Ellen Simon v Funda Saimon

The plaintiff, an 83-year-old illiterate woman, became the registered holder of Stand 1125 Makomo Extension, Epworth after being appointed executrix dative of her deceased husband's estate on 22 August 2007. Her husband had died on 18 February 1982. The defendant, a teacher and member of the same church, occupied a portion of the stand for 9 years without paying rentals or municipal charges. The defendant claimed he purchased portions of the stand from the plaintiff through agreements allegedly executed in September 1999 (for $16,000) and October 1999 (for an additional $7,000), totaling $23,000. These purported agreements (exhibits 1A and 1B) were allegedly signed on the plaintiff's behalf by her daughter Eneresi. The plaintiff denied selling any portion of the stand and sought eviction. The defendant counterclaimed for transfer of title to a subdivided portion of the stand. An application for subdivision in 2000 was rejected by the local board because the plaintiff was not then the registered holder. The stand was never subdivided.

• Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth
• Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant
• Whether the plaintiff is entitled to evict the defendant from the property
• Whether the purported agreements of sale (exhibits 1A and 1B) were validly executed
• Whether an agreement for sale of an unsubdivided portion of a stand is valid under the Regional Town and Country Planning Act
• Whether the essential elements of a contract of sale (consensus ad idem, merx, and pretium) were met

1. The defendant and all those claiming occupation through him are evicted from Stand No. 1125 Makomo Extension, Epworth Harare. 2. The defendant's counterclaim is dismissed. 3. The defendant shall pay the plaintiff's costs of suit for both the claim in convention and counterclaim.

1. An agreement for the sale or change of ownership of an unsubdivided portion of a residential stand is prohibited by section 39 of the Regional Town and Country Planning Act and is therefore invalid. 2. A valid contract of sale requires three essential elements: agreement (consensus ad idem), a thing sold (merx), and a price (pretium). The merx must be clearly ascertainable and identifiable; where land is involved, the portion sold must be capable of identification by area (e.g., square meters). An agreement failing to properly identify the portion of land sold is invalid for lack of an essential element. 3. A person cannot lawfully dispose of rights in property that they do not legally hold. Where property is part of a deceased estate, only an executor duly appointed by the Master has the legal capacity to deal with estate property. 4. The burden of proof lies on the party alleging the existence of an agreement of sale to establish its validity on a balance of probabilities.

The court observed that a commissioner of oaths worthy of the title would have requested an illiterate deponent to append her mark and thumbprint on the document, and would have known it was improper for a third party to sign as the plaintiff without indicating that she was signing as a duly authorized agent. The court noted the plaintiff's naivety, which was adequately explained by her age and low intellect, and which was exploited by Kagande and the defendant to the latter's advantage. The court commented on the questionable authenticity of exhibit 5 (the UDCORP letter), noting it did not refer to any previous correspondence from the local authority and contained uncountersigned alterations to the stand number.

This case establishes important principles regarding the sale of unsubdivided portions of land in Zimbabwe. It confirms that agreements for the sale or transfer of ownership of unsubdivided portions of residential stands are prohibited under section 39 of the Regional Town and Country Planning Act. The case reinforces the requirement that all essential elements of a contract of sale (consensus ad idem, merx, and pretium) must be present, particularly that the merx must be clearly ascertainable and identifiable. It also demonstrates the principle that a person cannot dispose of rights in property that they do not legally hold, particularly in the context of deceased estates where only an executor duly appointed by the Master has control over estate property. The case provides guidance on evidentiary matters, particularly regarding the authentication of documents allegedly executed by illiterate persons and the importance of credibility assessments when testimonies contain contradictions.