Dorothy Mashandudze (In her capacity as Executrix Dative to Estate Late Mistopha Nyamayaro Paradzayi Mashandudze) v Karoi Town Council and Others

The plaintiff was the widow and Executrix Dative of the Estate of the Late Mistofa Nyamayaro Paradzayi Mashandudze, who died on 31 January 2004. The deceased owned Chiedza Farm Lot 1 of Glaudia Farm measuring 391.5320 hectares in the Karoi area. Around 2005-2006, the first defendant (Karoi Town Council) unlawfully moved onto the farm and surveyed residential stands which it allocated to the second and third defendants' members (housing cooperatives), mainly low income government employees on the council's housing waiting list. The fourth defendant (Minister of Local Government) also allegedly moved onto the farm and built housing units under the Garikai/Hlalani Kuhle political programme to house victims of the Murambatsvina clean-up operation. Neither the plaintiff as Executrix nor the fifth defendant (Master of the High Court) authorized these occupations. The plaintiff discovered people clearing land in 2006 using the first defendant's tractor. The first defendant admitted the unauthorized occupation but claimed it was ratified when the plaintiff subsequently agreed to sell the farm at open market value. The plaintiff denied selling the farm or agreeing to any such sale, and denied receiving any compensation.

• Whether the plaintiff condoned or ratified the illegal occupation of the deceased's farm by agreeing to sell the farm to the first defendant
• Whether the first, second and third defendants and those claiming occupation through them should be evicted from the farm
• Whether persons who occupied the farm under the Garikai Hlalani Kuhle programme had lawful authority to do so
• Whether there was a valid agreement for sale of the farm between the plaintiff and the first defendant

The court ordered that: (1) The 1st, 2nd, 3rd and 4th defendants and those claiming the right to occupy the deceased's farm through them must vacate Chiedza Farm Lot 1 of Glaudia Farm within 14 days of service of the order, failing which the Sheriff is ordered to eject them and restore vacant possession to the plaintiff; (2) The 1st, 2nd and 3rd defendants pay the plaintiff's costs of suit.

A person who occupies land without the express or tacit consent of the person with legal authority to grant permission, or without any right in law to do so, is an unlawful occupant liable to ejectment. An initial illegal occupation of land is not ratified or purged by an alleged subsequent agreement to sell unless there is clear evidence that such a sale agreement was actually concluded. Where defendants admit unauthorized occupation but claim ratification through sale, they bear the burden of proving that the sale actually occurred. Occupation under governmental programmes (such as Garikai Hlalani Kuhle) does not confer lawful occupation rights in the absence of proper expropriation procedures and authorization under relevant legislation. Owners of land are entitled to recover possession through due process when unlawful occupation is established.

The court noted that the fourth defendant's indifference and failure to participate in the proceedings could be understood as it had also not responded to the first defendant's application for expropriation of the farm for urban development. The court also observed that it was not surprising that the first defendant did not call evidence to corroborate that the Garikai Hlalani Kuhle Programme was handed over to it by Governor Samkange, as this defence was not consistent with the defence as pleaded (which was based on alleged ratification through sale). The court expressed sympathy with the plaintiff's position through the testimony of Mr. Kaitano, who acknowledged he sympathized with the plaintiff's complaint about disruption of farming activities.

This case is significant in Zimbabwean property law as it affirms the fundamental principle that ownership of registered land cannot be unlawfully usurped even by governmental or quasi-governmental entities or political programmes. It establishes that occupation of private land without the owner's consent or proper legal expropriation procedures remains illegal and subject to ejectment, regardless of the social or political objectives behind such occupation. The case reinforces the protection of property rights and the requirement for due process in land acquisition, even in the context of governmental housing programmes aimed at addressing social needs. It also demonstrates that informal agreements or arrangements do not constitute ratification of illegal occupation without clear evidence of concluded sale agreements.