STANLEY SIBANDA

Versus

MAXWELL SININI SIBANDA

And

CITY OF BULAWAYO

And

DEPUTY SHERIFF

And

PEDIA MKWANANZI

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 7 FEBRUARY 2009

G Nyoni for applicant

Ms N Dube for 1^st and 4^th respondents

Opposed Application

NDOU J: The applicant seeks the confirmation of the provisional order granted by this court [on 29 May 2006] in the following terms:

“1. 1^st respondent be and is hereby ordered to transfer house [stand] number 24628 Pumula South, Bulawayo within 10 days of this order to the name of the applicant.

2. Should 1^st respondent fail to act as ordered in (1) above, the 3^rd respondent be and is hereby mandated to sign all such papers that may need be signed at 2^nd respondent’s office to facilitate the transfer of ownership of house number 24628 Pumula South, Bulawayo from 1^st respondent’s name to that of applicant …”

The salient facts of the matter are the following. On 8 February 2005 applicant approached 1^st respondent in need of a residential stand, though he did not have a housing form i.e. he was not on Housing Waiting List. The 1^st respondent is a building constructor. The applicant was sold stand number 24628 Pumula South, Bulawayo for $13 000 000,00. The stand was acquired using the 1^st respondent’s form. The applicant paid the 1^st respondent to construct a dwelling house thereat for which he charged $18 000 000,00 which he duly paid. The applicant paid for the registration of the plan. Further, the applicant covered the costs of labour and purchased the necessary building materials. At a later stage, the 1^st respondent disappeared from the construction site with no trace. One, Mr K Sibanda took over where the 1^st respondent had left and did the roofing. The flooring and plastering remained unattended at the time of the hearing of this application. On 18 April 2006, the 1^st respondent sold he stand, subject matter of this application, to the 4^th respondent. This state of affairs came to the applicant’s attention when a person tried to plaster the house and tube it for electrification purposes at the behest of the 4^th respondent. At the offices of the 2^nd respondent, the 1^st respondent, had applied for local authority’s consent to sale to the 4^th respondent. The applicant reported the matter to the police and also instituted these proceedings.

It is clear that what we have here is a double sale situation. In B P Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd 1964 RLR 7 it was stated:

“In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be an invariable rule, but I agree with the view expressed by Professor McKerron that save ‘special circumstances’ the first purchaser is to be preferred.”

The position was restated in Guga v Moyo 2000(2) ZLR 458 (S). The Supreme Court held that where a seller fraudulently sells immovable property to two purchasers, the court has to decide between two innocent purchasers. When transfer has not been passed to either party, the basic rule of double sales is that the first purchaser should succeed in the absence of special circumstances. The first purchaser is treated as having the stronger claim and the second purchaser is left with a claim for damages against the seller. In casu, the applicant was the first purchaser and the maxim qui prior est tempore potios ets jure applies. This is so because the applicant paid the full purchase price for the stand. He paid the 1^st respondent in full the costs for building the dwelling on the stand. This was done up to roof level. The applicant in fact bought the building materials. The 4^th respondent only emerged at plastering, plumbing and electrification stage. Barros & Anor v Chimphonda 1999(1) ZLR 58 (S). The balance of convenience favour the applicant. The 4^th respondent bore the burden of establishing a preponderance of equities in her favour. She failed to do so. Even then, she did not do much before she was stopped by these proceedings. The applicant acted in good faith. The City of Bulawayo, which is the 2^nd respondent in these proceedings does not oppose the transfer of the stand from the 1^st respondent to the applicant, notwithstanding the fact that the latter was not on the Waiting List at the time of agreement – Dube v Khumalo 1986(2) ZLR 103 (SC); Gawu v Gwangwa & Ors HH-137-95 and Mapendauswa v Munyika & Anor HB-110-03.

It follows that the ruling should favour the applicant because of the foregoing.

Accordingly, the provisional order granted by this court on 29 May 2006 be and is hereby confirmed in terms of the above draft with costs on the ordinary scale.

Majoko & Majoko, applicant’s legal practitioners

Marondedze & Partners, 1^st and 4^th respondent’s legal practitioners