrar of Deeds for purposes of duty when the purchase price points to a value. In any event for transfer purposes, the Registrar of Deed’s will determine stamp duty payable based on the purchase price. It is only where there is no purchase price, for instance where the property has been donated, that the Registrar would assess a value for stamp duty purposes. In respect of the stands which have been sold in instalments that does not arise at all._ _I however have to be innovative in deciding what has to be paid as endowment where not all the purchase price has been paid.___There is no doubt in my mind that endowment must be set aside from what the land owner has received.___In other words the land owner and the appropriate authority share what has been received not what potentially will be received, with the latter being entitled to the percentage of whatever instalment is received in terms of condition 7. The landowner cannot be expected to fork out the percentage endowment from its pocket but from that of the purchase price it receives.”_ (underlining added for emphasis) Clearly, endowment fees are levied from the proceeds of the sale. Thus, they are levied from the seller. It is the seller, not the buyer, who receives such proceeds. In _casu_ , the defendants want the buyer to pay endowment fees, when it is the defendants who have received proceeds of the sale. That is a clear violation of condition 8 of the Subdivision Permit. _DISPOSITION_ In the circumstances, it is my considered view that the liability for the payment of endowment fees lies with the defendants. As the other conditions are not being disputed, the plaintiff is therefore entitled to the relief she is seeking. The relief shall be in terms of the parties’ deed of settlement filed of record, save for the clause on endowment fees, which shall be as per the court’s determination. **In the result, it is ordered that** : 1. The first and second defendants shall, through their developer, Earthlygate Precast and Civil Contractors, carry out all the works required to satisfy Condition 4 and 5 of Subdivision Permit Number Mash East 1/2027 and secure the Certificate of Compliance to be issued by the Local Authority within (6) months of signature of this Deed. 2. The first and second defendants shall, within seven (7) days of issue of a certificate of compliance, make payment of the amount assessed by the Local Authority as the endowment due to it for Lot 15 of Kopje Alleen of the Twentydales Estate in terms of Condition 8 of the Subdivision Permit No. Mash East 1/2017. 3. The first and second defendants shall within seven (7) days of issue of the Certificate of Compliance by the Local Authority sign all papers necessary to enable the transfer of Lot 15 of Kopje Alleen of the Twentydales Estate to the plaintiff by Wintertons Legal Practitioners. 4. In the event that the first and second defendants fail to secure the certificate of compliance in terms of paragraph 1, or to make payment in terms of paragraph 2 or to sign the necessary documents in terms of paragraph 3, the plaintiff is entitled to approach this court by way of a chamber application, on notice to the defendants, for the following order: “The Sheriff be and is hereby authorised and directed to sign all necessary documents to effect transfer of the said immoveable property namely Lot 15 of Kopje Alleen of the Twentydales Estate to the purchaser and to do all things necessary to effect transfer at the first and second defendants’ cost (save for transfer costs) including, payment of all disbursements necessary to satisfy conditions 4, 5, 8 and 9 of the Subdivision Permit No Mash East 1/2017 and seizure of all documents which are in the first defendant's or its legal practitioners' possession.” 5. The first and second defendants shall pay the plaintiff’s costs on a legal practitioner and client scale. **MANYANGADZE J: agrees ……………………………………** _Wintertons_ , plaintiff’s legal practitioners _Chirimuuta & Associates_, first and second defendants’ legal practitioners