Charmline Marketing (Pvt) Ltd v Tonderai Chatikово and Others

The plaintiff, Charmline Marketing (Pvt) Ltd, was allocated 24 residential stands (numbered 20257-20280) in Crowborough Township, Harare, by the City of Harare (7th defendant) on 7 September 2016. The plaintiff fulfilled all conditions specified in the allocation letter, including roads construction, sewer and water reticulation, and payment for the intrinsic value of the land. It was subsequently issued with a Certificate of Compliance on 18 February 2018, which enabled it to apply for Title Deeds. The plaintiff's beneficiaries (employees) were to be allocated these stands. However, when the plaintiff visited the site, it discovered that some unknown individuals (the 1st to 6th defendants) had been allocated its stands, allegedly through agreements of sale with the 7th defendant. The plaintiff denied any relationship or dealings with Angle Capital (8th defendant) regarding these stands. The plaintiff sought declarations that the agreements of sale between the 1st to 6th defendants and the 7th defendant were null and void, that it was the legitimate owner of the stands, and orders for eviction and removal of structures. After the close of the plaintiff's case, the defendants applied for absolution from the instance.

• Whether the plaintiff had adduced sufficient evidence to establish a prima facie case at the close of its case
• Whether the defendants were entitled to absolution from the instance
• What constitutes a prima facie case sufficient to survive an application for absolution from the instance

The application for absolution from the instance was dismissed. Costs were ordered to be in the cause.

At the close of the plaintiff's case in an application for absolution from the instance, the test is whether there is evidence upon which a reasonable person might find for the plaintiff. The plaintiff is required to make out a prima facie case in the sense that there is evidence relating to all elements of the claim. Where the plaintiff's oral testimony is substantiated by relevant documentary evidence (such as allocation letters, certificates of compliance, proof of payment, and confirmations of allocation), this constitutes sufficient material to establish a prima facie case and the application for absolution must be dismissed.

The court observed that the Certificate of Compliance is a crucial document that demonstrates that the plaintiff has been on the ground and has effected certain required developments, and that it is on that basis that one applies for Title Deeds. The court also noted that the plaintiff had reached the stage where it could apply for Title Deeds, indicating its advanced position in securing its rights to the allocated land.

This case reinforces the established principles governing applications for absolution from the instance in Zimbabwean civil procedure. It clarifies the threshold for establishing a prima facie case at the close of the plaintiff's case and emphasizes that documentary evidence substantiating oral testimony can be sufficient to survive absolution. The judgment demonstrates the importance of proper land allocation procedures and the protection of rights of legitimate allocatees against competing claims. It also illustrates the application of the Gascoyne v Paul & Hunter test in contemporary property disputes involving municipal land allocations.