NDOU J: The
applicant seeks the confirmation of the provisional order granted by this court
[on 29 May 2006] in the following terms:
"1. 1st
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 1st
respondent fail to act as ordered in (1) above, the 3rd respondent
be and is hereby mandated to sign all such papers that may need be signed at 2nd
respondent's office to facilitate the transfer of ownership of house number
24628 Pumula South, Bulawayo from 1st respondent's name to that of
applicant ."
The salient facts of the matter are
the following. On 8 February 2005
applicant approached 1st 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 1st 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 1st
respondent's form. The applicant paid
the 1st 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 1st
respondent disappeared from the construction site with no trace. One, Mr K Sibanda took over where the 1st
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 1st respondent sold he stand, subject matter of this
application, to the 4th 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 4th respondent.
At the offices of the 2nd respondent, the 1st
respondent, had applied for local authority's consent to sale to the 4th
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 1st 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 4th 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 4th
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 2nd respondent in these proceedings does
not oppose the transfer of the stand from the 1st 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, 1st and 4th respondent's
legal practitioners