Juliet Nhliziyo (N.O) and Estate Late Harold Nhliziyo v Nokuthula Moyo and Others

The first plaintiff was the Executrix Dative in the estate of the late Harold Nhliziyo who died on 17 December 2010. Harold Nhliziyo purchased stand 8566 Pumula East, Bulawayo on 14 February 1986. In 1993, he transferred the property into the names of his son Preece Nhliziyo. Harold Nhliziyo was married three times - his first marriage ended in divorce, his second wife predeceased him, and at the time of his death in 2010 he was married to the first plaintiff (married in 2005). They had two children together born in 1998 and 2002. Preece Nhliziyo died in 2004 before his father. The first defendant was the guardian of Thembelani Adrian Nhliziyo, a minor child and beneficiary in Preece's estate. The first plaintiff claimed that Harold transferred the property to Preece temporarily to prevent his first wife from claiming it in divorce proceedings, and that Harold intended the property to ultimately belong to his estate and benefit all his children. The first plaintiff sought a declaration that the property belonged to Harold's estate rather than Preece's estate.

• Whether house number 8566 Pumula East Township, Bulawayo, registered in the names of the late Preece Nhliziyo should be declared as being owned by the estate of the late Harold Nhliziyo
• Whether the plaintiff established a prima facie case at the close of her case to avoid absolution from the instance
• Whether the test for absolution from the instance was met, namely whether there was evidence upon which a reasonable court could find for the plaintiff

1. First defendant is absolved from the instance. 2. The first plaintiff shall bear the costs of suit.

At the close of a plaintiff's case in an application for absolution from the instance, the court must determine whether there is evidence upon which a reasonable court may find for the plaintiff. The court may not at this stage make findings on credibility or determine the matter on probabilities. Where a plaintiff's evidence is entirely based on hearsay, departs significantly from the pleadings, and fails to explain critical gaps (such as why the deceased failed to regularize property ownership over an 18-year period if he truly intended a different outcome), there is no basis upon which a reasonable court could find for the plaintiff. Registered title to immovable property cannot be challenged solely on the basis of unverified assertions about the deceased's alleged intentions, particularly where those assertions are contradicted by the timing of events and the deceased's subsequent conduct.

The court observed that the first plaintiff conceded she inherited a rural home with a seven-roomed house at Filabusi, eighteen head of cattle, a motor vehicle and household goods from Harold Nhliziyo's estate, suggesting she was not left without provision. The court noted there was a reasonable possibility that the first plaintiff was misled by the late Harold Nhliziyo about his intentions regarding the property. The court also commented that if Harold truly intended to provide for his children with the first plaintiff (born 1998 and 2002), he would have had ample time to regularize the ownership before his death in 2011.

This case illustrates the application of the test for absolution from the instance in Zimbabwean civil procedure. It demonstrates that at the close of the plaintiff's case, the court must assess whether there is evidence upon which a reasonable court could find for the plaintiff, without making findings on credibility or probabilities at that stage. The case also highlights the importance of consistency between pleadings and evidence, the dangers of relying solely on hearsay evidence, and the principle that registered title to property creates strong presumptions of ownership that require clear evidence to rebut. It reinforces that claims to override registered property rights based on alleged informal arrangements require cogent proof.