KAMOCHA J: The
applicant brought two applications to this court which the court consolidated
and heard at one sitting. The first
application was for joinder and condonation for the late filing of an
application for rescission. The terms of
the order being sought were these:
“It is ordered that:-
1.
Applicant
be and is hereby joined as the 5th respondent under case no. HC
1527/09;
2.
Applicant
be and is hereby authorized to apply for rescission of judgment under case
number HC 1527/09 out of time; and
3.
The first respondent shall pay the costs of
this suit only if she opposes this action.”
In the second application the order he sought was thus:-
“It is ordered that:-
1.
The
judgment granted in first respondent's favour under case number HC 1527/09 be
and is hereby set aside;
2.
Applicant
be and is hereby joined as the 5th respondent therein and is hereby
given leave to file his notice of opposition; and
3.
Each
party shall bear his or her own costs.”
As far as the application relating to joinder is concerned
the applicant did not state in terms of what rule he wanted to be joined to a
matter which has already been finalized.
He sought the rescission of a judgment to which he was not a party. The
only way he could have done so was in terms of the provisions of order 49 rule
449(1)(a) which provides:-
“(1) The court or a
judge may, in addition to any other power it or he may have, mero motu or upon the application of any
party affected, correct, rescind, or vary any judgment or order –
(a)
That
was erroneously sought or erroneously granted in the absence of any party
affected thereby;
(b)
…
(c)
…”
The applicant has an interest in the matter as will be seen
from the details below. The applicant
paid R24 000 for stand number 6107 Emganwini Township, Bulawayo and had started
construction up to slab level. He
therefore had a substantial interest in the matter. He should have been cited. In the result I would mero motu entertain his application for rescission to ascertain
whether or not it has any merit.
The facts giving rise to these
proceedings are briefly these. On 2 July
2009 the third respondent Maqhawe Mathe, who was being represented by Miss
Vaina Moyo entered into a memorandum of agreement of sale of stand number 263
Emganwini Township in Bulawayo with Stella Matongo. The property was developed. Its purchase price was R25 000 which was paid
on signing the agreement.
The property, however, did not
belong to Maqhawe Mathe – “Maqhawe”. It
belonged to one of his workmates. Stella
Matongo – “Stella” discovered that the property did not belong to Maqhawe three
weeks after she had paid for it. That
was during the same month that Maqhawe had purported to sell the property.
The following month id est August 2009 Maqhawe decided to
offer her his own undeveloped stand number 6107 Emganwini Township, Bulawayo
for the price he had received in relation to the stand which belonged to his
workmate.
Stella accepted the offer thereby
completing the verbal agreement to purchase stand number 6107 Emganwini
Township, Bulawayo. Trouble started when
she sought to have the property transferred into her name as Maqhawe would not
co-operate. He refused to sign relevant
documents to effect transfer into Stella's names.
While that was happening Maqhawe was
busy looking for another buyer for the same property. On 25 September 2009 the applicant fell
victim to Maqhawe's fraudulent activities.
He entered into an agreement of sale of the same stand number 6107 for
R24 000 paid in cash. He was given
vacant possession of the stand on the next day 26 September 2009.
The applicant started developing the
property. He had started constructing a
dwelling house up to slab level. Stella,
on the other hand has had the stand transferred into her names. She purchased the stand in August 2009 while
applicant did so the following month – September 2009. She is the first purchaser in a double
sale. She is a holder of a real right.
The applicant should look to Maqhawe
for damages.
Applicant contended that since he
had effected some improvement to the property the balance of convenience was
tilted in his favour. He has started
construction up to slab level. He,
however, is not without a remedy. Stella
has indicated her willingness to refund him for the slab that he has put up.
In as far as the application for
rescission is concerned the applicant has no bona fide defence. He was a second buyer in double sale of a
property which has since been transferred into the names of the first buyer. His prospects of success on the merits are
non-existent. In the result, his
application for rescission fails.
Consequently, I would issue the following order.
It is hereby ordered that the
application for rescission, which this court allowed him to prosecute, be and
is hereby dismissed with costs.
Lazarus & Sarif, applicant's legal practitioners
Bulawayo Legal Project Centre,
first respondent's legal practitioners
