In December 2013, the first respondent sold stand 4379 Norton Township of Knowe to the applicant for $20,000. When the first respondent attempted to resile from the agreement, the applicant obtained a court order (HC 4412/14, judgment HH 783/15) from Makoni J on 30 September 2015, ordering the first respondent to sign transfer documents. Despite this order, the first respondent entered into another agreement with the second respondent on 7 October 2015, selling the same property for $34,000. Transfer was effected to the second respondent who obtained title deeds. The applicant then issued summons (HC 263/16) seeking to set aside the transfer to the second respondent. After the second respondent entered appearance and filed a plea, the applicant launched an application for summary judgment, believing the second respondent had no bona fide defence and was merely delaying proceedings.
The application for summary judgment was dismissed with costs.
Summary judgment will be refused where the defendant has raised a bona fide defence with triable issues, even if the plaintiff appears to have a strong case. In double sale cases, the status of property as res litigiosa due to prior litigation does not automatically disentitle an innocent purchaser from defending the claim, as considerations of public policy and the balance of equities must be considered at trial. The protection of innocent purchasers who take transfer without knowledge of prior sales or litigation constitutes a legitimate defence that cannot be summarily dismissed. Summary judgment, being a drastic remedy, should not be granted where doing so would deny a party with an arguable case the right to be heard.
The court observed that while the law generally favors the first purchaser in double sale situations (as stated in BP Southern Africa Pty Ltd v Desden Properties), this is not an invariable rule and special circumstances may justify a different outcome. The court noted that various factors affect the balance of equities, including that the second respondent had taken transfer, was in occupation, had paid more for the property ($34,000 vs $20,000), and no caveat had been registered against the property. The court also commented that a purchaser cannot be penalized for the Registrar's failure to place a caveat on property that is subject to litigation, citing Mwayipaida Family Trust v Madoroba.
This case illustrates the Zimbabwean courts' approach to balancing the competing interests in double sale scenarios, particularly where one purchaser has obtained a court order but the other is an innocent purchaser who has taken transfer. It demonstrates judicial reluctance to grant summary judgment in complex property disputes involving questions of res litigiosa and the protection of innocent purchasers, emphasizing that such matters require full ventilation at trial. The case reinforces that summary judgment remains an exceptional remedy that will not be granted where the defendant has raised triable issues and an arguable defence, even where the plaintiff appears to have a strong legal argument.