Patricia Darangwa N.O. v Africa Sun Limited and City of Harare and Master of the High Court

### Preamble
1
HH 400 - 25
HCH 1495/24
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PATRICIA DARANGWA N.O.

versus

AFRICA SUN LIMITED

and

CITY OF HARARE

and

MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE; 7 July 2025

Unopposed chamber application in terms of s 3 of the Titles Registration and Derelict Lands Act [Chapter 20:20]

K. Mutyasira for the applicant

DUBE-BANDA J:

This is a chamber application in terms of s 3 of the Titles Registration and Derelict Lands Act [Chapter 20:20]. The applicant seeks a provisional order calling on any interested persons to show cause, if any, why:

The City of Harare should not be directed in terms of the Title Registration and Derelict Lands Act [Chapter 20:20], to register stand 2332 Marlborough Township, Harare in the name of Daniel Malekano.

The Sheriff of Zimbabwe should not be directed to sign all the documents ne necessary to effect registration of the property in favour of the estate of the late Daniel Malekano.

The basis of the application is that the applicant is the executor of the estate of Daniel Malekano (“Malekano or deceased”). It is averred that during his lifetime he was employed as a senior manager by Zimsun (Private) Limited which was later rebranded to Africa Sun Limited. He died on 21 January 2002. It is contended that during his lifetime he acquired stand number 2332 Marlborough Township (“the stand or property”) from his employer. It is contended further that he failed to register the stand in his name because of the loss of all documentation relating to it. It is averred that as part of his conditions of service he bought the stand through the employer’s housing scheme in 1994 and built a three bedroomed house. At the time of his death title deeds of the stand had not yet been processed. The deceased is said to have lived in the property until his death, and no other person has claimed the property.

The applicant contends that on 29 August 2022 the Master of the High Court issued a consent in terms of s 120 of the Administration of Estates Act [Chapter 6:01] for the sale of the stand. On 26 July 2023 the applicant entered into an agreement of sale with a third party. The applicant further avers that when she approached the City of Harare to effect cession of the stand into the name of the purchaser, she was advised that there were no documents to support the cession. The applicant avers that she approached the Africa Sun Limited and was advised that it had no documents relating to the stand.

This application was initially allocated to Kwenda J, who on 24 April 2024 raised several queries, being:

“I have no proof that the stand exists; who currently owns it; who has title over it; who approved the structures thereat; where is the proof of the acquisition of the property by the deceased; where is the proof of the communisation with Africa Sun (Pvt) Ltd?”

As a result of the queries raised by Kwenda J, on 9 October 2024 the applicant’s legal practitioners wrote a letter to Delta head Office enquiring about the property. The point was made that the deceased purchased the property from Zimsun (Private) Limited, however the City of Harare does not have the paper trail to prove that the deceased owned the property. On 24 October 2024 Delta Beverages wrote to the applicant’s legal practitioners and stated that Delta Corporation Limited did not sell stands to individuals, it was only a facilitator for the employees to get mortgages from CABS. The company said due to the passage of time it no longer had records for the scheme. A similar letter was addressed to Scanlen & Holderness who it is said was doing the conveyancing for the scheme. Scanlen & Holderness said it checked its records and files and did not have any record or reference to the stand in issue.

On the matter being allocated to me, I invited the applicant’s legal practitioner to chambers to seek clarity about the queries raised by Kwenda J. I directed counsel to bring all available evidence and file a supplementary affidavit covering all the issues raised by Kwenda J. I wanted evidence that the stand exists at law and that the deceased acquired a just and lawful right to the stand. In answer to the directive, Mr Mutyasira, counsel for the applicant deposed to a supplementary affidavit, which in the main regurgitated the information already on record. In addition, counsel averred that the stand has been proved to exist, because of the following facts: there is a building plan approved by the City of Harare in the name of Delta corporation; the rates account number 80068457 is in deceased name, which he paid in his lifetime; confirmation by the first respondent that the deceased bought the property through a scheme from Delta Corporation and that it would not oppose the relief sought. Counsel further averred that the deceased lived at the property until his death, and that his family remained in occupation of the property for over twenty years, and that the buyer has taken occupation without any claim on the property. Counsel contended that these facts constitute prima facie proof that the deceased owned the property.

Mr Mutyasira seemed to argue that since the application is unopposed and the applicant seeks a provisional order, the court may merely grant the order sought, and whosoever has interests in the matter will present his or her case on the return date.  I cautioned counsel that a provisional order is not for the mere asking, a case must be made for the order sought by a litigant. I informed him that a court may in appropriate circumstances dismiss an application for a provisional order.

It is trite that a provisional order is established on a prima facie basis because it is a caretaker temporary order pending the determination of the matter on the return date. See Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S). What is prima facie proof?  Prima facie proof implies that proof to the contrary is still possible. In the absence of proof to the contrary, prima facie proof will, generally speaking, become conclusive proof.  See Ex parte Minister of Justice: In re R v Jacobson and Levy 1931 AD 466 478. In casu, the applicant must show that it has established a prima facie case for the provisional order that she is seeking.

The Titles Registration and Derelict Lands Act [Chapter 20:20] (“the Act”) is the legislation that deals with the registration of titles in certain cases, and the disposal of certain derelict lands in Zimbabwe. Section 3 of the Act deals with persons or entities who purchased land or that acquired the just and lawful right to the ownership of any immovable property in Zimbabwe by prescription or by virtue of any contract or transaction or in any other manner, and or certain property but failed to register such title in their names by reason of death, insanity or insolvency of the person in whose name the property is registered. It states that such people may apply to the High Court to order registration of title into their own names.

At provisional order stage, the applicant must establish prima facie that stand 2332 Marlborough Township, Harare exist, and that the deceased acquired a just and lawful right to ownership of the stand in question. Therefore, the first inquiry is whether there is evidence that a stand answering to number 2332 Marlborough Township, Harare does exist. It is apparent from the founding affidavit, that the City of Harare has no documentation in respect of stand 2332. In his supplementary affidavit, counsel purported to attach a building plan said to have been approved by the City of Harare. The document attached is illegible. In addition, what is referred to as the rates bill in also illegible. It is trite that a document that is adduced in evidence for the truthfulness of its contents must be legible. Otherwise, if it is of poor quality and illegible it serves no useful purpose. It is for these reasons that the building plan and rates bill are of no consequence.

What is required at the provisional order is proof that the stand 2332 Marlborough Township, Harare exist. The best evidence to show that the stand exist is confirmation from the local authority or the Office of the Surveyor-General. There is no such evidence before court. In the circumstances, there is no evidence that at law stand 2332 Marlborough exists.

In addition, in any event, even if the stand exists, at this stage there must be prima facie proof that the deceased acquired a just and lawful ownership of the stand. To answer this requirement counsel in his supplementary affidavit avers that: “There is confirmation by the first respondent that the deceased bought the property through a scheme from Delta Corporation.” This is an incorrect characterisation of the position of Delta Corporation, because in its letter dated 24 October 2024 it says “We can confirm that Delta Corporation Limited did not sell stands to individuals. The organisation was only a facilitator for employees to get mortgages from CABS and each division kept their own records.” In addition, its letter dated 8 October 2024 Scanlen & Holderness says it has no record of the stand in issue. Therefore, to say Delta Corporation confirmed that the deceased purchased the stand through a scheme is incorrect. In the circumstances, there is no prima facie proof that the deceased acquired a just and lawful right to ownership of the stand.

Furthermore, it is rather strange that the evidence that the deceased lived in the property until his death and that his family remained in occupation of the property for over twenty years thereafter comes from Mr Mutyasira. As a general rule, a legal practitioner cannot depose to an affidavit on the merits of the matter based on hearsay evidence. See Baron v Baron and 2 others (HB 92 of 2021; HC 1665 of 2020) [2021] ZWBHC 92 (3 June 2021). In Mandaza t/a Induna Development Projects v Mzilikazi Investments (Pvt) Ltd (HB 23 of 2007) [2007] ZWBHC 23 (7 February 2007). Counsel does not disclose the source of the evidence. He does not say why this evidence was not adduced from a family member who saw the deceased staying at the property until his death, and who stayed at the property for twenty years thereafter. From the mouth of Mr Mutyasira such evidence is inadmissible hearsay.

In summary, there is no prima facie proof that stand 2332 Marlborough Township, Harare does exist. In any event, even if it exists, there is no prima facie proof that the deceased acquired a just and lawful right to ownership of the stand in question. In other words, there is no proof, such that in the absence of rebuttal can become clear proof to direct the City of Harare to register stand 2332 Marlborough Township, Harare in the name of Daniel Malekano nor direct the Sheriff to sign all the documents necessary to effect registration of the property in favour of the estate of the late Daniel Malekano. In addition, there is no admissible evidence that the deceased stayed at the property before his death and that his family lived at the property for twenty years after his death. It is for these reasons that this application cannot succeed at this stage.

In view of the peculiar facts of this matter, I have decided not to dismiss this application but strike it off the roll. My view is that the absence of evidence to establish a prima facie case renders the application fatally defective and liable to be struck off the roll than to be dismissed.

In the result, I order as follows:

The application is struck off the roll with no order of costs.

Dube – Banda J: ……………………………………….

Mubangwa and Partners, applicant’s legal practitioners