Jane Chipiti v Tatenda Dembaremba (In his capacity as the executor dative of the estate of the late Johannes Dembaremba DR 1548/22) and Chenai Tepalepa and The Master of High Court and The Registrar of Deeds N.O

The plaintiff (Jane Chipiti) claimed confirmation of revocation of a donation of immovable property, Stand Number 3762 Dzivarasekwa 4, Harare (held under Deed of Transfer 04697/95), which she had donated to her late son, Johannes Dembaremba. The plaintiff, a single mother who worked as a maid for Mr Baines, acquired the property in 1984 through an agreement of sale with the Municipality of Harare. In 1994, she donated the property to her son to enable him to procure a loan to develop the house to completion on her behalf, on the understanding she would retain undisturbed rights over the property until her death. Transfer was effected in September 1995. The plaintiff alleged ingratitude by the late Johannes Dembaremba and the second defendant (his surviving spouse, Chenai Tepalepa), including failure to look after her, destroying her property, denying her access, and accusations of witchcraft by false prophets. In the late 1990s, the plaintiff had once chased her son and his family from the property for two years. In 2021, she revoked the donation and her son allegedly apologized and agreed to reverse everything. The first defendant (Tatenda Dembaremba) is the executor dative of the late Johannes Dembaremba's estate and the plaintiff's eldest grandson. At the close of the plaintiff's case, the first and second defendants applied for absolution from the instance.

• Whether the plaintiff established a prima facie case for revocation of a donation based on ingratitude at the close of her case
• Whether the application for absolution from the instance should be granted
• What is the appropriate test for determining applications for absolution from the instance
• Whether costs de bonis propiis or on an attorney and client scale should be awarded against the plaintiff or her legal practitioner

1. The application for absolution from the instance was dismissed. 2. The first and second defendants were put to their defense when the matter resumes on a date to be advised by the Registrar. 3. The first and second defendants were ordered to pay the plaintiff's costs on a Legal Practitioner and Client scale.

At the close of a plaintiff's case, an application for absolution from the instance must be dismissed if there is evidence upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiff. The test is whether a prima facie case has been established, not whether the plaintiff will ultimately succeed. At this procedural stage, the court is not primarily concerned with the credibility of witnesses or the probabilities of the case. Where a plaintiff has led evidence establishing the basic elements of their claim - in this case, a donation and subsequent conduct constituting ingratitude warranting revocation - the matter should proceed to the defense case to allow the court to make a fully informed decision. The plaintiff's own evidence, supported by documentary evidence such as agreements and deeds of transfer, can constitute sufficient evidence to establish a prima facie case.

The court observed that costs de bonis propiis are awarded only in reasonably serious cases where a legal practitioner has exhibited really improper conduct, and such orders are not made lightly against legal practitioners. The court noted that in any event, costs follow the cause. The court also made observations about the evidential significance of the fact that when the plaintiff chased her son from the property in the 1990s, he and his family left for two years - conduct inconsistent with ownership of the property. The court commented that it is in the interest of justice for matters to proceed to the defense case where a prima facie case has been established, in order for the court to make an informed decision.

This case clarifies the application of the prima facie case test for absolution from the instance in Zimbabwean law, particularly in the context of revocation of donations based on ingratitude. It reaffirms that at the close of the plaintiff's case, the court must consider whether there is evidence upon which a reasonable court could or might find for the plaintiff, without resolving issues of credibility or probabilities at that stage. The case also reinforces that costs de bonis propiis against legal practitioners are reserved for cases of really improper conduct and are not awarded lightly. The judgment demonstrates judicial reluctance to terminate proceedings prematurely where there is sufficient evidence to put the defendant to their defense, promoting the interest of justice and full ventilation of disputes.