George Robert Parkin v Elvin Ncube

The plaintiff sought to evict the defendant from Lot 1 of subdivision B of subdivision B of Deneys, a rural property in Gwanda district. The plaintiff was the registered owner of the property, having purchased it from the executor of the estate of the late Gladys Marjorie Parkin (the seller) in 2016. The defendant had been in occupation of the property since 2010/2011, claiming he entered into an agreement of sale with the seller to purchase the property for USD90,000, paying a deposit of USD40,000 on 5 October 2011. The defendant alleged the balance was payable upon the seller obtaining a certificate of no present interest from the Ministry of Lands. The seller died on 29 May 2013. Mr. Richard Moyo-Majwabu was appointed executor dative of her estate. The executor sent letters to the defendant on 27 February 2013 (before the seller's death) and 3 December 2013 demanding payment and ultimately giving notice to vacate. The defendant claimed to have paid a deposit and produced a receipt (Exh. B2), which the executor denied ever seeing and alleged was fake. The defendant failed to lodge a claim against the deceased estate or object to the final distribution account. The executor obtained authority from the Master under section 120 of the Administration of Estates Act to sell the property by private treaty and sold it to the plaintiff for USD50,000.

• Whether there was a valid agreement of sale in respect of the property between the late Gladys Marjorie Parkin and the defendant
• Whether the transfer of the property into plaintiff's name was done fraudulently and unlawfully
• Whether the plaintiff is entitled to eviction relief based on the rei vindicatio
• Whether section 3 of the Land Acquisition Disposal of Rural Land Regulation 1999 (S.I. 287/99) requiring a certificate of no present interest was complied with
• Whether the defendant paid a deposit of USD40,000 and had a valid enforceable agreement
• Whether costs on a legal practitioner and client scale were warranted

a. Plaintiff's claim succeeds with costs on a legal practitioner and client scale. b. Defendant's claim in reconvention is dismissed with costs on a legal practitioner and client scale. c. Defendant and all those claiming occupation through him must vacate Lot 1 of subdivision B of Deneys measuring 53,9010 hectares within 14 days of this order, failing which the Sheriff or his lawful deputy is authorized to eject the defendant from the property.

1. A sale of rural land in Zimbabwe must comply with section 3 of the Land Acquisition Disposal of Rural Land Regulation 1999 (S.I. 287/99), which requires that a certificate of no present interest be obtained from the Minister before the sale. A sale agreement entered into without such a certificate is invalid and void by operation of law. 2. An owner who institutes the rei vindicatio must prove: (i) ownership of the thing; (ii) that the thing was in possession of the defendant at commencement of the action; and (iii) that the thing vindicated is still in existence and clearly identifiable. The onus to establish any right to retain possession rests on the defendant. 3. Special pleas such as prescription must be specifically pleaded before the merits and supported by evidence; they cannot be raised for the first time in closing written submissions. 4. Where an executor obtains proper authority from the Master under section 120 of the Administration of Estates Act to sell estate property by private treaty, and a party fails to lodge a claim against the estate or object to the final distribution account, such party cannot later challenge the validity of the sale to a bona fide purchaser.

The court observed that costs on a legal practitioner and client scale are warranted where a party engages in reprehensible conduct, including fabricating evidence (producing a fake receipt), peddling falsehoods, and taking unfair advantage of the fact that key witnesses are deceased. The court noted that it is important to distinguish issues of admissibility from issues of weight when considering documentary evidence. The court also observed that best trial practice requires counsel to immediately object when evidence considered inadmissible is adduced, rather than waiting until closing submissions to raise the objection. The court remarked that defendant's testimony was "riddled with falsehoods" and that he crafted "a strategy to take advantage of the seller because she is late," describing this as "unworthy conduct" deserving censure.

This case reinforces the statutory requirement under section 3 of the Land Acquisition Disposal of Rural Land Regulation 1999 (S.I. 287/99) that a certificate of no present interest from the Minister must be obtained before rural land can be sold. Failure to obtain such a certificate renders the sale agreement invalid and void. The case also demonstrates the requirements for a successful rei vindicatio claim in Zimbabwean law, including the owner's right to ruthless vindication and protection of ownership. The judgment emphasizes the importance of credibility assessment in civil trials and illustrates circumstances warranting costs on a legal practitioner and client scale where a party engages in fabrication of evidence and deceptive conduct. The case also clarifies procedural requirements regarding special pleas such as prescription, which must be specifically pleaded and supported by evidence, and cannot be raised for the first time in closing submissions.