Sehlukene Sibanda v Sifiso Somfula Thebe and Others

Alpha Construction Property Developers (second respondent), a land developer, allocated stand 6711 Cowdray Park to the first respondent in 1999 and agreed to construct a two-roomed house. The stand was transferred to the first respondent by deed of transfer 4570/99, and a mortgage bond 5210/99 was registered in favour of Founders Building Society for construction financing. However, the first respondent failed to pay the purchase price or draw down the loan, and the mortgage bond was cancelled on 5 October 2006. The first respondent then disappeared. The second respondent repossessed the stand and sold it to the applicant, who paid in full and secured funding from Beverley Building Society. A three-roomed house was constructed using these funds. The stand was transferred to the applicant by deed of transfer 1272/2002, but this was registered in error without cancelling the first transfer. The Registrar of Deeds purported to cancel the applicant's transfer, but this was done without a court order. When the first respondent reappeared after construction was completed, he unlawfully evicted the applicant based on his uncancelled deed.

• Whether the Registrar of Deeds had authority to cancel a deed of transfer without a court order
• Which of two deeds of transfer registered over the same property should prevail in a double sale situation
• Whether the applicant's rights should be protected despite having knowledge of the first respondent's prior deed
• Whether special circumstances affecting the balance of equities favored the applicant
• Whether the first respondent should be evicted from the property

1. The deed of transfer number 4570/99 in favor of the first respondent is cancelled. 2. The deed of transfer number 1272/2002 in favor of the applicant is upheld. 3. The first respondent and all those claiming occupation through him are directed to forthwith vacate the property, failing which the Deputy Sheriff should eject them. 4. Costs of the application to be borne by the first respondent.

The binding legal principles established are: (1) A Registrar of Deeds has no authority under section 8(1) of the Deeds Registries Act to cancel a registered deed of transfer except upon an order of court, and any purported cancellation without such order is a nullity. (2) In cases of double sales where both parties hold registered deeds, the court must consider the balance of equities, including whether the second purchaser acted in good faith and for value. (3) Where special circumstances exist - such as the second purchaser paying the full purchase price and construction costs while the first purchaser made no payment and only appeared after construction - the balance of equities may favor the second purchaser even if there was knowledge of the prior sale.

The court made observations about the error at the Deeds Registry in registering the second deed without cancelling the first, noting that while this was an error, it did not give the Registrar authority to unilaterally cancel the deed. The court also noted the peculiarity of the case where both parties held title deeds even though the applicant's ought not to have been registered in the first place, but emphasized that equity must guide the resolution of such disputes.

This case is significant in Zimbabwean property law for: (1) affirming that the Registrar of Deeds cannot cancel registered deeds of transfer without a court order as required by section 8(1) of the Deeds Registries Act; (2) applying the principles governing double sales of immovable property, particularly where there are competing registered deeds; (3) demonstrating that even where a second purchaser may have knowledge of a prior sale, special circumstances affecting the balance of equities can determine which purchaser's rights prevail; and (4) protecting bona fide purchasers for value who have invested substantially in property development against purchasers who failed to fulfill their payment obligations.