Judgment No. HB 92/2004
Case No. HC 169/03
EMILY LETISIA RUNGANGA
Versus
BARBARA LUNGA (in her capacity as the Executor
Dative of the estate late Phineas Tiwandire)
And
MOSES DLOMO
And
THE MASTER OF THE HIGH COURT
And
REGISTRAR OF DEEDS
IN THE HIGH COURT OF ZIMBABWE
NDOU J
BULAWAYO 28 NOVEMBER 2003 & 24 JUNE 2004
E E Marondedzefor the applicant
Mrs N Moyofor the second respondent
Opposed Application
NDOU J: The applicant entered into an agreement of sale with the first respondent, the Executor Dative of the estate late Phineas Tiwandire in terms of which the former purchased a certain piece of land in extent two hundred (200) square metres being stand 15906 Nkulumane of stand 12600 Nkulumane Township situate in the District of Bulawayo held under Deed of Transfer number 1328/97. The purchase price was $700 000,00. The applicant proceeded to apply for a mortgage of $525 000,00 from Beverley Building Society and she paid the balance of $165 000,00 in two instalments on 20 March and 4 April 2002 to the first respondent, with the rest being paid to Integrated Properties, who were first respondent’s estate agents in this sale. The applicant’s mortgage bond loan application was accepted by Beverley
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Building Society. The documents of transfer were prepared on the instructions of first respondent. In fact on 12 July 2002 the first respondent signed a Power of Attorney to empower the conveyancers to proceed with the said transfer. Everything was moving smoothly until August 2002 when the first respondent sought to cancel the said agreement. As a result of communication between the applicant’s legal practitioners and those representing the first respondent, the matter was eventually amicably resolved, with the first respondent being advised to allow the transfer to proceed. As a result of this the conveyancing documents were lodged with the Registrar of Deeds, fourth respondent on 23 October 2002. The Registrar of Deeds advised the conveyancers to lodge an affidavit in terms of section 73 of the Deed Registry Act [Chapter 20:05], which draft affidavit was prepared. When this draft affidavit was presented to the first respondent, she refused to sign it, on the basis that she had been served with a court application restraining her from transferring this property to the applicant’s name. The interdict was served on her under case number HC 2717/02. It is clear that the first respondent proceeded in August 2002, long after her agreement with the applicant, to sell the same property to the second respondent. First respondent also went further to give vacant possession of the said property to the second respondent. In these proceedings the applicant seeks an order to compel transfer to her name.
The second respondent opposed the application on the basis that he purchased the same property without knowledge that it had been sold to the applicant. He avers that he is an innocent third party purchaser. It is clear that we have a double sale situation here.
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It is clear that both purchasers are innocent. On the question of equity and balance of convenience both parties made submissions. On the one hand, the applicant submited that agreement of sale (between her and the first respondent) was executed on 9 January 2002. The said agreement and in particular its clause (1) pre-conditioned the sale on the grant of a mortgage bond by Beverley Building Society. This condition was fulfilled when Beverley Building Society granted a bond to the applicant on 20 February 2002. The said bond was granted on 20 February 2002, which was before the deadline in agreement, being 28 February 2002. The second respondent on the other hand, argued that he has already paid $1 800 000,00 towards the purchase of the property and has effected improvement to the tune of $450 000,00. The outline is so thin and bare that it fails to afford this court a proper and full outline of circumstances which would justify a decision that equity demands he, rather than the applicant, receive transfer of the disputed property. He failed to explain when exactly he entered into his agreement of sale with the first respondent. This explanation is necessary for this court to determine whether the latter sale was fraudulently executed or whether it was on account of an innocent mistake on the part of the first respondent who might have thought that the sale with applicant had been validly cancelled. This court was not informed as to when and to whom the sum of $1 800 000,00 was paid. There is no explanation where the $1 800 000 is. The basis of the second respondent’s opposition to the application is not very clear. From the second respondent’s affidavit it can be discerned that he accepts that the applicant’s agreement of sale preceded his. It seems to me that the second respondent is not opposing the application in its totality but parts thereof. He said –
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“2. … I also purchased the same house without knowledge that it had been sold to applicant. I was short changed also and there is no need for applicant to seek to penalise me in her application.
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That I believe applicant should seek to protect her rights and interests in this matter without necessarily seeking to penalise me, we are in the same boat so why does she want me to suffer when I am also an innocent 3rd party? Applicant should not seek an order for costs against me, I am also caught in the cross-fire so why should I pay her costs in a situation I did not create? Also, whilst I have no problem with applicant’s case against the 1st respondent I object to the ejectment clause that applicant seeks in her order. I should certainly be given reasonable notice to vacate the place after the High Court has made a determination of this case, for instance 3 months from the date the order is granted. Surely I have suffered even greater harm because I paid for the house in cash unlike applicant who is yet to pay.
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That is my submission that I be given time to vacate upon the determination of the case …”
In Crundall Brother (Pvt) Ltd v Lazarus NO & Anor 1991(2) ZLR 125 (SC) at 133C-D the full bench of the Supreme Court said-
“The real issue is whether in a case of double sale where the second purchaser takes transfer with notice of the first purchaser’s rights, the court must order specific performance in favour of the first purchaser or whether it has a discretion, or whether it is limited to an award of damages. The two extreme cases are clear enough. When the second purchaser is entirely ignorant of the claims of the first purchaser, and takes transfer in good faith and for value, his real right cannot be disturbed. Per contra, when the second purchaser knowingly and with intent to defraud the purchaser takes transfer, his real right can and normally will be overturned subject to considerations of practicality.”
I have already pointed out that the second respondent did not give details about his agreement of sale with the first respondent. He made reference to an order to this court that he obtained against the first respondent. I made reference to this file HC 2717/02 in order to have a clear picture. I believe I can competently do so. I am guided by what McNALLY JA said in this regard in Mhungu v Mtindi 1986(2) ZLR 171 (SC) at 173A-B-
“It seems clear from the judgment in which the learned judge a quo granted summary judgment that he made reference to the papers in case number HC
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3406-84. In so ding he was undoubtedly right. In general the court is always entitled to make reference to its own records and proceedings and to take note of their contents-
Halsbury 4 Ed Vol 17 paragraph 102; Boyce NO v Bloem & Ors 1960(3) SA 855 (T); Shell Zimbabwe (Pvt) Ltd vWebb 1981 ZLR 498 (HS) at 503-4 (this case was upset on appeal but not on this point). The position is a fortiori when the defence involves a reference to the previous proceedings, as this one does.”
On perusal of HC 2717/02 it is now clear that agreement of sale between the first and second respondents was in fact executed on 27 August 2002. The second respondent obtained an interim interdict against, inter alia, the first and fourth respondent on 15 November 2002. In his founding affidavit in HC 2717/02 he avers that he was aware of the claim by a woman, presumably the applicant in casu. The second respondent has not yet taken transfer. The primary right of the applicant, as a wronged purchaser, is to the remedy of specific performance. B P Southern Africa (Pty) Ltd v Desden Properties Ltd & Anor 1964 RLR 7 (GD) at 11H-I and Lindsay v Matthews & Anor 1972(1) RLR 186 (GD). Professor Joubert in General Principles of the Law of Contract at page 224 said-
“… in English law the doctrine of the common law is that the creditor is only entitled to damages, but that in equity he can be granted a decree of specific performance, if there is some equitable reason for doing so, whereas under Roman- Dutch principles he has a right to specific performance unless there is some equitable reason disqualifying him from obtaining such relief.”
As I have highlighted above the second respondent does not seem to say much against the specific performance sought by the applicant. He said a lot about costs and being given a fair period of time to vacate. He has not shown special circumstances which convince me that the remedy of specific performance is not appropriate in this case.
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In light of the all foregoing reasons I conclude that the second respondent has not discharged the onus of showing that this is not a case in which specific performance should be ordered. The balance of equities favour the granting of the application.
Accordingly, I order that-
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The first respondent be and is hereby ordered to sign all documents of transfer, in order to effect transfer of stand 15906 Nkulumane Township to applicant’s name and title.
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The Deputy Sheriff of Bulawayo be and is hereby authorised, in the event of first respondent to comply with paragraph 1to sign, on first respondent’s behalf and stead, all documents of transfer in order to ensure that stand 15906 Nkulumane Township is transferred into applicant’s name and title.
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The second respondent and all persons who claim through him, be forcibly evicted out of stand 15906 Nkulumane, Bulawayo within 30 days of the service of this order.
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The first and second respondents to bear costs of suit.
Sibusiso Ndlovu,applicant’s legal practitioners
Moyo-Hara & Partners, second respondent’s legal practitioners
