NDOU J: This is
classical case of multiple sale of immovable property being stand number 2689 Cowdray Park,
Bulawayo. The 2nd respondent sold this
property to the 1st respondent on 11 April 2002 in terms of a
written agreement of sale. When the 2nd
respondent exhibited some reluctance to honour the said agreement, the 1st
respondent approached this court and obtained an order on 7 August 2003 under
HC 1783/02 against the 2nd respondent for the said property to be
transferred into his name. This order
was granted by this court before the present applicant entered into an
agreement of sale with the 2nd respondent, forming the subject
matter of these proceedings. The 2nd
respondent also sold the same property to one Nqobizitha Nzima.
The
applicant and 2nd respondent only entered into their agreement of
sale on 9 September 2003. The 2nd
respondent did not honour this agreement as well resulting in the applicant
approaching this court in 2004. On 20
February 2004 he obtained a provisional order interdicting the 2nd
and 3rd respondents from selling and transferring the property in
question to any other person pending the finalization of the matter under HC
574/04 (i.e the trial proceedings
wherein the applicant sought the transfer of the said property into his names). Indeed, on 29 March 2004, this court,
oblivious of the earlier
order under HC 1783/02, granted the
order sought by the applicant. On
account of this obliviousness, the court is now faced with two judgments, both
granted by it, compelling the transfer of one property to two different
parties. There has been mention in the
papers filed of record, of other multiple buyers of the same property, and of
one buyer in particular, who is said to be in the process of claiming the
property as well. It is clear that the
property remains registered in the name of the 2nd respondent, the
serial seller, who has not condescended to file any papers in this matter. In both cases, the order was granted on the
grounds that each applicant had bought the property from the 2nd
respondent.
The
applicant, in casu, has now
approached this court for yet another order that the property be transferred to
him. The order that he seeks is simply
that 2nd respondent should take action to effect transfer of the
property to him. This order is sought
against the 1st respondent's prior order obtained under HC
1783/02. The applicant has not sought to
have his initial order in HC 624/04 set aside.
Nor has he sought to have 1st respondent's order in case
number HC 1783/02, se aside. With the
applicant's failure to set aside the two prior judgments this court is functus officio. This court may not re-hear the issue of who
is entitled to transfer of house number 2689 Cowdray
Park, Bulawayo.
On that basis alone the applicant's application is fatally defective,
therefore, the application should be dismissed on this ground alone. If I am wrong on this ground, still the
application should fail on the other ground raised by 1st
respondent, that the issue of the said stand is res judicata. The judgment
or order given by this court under HC 1873/02 rendered it so. Even at the time the applicant instituted the
proceedings in the case numbers adverted to in his affidavit, the matter was
already res judicata. A judgment had already been given by a court
of competent jurisdiction declaring the status of stand at issue, ruling that
the 1st respondent was entitled to transfer. That judgment still stands. That judgment is final. That judgment is binding on the applicant in
the
current case, and on the world in
general. The judgment given by this
court under HC 1783.02 is a judgment in
rem, and therefore binds even parties who were not cited in the
original proceedings. Registrar-General
v Chirwa 1993(1) ZLR 291. A judgment in rem has been defined, inter
alia, as one that:
“Declares, defines or otherwise
determined the status of a person, or of a thing that is to say, the jural
relationship of the person or thing to the world generally.” -
Spencer Bower Res Judicata as quoted in Tshabalala
v Johannesburgh City Council 1962(4)
SA 367.
It
is trite that a final judgment cannot easily be set aside. It is settled that a court will only set
aside its judgment if certain limited circumstances are alleged and
proved. These are error, fraud, discovery
of new documents or crucial evidence and procedural irregularity. The applicant in this case has made a very
casual invitation to the court to set aside the judgment under HC 1783/02. This invitation is in paragraph 9 of the
applicant's heads of argument. He does
not make the submission anywhere else in his papers. Nor does that request appear in his draft
order. In the circumstances there is no
basis laid down upon which this court can set aside the judgment under HC
1873/02. In other words there has been
no formal request for the court to interfere with that judgment. The request, thrown in casually as it is in
the applicant's heads of argument, is not competent. From the foregoing, the application cannot
succeed.
Accordingly,
the application is dismissed with costs.
Dube & Partners,
applicant's legal practitioners
Cheda & Partners,
1st respondent's legal practitioners
Majoko & Majoko, 2nd respondent's legal practitioners
