Penias Nyamwino v B. Gwafa and Saltana Enterprises (Private) Limited

On 23 August 2006, the plaintiff purchased stand 7874 Belvedere West, Harare from the second defendant (Saltana Enterprises), a property developer, and paid the full purchase price. On 6 November 2012, the first defendant moved onto the undeveloped stand without the plaintiff's consent and began developing it. The first defendant claimed he acquired the stand in 2003 from Travolta Jana. The stand had a complex history of multiple sales: initially sold by the second defendant to Terrence Kavande, who struggled to pay and had the sale cancelled and stand repossessed by Borm Real Estate (the second defendant's agents) in November 2002. After repossession, Kavande sold the stand to Patushedzo Manala through Borm Real Estate, who paid the full price to Borm. Manala then sold to Chenjerai Travolta Jana, who sold to the first defendant in April 2003. The second defendant was under judicial management from April 2006. At trial, it emerged that the stand may have been allocated to Mr. Pahwaringira, a director of the second defendant, though this was not pleaded. The plaintiff was unaware of both the prior sales and the judicial management status when he purchased.

• Whether the plaintiff has locus standi to evict the first defendant
• Whether the first defendant has a valid agreement of cession in respect of stand 7874 Belvedere West, Harare
• Whether the agreement between the second defendant and the plaintiff is valid and if so whether it supersedes the agreement entered into by the first defendant and Travolta Jana
• Whether the second defendant should compensate the plaintiff and to what extent
• The validity of sales conducted after repossession of property
• The authority of estate agents to facilitate subsequent sales
• The legal capacity of a company under judicial management to sell property
• The effect of lack of authority on contracts of sale

1. The plaintiff's main claim is dismissed. 2. The second defendant is to compensate the plaintiff for the stand in the sum of $30,000.00. 3. The second defendant is to pay the costs of both the plaintiff and the first defendant.

1. Once an agreement of sale is cancelled and property repossessed, the former purchaser is divested of all rights and interest in the property and cannot lawfully sell it to a third party without the consent of the owner. 2. A sale conducted after cancellation and repossession is a nullity, and all subsequent sales derived from that void sale are also nullities with no force or effect. 3. An estate agent's mandate to sell property on behalf of a principal does not extend to facilitating subsequent sales by purchasers to third parties without the principal's involvement or consent. 4. A company under judicial management lacks legal capacity to sell property, as its directors are divested of all powers during the period of judicial management, rendering such sales invalid. 5. A party cannot sell property it does not own without proper authority from the true owner; such unauthorized sales are void ab initio. 6. Where a seller misleads a purchaser and sells property it has no right to sell, the seller is liable to compensate the purchaser for the purchase price or the current market value of equivalent property.

The court observed that an agreement with an estate agent is a contract sui generis, noting that estate agents are "sometimes said not to be an agent at all" as they do not conclude contracts on behalf of principals and do not undertake a mandate in the traditional sense. The court emphasized the importance of not treating estate agents either as full agents to whom all agency rules apply, or as non-agents to whom no agency rules apply. The court also commented on the questionable conduct of Borm Real Estate in facilitating the sale after issuing a certificate of repossession, suggesting possible fraud or connivance. The court noted that had Borm's representative been called to testify, they would have been better positioned to explain the circumstances of the sale and what happened to the purchase money. The court expressed puzzlement that the involvement of Mr. Pahwaringira was not pleaded in the second defendant's plea but only emerged during trial, taking the plaintiff by surprise.

This case is significant in Zimbabwean property law for clarifying several important principles: (1) the legal consequences of selling property after repossession - that such sales are nullities and all subsequent sales derived from them are void; (2) the limited authority of estate agents, who cannot facilitate subsequent sales by buyers without the principal's involvement unless specifically mandated; (3) the invalidity of property transactions conducted by companies under judicial management without proper authorization; (4) the doctrine of nemo dat quod non habet (one cannot give what one does not have) in the context of successive property sales; (5) the liability of developers/sellers who mislead purchasers, establishing a duty to compensate innocent purchasers for invalid sales. The case demonstrates the court's approach to resolving competing claims to property where there have been multiple irregular sales, focusing on identifying the point at which the chain of title was broken rather than simply applying a 'first in time' rule.