Francis Samuriwo v Kundayi Evelyn Mazaiwana and Kudzayi McDonald Mazaiwana and Registrar of Deeds (consolidated with Kundayi Evelyn Mazaiwana and Kudzayi McDonald Mazaiwana v Francis Samuriwo)

The plaintiff claimed he purchased Stand 957 Strathaven Township 11 of Stand 970A Strathaven Township, Harare from Theophilus Melusi in February 2005 for US$90,000. Melusi purported to act as guardian of the first and second defendants, who were minors at the time. The property originally belonged to the defendants' deceased father, Irimayi Macdonald Mazaiwana (estate DR 1524/93), and later their mother Sifanele Margret Mazaiwana (estate DR 139/12). Melusi was neither a legally appointed guardian nor an executor of either estate. The plaintiff lodged a claim with the executor of Sifanele's estate, which was dismissed. The property was subsequently transferred to the defendants under Deed of Transfer 1066/15 with the Master's approval. The plaintiff occupied the property without paying rent. The defendants instituted eviction proceedings (HC 2923/15), which was consolidated with the plaintiff's action for transfer or restitution (HC 12543/15). At trial, the plaintiff abandoned his main claim for transfer and proceeded only with the alternative claim for restitution of US$90,000.

• Whether the plaintiff purchased the property from Theophilus Melusi and paid US$90,000
• Whether the alleged agreement of sale between Theophilus Melusi and the plaintiff was lawful and valid
• Whether the plaintiff established prima facie payment of US$90,000 to Melusi
• Whether the plaintiff proved that the alleged purchase price was used for the defendants' school fees
• Whether the defendants were entitled to evict the plaintiff from the property
• Whether absolution from the instance should be granted at the close of the plaintiff's case

In HC 12543/15: The first and second defendants were absolved from the instance, with costs awarded against the plaintiff. In HC 2923/15: The respondent (plaintiff in the other matter) was ordered to vacate the property, failing which the Sheriff was authorized to evict him and all those claiming through him, with costs awarded to the applicants.

A purported sale of immovable property forming part of a deceased estate is void and unenforceable where: (1) the seller is not a duly appointed executor of the estate; (2) the estate has not been registered with the Master of the High Court; (3) the Master's consent to the sale has not been obtained as required by section 120 of the Administration of Estates Act [Chapter 6:01]; and (4) the transaction contravenes the Exchange Control Act and Regulations. Absolution from the instance will be granted where the plaintiff fails to establish a prima facie case on essential elements of the claim, including payment of the alleged purchase price, particularly where there is no documentary evidence, contradictory testimony, and the written agreement reflects a different amount and currency. A registered owner of property is entitled to eviction of an unauthorized occupier where the occupier has no valid legal basis to challenge the title.

The court observed that US$90,000 is not a trifling amount even in the Zimbabwean 2015 economic environment, suggesting that the complete absence of documentation for such a substantial transaction was highly suspicious. The court noted that while an illegal agreement that has not been performed will not be enforced, relaxation of the in pari delicto principle is permissible where both parties are equally in the wrong in order to do justice between parties, citing Dube v Khumalo 1986 (2) ZLR 103 (S) and Hativagone & Another v CAG Farms (Pvt) Ltd & Ors SC 152/14. The court commented that the plaintiff's case was "a hopeless case right from the outset" and that what the plaintiff and his witness presented was "a story" that came nowhere near establishing why the matter should proceed to the defendants' case. The court observed it would have been "a complete waste of time" to go beyond the plaintiff's case and that even if the defendants had opened and closed their case without leading evidence, there was no way the court could have made even a reasonable mistake and given judgment for the plaintiff.

This case reinforces fundamental principles of estate administration and property law in Zimbabwe. It emphasizes that: (1) estate property can only be validly disposed of by a duly appointed executor with the Master's consent as required by the Administration of Estates Act; (2) contracts for the sale of estate property concluded by unauthorized persons are void and unenforceable; (3) compliance with exchange control legislation is mandatory for transactions in foreign currency; (4) the court will grant absolution from the instance where a plaintiff fails to establish a prima facie case even on the most basic elements of the claim; and (5) registered title holders are entitled to eviction of unauthorized occupiers. The judgment demonstrates the courts' strict approach to protecting estate property and ensuring compliance with statutory requirements for estate administration.