Judgment No. HB 119/06
Case No. HC 623/05
THE MESSENGER OF COURT, BULAWAYO
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 26 APRIL 2005 AND 9 NOVEMBER 2006
Mr H. Shenjefor the applicant
Ms A Masawifor the respondent
NDOU J: The applicant seeks a provisional order in the following terms:-
“TERMS OF FINAL ORDER SOUGHT”
That you show cause to this Honourable Court, why a final order should not be made in the following terms:
that first and second respondents be and are hereby interdicted from causing the eviction of applicant and all persons claiming the right to occupy house number 71377 Lobengula West, Bulawayo through Sazini Sibindi.
That costs of suit be borne by the first respondent.
INTERIM RELIEF GRANTED
that the first and second respondents be and are hereby ordered to restore vacant and peaceful possession and/or occupation of the premises known as 71377 Lobengula West, Bulawayo to the applicant and all persons claiming such occupation through Sazini Sibindi”
The scenario here is one of double sale. It is evident that on 21 September 2001, one Silitheni Dzvairo sold the disputed property to Clever Mandiya. The property belonged to Dzvairo’s late husband and it was part of deceased’s estate property. She had properly appointed executor. Mandeya in turn sold the property to first respondent. Dzvairo sought to renege from the agreement of sale but this court in Dzvairo v Mandiya HB 56-04; ruled against her. Even after failing in her bid to cancel the said sale agreement, Dzvairo went on to sell the same property to Sazini Sibindi on 18 October 2004 clearly in complete disregard of the determination of this court in HB 56-04, supra.
The applicant, in casu, is a relative to Sazini Sibindi who was placed in the premises by Sibindi. He was in the premises for a brief period. The first respondent and those claiming through him have been staying in the property since 2001 save for the brief period between November 2004 and April 2005 when they were evicted at the behest of Dzvairo. The latter evicted them through an eviction order obtained exparte in Bulawayo magistrates’ court (case 1046/04).
On the return date, the magistrate discharged the order on 24th March 2005. The first respondent’s occupation of the disputed property was restored on
7 April 2005 as a result of the execution of the later order. As the applicant is not party to the agreement between Dzvairo and Sibindi, he is suing in a representative capacity. His affidavit does not so, but this can be implied from the above mentioned order sought: -
“…..interdicted from causing the eviction of the applicant…”
More importantly, however, is that he has not filed a power of attorney or authorisation by Sibindi to act on his behalf. This flaw on its own should result in the dismissal of the application.
However, in the event that I am mistaken, the application has to fail on its merits. In such cases of double sale, it is trite that “he who is first in time has the strongest claim- est tempore potior est jure”
“Mckeurtan Sale of Goods in South Africa” (5th Edition) at page 32; BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd and another 1964 RLR 7(HC); Crundall Brothers (Pvt) Ltd v Lazarus NO and another 1991(2) ZLR 125(S) at 133 C-D; Chimphonda v Rodrigues and others 1997 (2) ZLR 63(H) and Dube v Maguye and others HB 109-06. The first respondent’s sale (through Mandiya-supra) preceded that of the applicants.
Further, Dzvairo, through whom the applicant claims was evicted as a result of court order of the magistrate. This order is valid as it has not been set aside or varied by a superior court, neither is it a competent for me to set it aside or vary it in the proceedings. – Culverwell v Beira 1992(4) SA 490(W) and Macheka v Moyo HB 78-03.
For the foregoing the application is devoid of any merit.
I accordingly, dismiss the application with costs.
Shenje and Company,applicants’ legal practitioners
Masawi and Associates, respondents’ legal practitioners