Edith Garakara v Farai Ngorima

The respondent purchased immovable property (house number 3795 Ingezi Township Kadoma) from Monica Ruvimbo Dzinamarira on 7 March 2007 for $27,000,000. The property was registered in the respondent's name on 17 April 2007 under deed of transfer 000198/007, with the seller acknowledging full payment. After the respondent had already purchased and obtained title on 17 April 2007, the appellant subsequently purchased the same property from Monica Dzinamarira and obtained cession at the Municipality of Kadoma's offices on 13 July 2007. The appellant then sought rescission of a default judgment that had been entered against her in the Magistrates Court at Kadoma, which was dismissed on 15 December 2008.

• Whether the Magistrates Court had jurisdiction to hear the matter given the value of the property exceeded its normal jurisdiction
• Whether the appellant had reasonable prospects of success in challenging the transfer to the respondent
• Whether the second sale and cession by Monica Dzinamarira to the appellant was valid after she had already transferred title to the respondent
• Whether the application for rescission of default judgment should be granted

The appeal was dismissed with costs.

The binding legal principles established are: (1) Registration of title in the deeds registry has the legal effect of divesting the seller of any rights and title previously held in the property; (2) A seller who has been divested of rights and title through registration cannot validly transfer any rights or interest in that property to a subsequent purchaser - the second sale and cession is void and of no force or effect; (3) While the Magistrates Court is a court of limited jurisdiction, parties can consent to its jurisdiction; (4) A party who first approaches the Magistrates Court for relief in respect of a matter is deemed to have acquiesced or consented to that court's jurisdiction and cannot later challenge it; (5) An application for rescission of judgment will be dismissed where there are no reasonable prospects of success on the merits.

The court made the observation that common sense dictates that Monica Dzinamarira could not and did not transfer any rights and interest in the disputed property to the appellant for the simple reason that she had no such rights and interest to transfer. The court also noted sympathetically that the appellant was cheated into buying property and obtaining cession from a person who did not own the property, though this did not affect the legal outcome.

This case establishes important principles regarding the finality and effect of registration of title in the deeds registry in Zimbabwe. It confirms that registration divests the seller of all rights and title in property, rendering any subsequent purported sale by the same seller void and of no effect. The case also clarifies principles regarding consent to jurisdiction of the Magistrates Court, particularly where a party first approaches that court for relief and then later challenges its jurisdiction. The judgment reinforces the security of registered title and the nemo dat quod non habet principle - one cannot give what one does not have.