Everisto Nyanyiwa v Kesari Benhura and Clayton Gwarinda and City of Harare

The 1st defendant (Kesari Benhura) was the owner of Stand number 4338 New Mabvuku Harare (House Number 15 Muvhimi Street New Mabvuku). On 21 December 2001, he sold the property to the plaintiff (Everisto Nyanyiwa) for $300,000.00. The agreement was reduced to writing and the plaintiff paid $286,000.00 by bank transfer and $14,000.00 in cash. Transfer could not be effected because municipal authorities required the seller to produce a death certificate for his late wife. The 1st defendant undertook to obtain the certificate but instead obtained it and resold the property to the 2nd defendant (Clayton Gwarinda) for $700,000.00 in February 2002. Transfer to the 2nd defendant was effected on 5 March 2002. When the plaintiff experienced delays, he instituted legal proceedings and obtained judgment on 15 May 2002 under HC 2733/02 ordering the 1st defendant to cede rights to him. A lodger, Paradzai Mutaki, testified that he told the 2nd defendant's father in February 2002 that the house had already been bought, but the father insisted on inspecting it anyway.

• Whether the 2nd defendant had knowledge of the first sale to the plaintiff when he entered into the second sale or at the time of cession
• Which of two competing purchasers of the same property has superior rights where there has been a double sale

(1) The agreement of sale between the 1st and 2nd defendants was cancelled; (2) The agreement of sale between the plaintiff and 1st defendant was confirmed; (3) The 1st and 2nd defendants were ordered to cede their rights, title and interest in the property to the plaintiff within 10 days, failing which the Deputy Sheriff was authorized to sign all necessary documents; (4) The 3rd defendant (City of Harare) was ordered to authorize the cession; (5) The 2nd defendant was ordered to bear the costs of the trial.

In cases of double sale of immovable property, where a subsequent purchaser acquires the property with knowledge (actual or constructive) of a prior sale, the first purchaser who acquired rights in good faith will have superior rights to the property, even if transfer was not yet effected to the first purchaser and transfer was completed to the second purchaser. A purchaser who acquires property with knowledge of a prior sale takes a calculated conscious risk and cannot claim the protection afforded to a bona fide purchaser for value without notice.

The court made observations about witness credibility, noting that it was highly unlikely and not in the least probable that one could buy a house and have no desire to inspect it or meet the lodgers occupying it to announce new ownership. The court also observed that the absence of a witness (the 2nd defendant's father) without explanation allowed adverse inferences to be drawn. The court commented that the evidence of the lodger, who had no direct interest in the case, could not be expected to be perfectly accurate on all details but was nevertheless reliable on material facts.

This case establishes important principles regarding double sales of immovable property in Zimbabwean law (applicable to South African jurisprudence given similar legal principles). It confirms that where property is sold twice, the purchaser with prior knowledge that the property had already been sold to another cannot claim superior rights, even if transfer was effected in their favor. The case reinforces the principle that good faith is essential in property transactions and that a subsequent purchaser who acquires property with knowledge of a prior sale cannot be considered a bona fide purchaser. It also demonstrates the court's willingness to scrutinize the credibility of witnesses and reject fabricated evidence in property disputes.