KAMOCHA J: The
applicant in this matter seeks an order from this court in the following
terms:-
“It is ordered that:-
(a)
The
agreement of sale between applicant and 1st respondent entered into on
October 15, 2003 be and is declared to be valid and lawful;
(b)
The
agreement of sale between 1st, 2nd and 4th
respondents over the immovable property known as 231 New Luveve, Bulawayo be
and is hereby declared to be null and void thus unenforceable;
(c)
5th
respondent be and is hereby ordered to amend its records so as to reflect that
the rightful owner of 231 New Luveve, Bulawayo is applicant; and
(d)
1st
and 2nd respondents to pay costs of this application.”
The applicant Busi Maphosa and Dylan Kawara signed a
memorandum of agreement of sale of an immovable property known as number 231
New Luveve Township, Bulawayo hereinafter referred to as “the property” on 15
October 2003. Busi Maphosa – the
applicant paid the purchase price in full and was given vacant possession of
the property in terms of the agreement, from 31 December 2003 up to this date. The original owner of the property died in
1983. At the time of the sale Dylan
Kawara advised the applicant that the property he was selling belonged to a
deceased estate and that Mareverwa Smart Mashayamombe had been appointed the
executor of the estate in terms of a will.
The testator was Dylan Kawara's grandfather who bequeathed the property
to his grandson Dylan Kawara.
When the grandfather died on 21 November, 1983 the property
vested in the grandson, Dylan Kawara.
According to The Law of Succession
Through the Cases by Tila Isakow at page 98, in the absence of a contrary
intention in the will, expressly or by necessary implication, a bequest takes
effect on the testator's death, and is unconditional. The heir or legatee may alienate his rights
thereto and he may therefore sell them or they may be attached in execution at
the instance of his creditors unless the will contains some prohibition.
The will of the late Richard Mashayamombe was accepted by the
Master although it did not fully comply with the formalities for the execution
of a will. The Master must have been
satisfied with the document in terms of section 8(5) of the Wills Act [Chapter
6:06]. There was no appeal against the
Master's decision to accept the will.
The court therefore finds that Dylan Kawara was entitled to
sell his rights, and interest in the property.
The next issue to be determined is that of the double sale
since the same property was later sold to Getrude Siwela the 4th
respondent.
The law relating to double sales was long settled and is
repeated almost daily in this court. The
property has not yet been transferred to any of the buyers. In a situation like that the first buyer who
is the first in time is favoured by the law.
The second buyer should look to the seller for damages. There are no special circumstances in this
case why the law should favour Getrude Siwela.
In the result I would grant the application in terms of the
draft.
Messrs Moyo & Nyoni, applicant's legal practitioners
Messrs Cheda & Partners, 4th
respondent's legal practitioners
