Evidence Ncube v Rosemary Mangani and Others

In January 2006, the plaintiff purchased immovable property (stand number 12847 Bulawayo Township, also known as 10 Shaw Close, Sunnyside, Bulawayo) from the 1st and 2nd defendants (husband and wife) for Z$2 billion (equivalent to R13,333.00). The plaintiff paid a deposit of Z$750 million and agreed to pay the balance in instalments over 28 months. The agreement was signed by the 1st defendant, with the 2nd defendant's knowledge and approval. The plaintiff paid approximately 40-50% of the purchase price toward the sellers' children's school fees in South Africa as directed by the 2nd defendant. The plaintiff took vacant possession and installed tenants. In May 2007, the plaintiff discovered the house was being advertised for sale again. She obtained a provisional order on 18 May 2007 preventing the sale and transfer of the property. The order was served on the 1st defendant's lawyers and the Registrar of Deeds on 22 May 2007. Despite this, on 23 May 2007, the 2nd defendant entered into a second agreement of sale with the 3rd defendant for Z$1.5 billion (equivalent to US$36,000.00). The property was transferred to the 3rd defendant on 19 December 2007. The plaintiff's tenants informed the 3rd defendant and his agents of the prior sale and showed them the provisional order, but the 3rd defendant proceeded with the purchase.

• Whether the 3rd defendant was a bona fide purchaser without notice of the prior sale
• Whether the agreement of sale between the 2nd and 3rd defendants was valid
• Whether the transfer and sale of the house by the 1st, 2nd, 3rd and 4th defendants was lawful
• Whether the title deed registered in the 3rd defendant's name should be cancelled
• Whether the maxim 'qui prior est tempore potior est jure' (first in time, stronger in right) applies in cases of double sales
• Whether there were special circumstances affecting the balance of equities that would disqualify the first purchaser from specific performance
• Whether the 2nd defendant ratified the first sale agreement signed by the 1st defendant
• Whether the agreements violated exchange control regulations

1. The transfer of stand number 12847 Bulawayo Township under Deed of Transfer number 2928/2007 from the 2nd defendant to the 3rd defendant's name is cancelled. 2. The said stand number 12847 Bulawayo Township be transferred into the plaintiff's name forthwith. 3. In the event the 1st to 3rd defendants fail to comply with paragraph 2, the Deputy Sheriff is authorized to sign all relevant transfer papers on the 3rd defendant's behalf to effect the transfer. 4. The sum of ZAR13,333.00 be paid to the 3rd defendant but deemed to have been paid to the 2nd defendant against transfer of the disputed property from 2nd defendant to the plaintiff. 5. The costs of the plaintiff and 3rd defendant are to be paid by the 1st and 2nd defendants on an attorney-client scale.

In cases of double sales of immovable property, the first purchaser has the primary right to specific performance based on the principle 'qui prior est tempore potior est jure' (first in time, stronger in right), unless there are special circumstances affecting the balance of equities. A second purchaser who has knowledge of a prior sale, whether acquired personally or through their agent, either at the time of entering into the agreement or before transfer is effected, cannot claim to be a bona fide purchaser and is not entitled to retain the property. Knowledge acquired by an agent in the course of their employment is imputed to the principal. Ratification of a contract by a principal can be express or implied from conduct, including acceptance of benefits of the transaction. Where an agent sells property on behalf of a principal, and the principal receives the purchase price and directs its use, this constitutes ratification of the sale even if the principal did not sign the initial agreement. The onus lies on the second purchaser to prove the existence of special circumstances necessitating maintenance of the status quo. The fact that a second purchaser may face difficulties recovering damages from an absent seller does not constitute a special circumstance sufficient to displace the first purchaser's right to specific performance.

The court observed that it was highly improbable that a reasonable person would pay US$36,000.00 for a property without viewing its interior, especially when making multiple visits to the location. The court commented that the 3rd defendant's explanation for failing to view the property (being too tired, or the owners being away) was unsatisfactory and incredible. The court noted that the reference to exchange control regulations was not properly established, as both parties claimed to use 'free funds' from sources outside Zimbabwe. The court observed that the confusion and contradictions in the evidence of the 3rd defendant and his witnesses regarding the visits to the property undermined their credibility. The court commented on the role of the Registrar of Deeds, noting that despite being served with the provisional order, no caveat was registered on the title deed prior to transfer to the 3rd defendant, though this did not affect the plaintiff's rights. The court made observations about the conduct of the 1st and 2nd defendants, who appeared to be operating a fraudulent scheme by selling the same property twice, but noted they did not appear to defend themselves. The court noted that the fact that transactions occurred during hyperinflation meant that comparisons of purchase prices should not be given too much weight in assessing the balance of equities.

This case is significant in Zimbabwean property law as it comprehensively addresses the law of double sales and the application of the maxim 'qui prior est tempore potior est jure' (first in time, stronger in right). The judgment clarifies that where a seller fraudulently sells immovable property to two purchasers, the first purchaser is entitled to specific performance unless there are special circumstances affecting the balance of equities. The case establishes that a second purchaser who has knowledge of a prior sale, either through their agents or personally, and either before entering into the agreement or before transfer is effected, cannot claim to be a bona fide purchaser. The judgment also addresses the law of agency, confirming that knowledge acquired by an agent in the course of their employment is imputed to the principal. The case reinforces the importance of conducting proper due diligence when purchasing property and the legal consequences of proceeding with a purchase despite notice of competing claims. It also demonstrates the court's approach to weighing equities in double sale situations, considering factors such as possession, payment, attempts to protect interests, and the conduct of the parties.