Togarepi Mhetu and Tendayi Pauline Mhetu v Precious Katuruza and Others

The applicants (husband and wife) sold their Waterfalls property in January 2013 through the first respondent. They used the proceeds to purchase Stand 749 Glen View Township from the first respondent for US$29,000.00. A Deed of Assignment was signed in their favour, they paid US$655.00 in rates, and took possession of the property. However, in February 2013, Patrick Disban of Lightvale Properties advised them that he had sold the same property to the fifth respondent under a sole mandate from the first respondent. In March 2013, the fifth respondent moved into the property, dispossessing the applicants. The first respondent claimed she was not in Zimbabwe during the transaction and did not know the applicants, alleging they were defrauded by impostors. She claimed she would never have sold for US$29,000 as she wanted US$45,000. The fifth respondent claimed he bought the property for US$42,000 on 31 January 2013.

• Whether the first respondent competently opposed the application
• Whether a general power of attorney executed outside Zimbabwe but not properly authenticated could authorize an agent to swear to an opposing affidavit
• Whether the affidavit sworn by the agent contained inadmissible hearsay evidence
• Whether a binding agreement existed between the applicants and the first respondent
• Whether the applicants were entitled to transfer of the property and eviction of the fifth respondent

The court ordered: (1) The first, second and third respondents must within 30 days do all things necessary to transfer Stand 7410 Glen View Township to the applicants; (2) If any respondent fails to comply, the Sheriff is authorized to sign and execute all documents on their behalf; (3) Within 7 days of service, the fifth respondent and all claiming through him must vacate the property, failing which the Sheriff with or without police assistance shall evict them; (4) The first and fifth respondents to pay costs on the attorney-client scale, one paying the other to be absolved.

A power of attorney executed outside Zimbabwe must be authenticated in accordance with the High Court (Authentication of Documents) Rules 1971 by a notary public, judicial officer, or Zimbabwean diplomatic/consular representative to be valid for use in Zimbabwean court proceedings. An affidavit sworn by an agent under a power of attorney will be rejected as hearsay if the deponent lacks personal knowledge of the facts and fails to identify the source of information and basis of belief as required by the Civil Evidence Act. Where a seller has concluded a valid agreement of sale and received payment, they are estopped from subsequently selling the same property to another purchaser. A party who fails to file a competent opposing affidavit will be non-suited, and the court may grant the relief sought by the applicant on a balance of probabilities.

The court observed that while the applicants submitted that a special (restrictive) power of attorney would have been the correct document, the judge expressed the view that a properly executed general power of attorney authorizing an agent to manage all affairs would have sufficed for purposes of swearing to an opposing affidavit. The court also commented that the first respondent's claim of absence from Zimbabwe at the time of the transaction was "in all probability a false story created and intended to hide fraudulent deals," noting that evidence showed she was in Zimbabwe on 10 January 2013, just 15 days before the transaction on 25 January 2013. The court characterized the first respondent's conduct as involving "bogus powers of attorney" in a "hopeless attempt to mislead the court" that deserved costs on a higher scale.

This case is significant for establishing procedural requirements for authentication of powers of attorney executed outside Zimbabwe in terms of the High Court (Authentication of Documents) Rules 1971. It reinforces the principle that documents executed abroad must comply with authentication requirements (notarial authentication or authentication by Zimbabwean diplomatic representatives) to be admissible in Zimbabwean courts. The judgment also emphasizes evidentiary requirements for opposing affidavits, particularly the inadmissibility of hearsay evidence where the deponent lacks personal knowledge and fails to properly identify sources of information in accordance with the Civil Evidence Act. The case demonstrates the court's willingness to protect bona fide purchasers who have fulfilled their contractual obligations and to impose punitive costs where parties attempt to mislead the court through fraudulent schemes involving multiple sales of the same property.