The third respondent, Maqhawe Mathe, entered into a memorandum of agreement on 2 July 2009 to sell stand number 263 Emganwini Township to Stella Matongo (first respondent) for R25,000. The property did not belong to Maqhawe but to his workmate. When Stella discovered this three weeks later, Maqhawe offered her his own undeveloped stand number 6107 Emganwini Township in August 2009 for the same price, which Stella accepted verbally. Maqhawe then refused to cooperate with the transfer. On 25 September 2009, Maqhawe fraudulently sold the same stand number 6107 to the applicant, William Ngwenya, for R24,000. The applicant took possession and started construction up to slab level. Stella had the stand transferred into her name. The applicant brought applications for joinder and rescission of the judgment granted in Stella's favor under case HC 1527/09, to which he was not a party.
The application for rescission was dismissed with costs against the applicant.
In a double sale of immovable property, the first purchaser who obtains transfer of the property into their name acquires a real right that takes priority over a subsequent purchaser, regardless of any improvements the subsequent purchaser may have made to the property. A party seeking rescission of a judgment, even when they were erroneously not cited and had a substantial interest in the matter, must still demonstrate a bona fide defense on the merits. The second purchaser in a double sale must seek their remedy in damages against the fraudulent seller.
The court observed that the balance of convenience was not tilted in the applicant's favor despite his having constructed up to slab level, as he was not without a remedy - Stella had indicated willingness to refund him for the slab construction. The court also noted the fraudulent nature of Maqhawe's activities in selling property that did not belong to him and then double-selling his own property.
This case is significant in Zimbabwean property law as it affirms the principle that in a double sale situation, the first purchaser who obtains transfer acquires a real right that prevails over a subsequent purchaser. It also demonstrates the court's discretion under Order 49 Rule 449(1)(a) to entertain rescission applications mero motu from affected parties who were erroneously not cited in proceedings, while emphasizing that such applications must still demonstrate a bona fide defense on the merits. The case further illustrates that improvements made by a second purchaser do not override the rights of the first purchaser who has obtained transfer, though the second purchaser may seek damages from the fraudulent seller.