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Ex Parte Applications, Proceedings Without Notice and Snatching at a Judgment

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

In the case of Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd Anor 2001 (2) ZLR 551…, NDOU J dealt with the question of material non-disclosure, mala fides or dishonesty in urgent applications and how this should impact upon the case of the offending litigant.The learned judge ...
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HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

In this application, the applicants seek an order -(a) Declaring their arrest and continued detention unlawful;(b) Requiring the respondents and all those calling through them or acting on their behalf to permit the applicants access to medical treatment at medical centres of their choice;(c) Directing the respondents or anyone calling ...
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HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

The legal position with regards to referral of a matter brought to court by way of an ex parte application is that such a matter can be determined on the basis of affidavits filed of record as long as there is no dispute of facts. In the event of the existence of dispute of facts, the ...
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HB40-09 : ERICK TANGWARA vs BHEKISIPO FUYANA
Ruled By: CHEDA J

On the 6th day of February 2009, the applicant filed an urgent chamber application whose relief was couched as follows:- “TERMS OF FINAL ORDER SOUGHT The Provisional Order granted in this matter be and is hereby confirmed in the following terms:- 1. The Applicant be and is hereby given possession of a Nissan Maxima Motor vehicle Reg No: AAX 4540. 2. Respondent to ...
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HH119-10 : THE STATE vs SEKAI NDORO
Ruled By: UCHENA J

The application cites her as the applicant. No respondent was cited, though Samatha's father identity is revealed in the applicant's founding affidavit. In her affidavit, the applicant says she stays with Samatha because her father has remarried. There was, therefore, a respondent who should have been given notice of the application. The application was heard in ...
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HB82-13 : ELLINGBARN TRADING (PRIVATE) LIMITED vs ASSISTANT MASTER OF THE HIGH COURT and PEOPLE'S OWN SAVINGS BANK
Ruled By: MUTEMA J

Utmost good faith must be observed by litigants making ex parte applications in placing material facts before the court, so much so that if an order has been made upon an ex parte application and it appears that material facts have been kept back, whether wilfully and mala fide or negligently, which might have ...
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Appealed
SC30-16 : STAND FIVE FOUR NOUGHT (PRIVATE) LIMITED vs SALZMAN ET CIE SA
Ruled By: ZIYAMBI JA, GOWORA JA and UCHENA JA

The appellant avoided having to serve the creditor with the provisional order as required by Rule 247(3)(c) by misleading the court into ordering it to make adverts through the Government Gazette and the Herald which it obviously knew could not inform the respondent - a foreign based creditor. The appellant's argument, on appeal, that this Rule ...
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HH767-15 : IN RE: STAND FIVE FOUR NOUGHT (PVT) LTD (Under Provisional Judicial Management) FOR AN ORDER FOR FINAL JUDICIAL MANAGEMENT vs x
Ruled By: MATHONSI J

It is important that in terms of the founding affidavit, the sole reason for approaching the court for an order for judicial management was that the applicant owed the creditor money secured by a surety mortgage bond which debt it did not want to liquidate after the co-principal debtor became incapacitated. The creditor was ...
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CC13-17 : IN RE: PROSECUTOR-GENERAL OF ZIMBABWE ON HIS CONSTITUTIONAL INDEPENDENCE AND PROTECTION FROM DIRECTION AND CONTROL vs x
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC and UCHENA JCC

The application is ex parte notwithstanding that the very root of this constitutional application are the two cases involving Francis Maramwidze and Telecel Zimbabwe (Pvt) Ltd. It is not known why the applicant did not join these parties, despite their clear interest in the matter, instead of making this application on an ex parte ...
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HH152-15 : IN RE: THE NATIONAL PROSECUTING AUTHORITY (APPLYING WITHOUT NOTICE (EXPARTE) vs x
Ruled By: MANGOTA J

It is strange that the applicant, with full knowledge of the stated fact, filed the present application on the basis of urgency and as an ex parte application. The court went through the applicant's papers and realised that: (a) The refusal of the police to take the vehicle from its lawful controller and possessor in the face of the court ...
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HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS
Ruled By: MUSAKWA J

Certificate of Urgency The impression given is that secretive proceedings were conducted by the court...,.
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HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS
Ruled By: MUSAKWA J

Where a decision is made in default a party may seek rescission. Where a matter is heard ex parte an interested party may anticipate the return date.
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SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: BERE JA

NDOU J made this important observation in the case of Anabus Services (Pvt) Ltd v Minister of Health and Others HB88-03 when he remarked as follows:- “The courts should, in my view, always frown on an order, whether ex parte or not, sought on incomplete information. It should discourage non-disclosure, mala fides, or dishonesty.”
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HB141-16 : REV. CLEMENT NYATHI and REV. JAMES MORRIS and OTHERS vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER IN CHARGE NJUBE POLICE STATION and TONY TSHUMA and ELLIOT NCUBE
Ruled By: MAKONESE J

In terms of Order 32 Rule 242 of the High Court Civil Rules, 1971 - “(1) A chamber application shall be served on all interested parties unless the defendant or respondent, as the case may be, has previously had due notice of the order sought and is in default or unless the applicant reasonably believes one ...
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HB143-16 : SIFISO KHUMALO vs SIHLESENKOSI NDLOVU and ZANELE NDOWA and POLKA EXECUTORS SERVICES PL and OFFICER IN CHARGE LUVEVE POLICE STATION and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

This matter was placed before me on the 25th of May 2016 as an urgent application. I directed that the application be served on all the respondents.
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HB173-16 : SWEET SWEET vs JONATHAN NKANYENZI and BOY DUBE and DOUGLAS NDLOVU and MOFFAT NDLOVU and NTANDO DUBE and PATRICK TSHUMA
Ruled By: MATHONSI J

The applicant was allocated subdivision 1B of subdivision 1 of subdivision B of Umguzaan Block Umguza District in Matabeleland North Province by the acquiring authority under the Government's land reform programme by offer letter dated 29 June 2006. The benefit of a farm of his own was not so sweet because, although he says when ...
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HB73-10 : THABANI MOYO and ALEXANDER MUNYAKA vs HASSBRO PROPERTIES (PVT) LTD and MESSENGER OF COURT
Ruled By: MATHONSI J

This application was brought on an ex parte basis with the obvious intention of hoodwinking the court and snatching a judgment. In an ex parte application, the utmost good faith must be observed by litigants and the courts frown at such applications where they are characterised by malafides and material non-disclosures as in this case. Graspeak Investments ...
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HH559-14 : BASE MINERALS ZIMBABWE (PVT) LTD and PETER VALENTINE vs CHIROSWA MINERALS (PVT) LTD and CHIROSWA SYNDICATE and JOHN GROVES
Ruled By: MAFUSIRE J

In my view, it is the general rule that all chamber applications have to be served on interested parties. Because of the use of the word “…, unless…,” in Rule 242(2) it means those chamber applications listed in paragraphs (a) to (e) are the exceptions….,. In terms of paragraph (a) of Rule 242(1), a matter that ...
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HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets. These cardinal principles seem ...
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HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;“FINAL ORDER SOUGHT1. That the stay of execution is hereby granted.2. Respondents shall pay costs of suit on an attorney-client scale.INTERIM RELIEF GRANTED1. The respondents are interdicted to conduct the attachment of the ...
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HH57-12 : CENTRA (PVT) LTD vs PRALENE MOYAS and DEPUTY SHERIFF, HARARE
Ruled By: BERE J

This matter makes bad reading and its background can be summarised as follows:-After the arbitrator had considered the submissions made by both the applicant and the first respondent, the Arbitrator determined the matter in favour of the first respondent and ordered the applicant to pay the respondent a total sum ...
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SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

After perusing papers filed of record and hearing counsel in this matter we allowed the appeal with costs. We indicated therein that our reasons would follow in due course. These are they.The respondent was formerly employed by the appellant. Sometime in September 2012, the appellant obtained approval from the Ministry ...
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HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

This matter was placed before me under a certificate of urgency on 17 January 2008. I gave directions that it be heard the following day as I deemed it appropriate that the Rules of Court be dispensed with in the interests of achieving justice in this particular matter.At the hearing, ...
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SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

This is an appeal against a judgment of the Labour Court wherein the decision to dismiss the appellant from employment that had been made by the appellant's Managing Director was set aside whilst an earlier decision by the disciplinary committee, that the respondent be issued with a second written warning, ...
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HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

The applicant applied for an order placing the respondent under provisional liquidation in terms of sections 207, 206(f)(g) as read with section 205(c) of the Companies Act [Chapter 24:03].This Court, per MAKONESE J, on 18 September 2014, issued the following provisional order:“1. The respondent, Aquirium Trading (Pvt) Ltd is provisionally ...
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HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.The facts relevant to the resolution of the dispute between the parties are briefly these:The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent ...
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CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

MAKARAU AJCC:IntroductionOn 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.The two applications, filed separately, and on different dates, were brought in ...
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