Patricia Darangwa N.O. v Africa Sun Limited and Others

The applicant was the executor of the estate of Daniel Malekano who died on 21 January 2002. During his lifetime, the deceased was employed as a senior manager by Zimsun (Private) Limited (later rebranded Africa Sun Limited). The applicant alleged that in 1994, the deceased acquired stand number 2332 Marlborough Township through his employer's housing scheme and built a three-bedroomed house on it. Title deeds had not been processed before his death. The applicant obtained Master's consent on 29 August 2022 to sell the property and entered into an agreement of sale on 26 July 2023. When attempting to cede the stand to the purchaser, the City of Harare advised there were no documents supporting the transaction. Africa Sun Limited also had no documents relating to the stand. Delta Corporation Limited confirmed it did not sell stands to individuals but only facilitated mortgages for employees through CABS, and had no records of the scheme due to passage of time. Scanlen & Holderness, the conveyancers for the scheme, also had no records of the stand.

• Whether the applicant established prima facie proof that stand 2332 Marlborough Township, Harare exists at law
• Whether the applicant established prima facie proof that the deceased acquired a just and lawful right to ownership of the stand as required under section 3 of the Titles Registration and Derelict Lands Act
• Whether a legal practitioner can depose to an affidavit on the merits based on hearsay evidence
• What constitutes sufficient prima facie proof for granting a provisional order under section 3 of the Titles Registration and Derelict Lands Act

The application was struck off the roll with no order as to costs.

To obtain a provisional order under section 3 of the Titles Registration and Derelict Lands Act, an applicant must establish prima facie proof that: (1) the immovable property in question exists at law, best proven by confirmation from the local authority or the Surveyor-General; and (2) the deceased acquired a just and lawful right to ownership of the property. Prima facie proof means proof that, in the absence of rebuttal, can become conclusive proof. A provisional order is not granted merely because an application is unopposed; a proper case must be made out. Documents adduced in evidence for the truthfulness of their contents must be legible, otherwise they serve no useful purpose. As a general rule, a legal practitioner cannot depose to an affidavit on the merits of a matter based on hearsay evidence without disclosing the source of such evidence.

The court distinguished between dismissing an application and striking it off the roll, noting that in peculiar circumstances where the absence of evidence renders an application fatally defective, it may be more appropriate to strike off the application rather than dismiss it. This suggests the court left open the possibility for the applicant to remedy the defects and bring a fresh application with proper evidence. The court also made observations about what constitutes proper evidence in property matters, emphasizing the need for documentary proof from official sources rather than relying on assertions, illegible documents, or hearsay testimony from legal practitioners.

This case is significant in Zimbabwean property law as it clarifies the evidentiary requirements for obtaining provisional orders under section 3 of the Titles Registration and Derelict Lands Act. It emphasizes that even at the provisional order stage, applicants must establish a prima facie case with proper admissible evidence. The judgment reinforces important principles about: (1) the necessity of proving the existence of immovable property through proper documentation from authorities like local councils or the Surveyor-General; (2) the requirement to prove a just and lawful right to ownership with concrete evidence beyond mere assertion; (3) the inadmissibility of hearsay evidence from legal practitioners in affidavits on the merits; and (4) the distinction between striking off and dismissal of applications. It serves as a cautionary tale about the dangers of relying on illegible documents and hearsay evidence in property registration matters.