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Unjust Enrichment re: Illegal Contracts, Ex Turpi Causa and In Pari Delicto Rules, Criminal Liability & Just Cause Conduct

HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

The contract was not illegal as it was concluded with a pretium in local currency...what was unlawful was the payment in foreign currency. There are two rules which are of general application: The first is that an illegal agreement which has not yet been performed, either in whole or in part, will never be enforced. This ...
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HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

In the present matter, the illegal agreement has been performed. The plaintiffs' delivered the property to the second defendant authorising...to pass cession to him on...The ex turpi causa maxim does not apply...Rather, the in pari delicto rule applies...The property was delivered in pursuant to an illegal payment agreement. The parties are equally in the wrong. ...
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

That the conclusion of a lease agreement for the use of premises contrary to municipal zoning regulations is illegal was set out in. where it was stated that:- "In this case (where a dwelling was used as commercial premises in contravention of both the Commercial Premises (Rent) Regulations SI 676/83 and the Rent Regulations SI ...
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

The definition of and the jurispudential justification for relaxing the in pari delicto maxim is set out as follows: "It is not open to the parties to negotiate terms which are clearly illegal and then to turn around and invite the court to recognize or enforce their illegal activity. I would, therefore, hold that if the ...
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

I do not find the illegality of the lease exempted the first defendant from paying rent and operating costs once it decided to remain in situ after discovering the illegality.It chose to remain in occupation and benefit from such occupation and use of associated services.
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HH17-09 : TARISAYI ZVOMA vs WATERSHED COLLEGE (represented by Joseph Goromonzi, Chairman of the Board of Governors)
Ruled By: HUNGWE J

She agreed to be bound by such decisions as the college authorities may make on her behalf. In any event, she contracted herself to abide by the rules and regulations of the college. This is reflected in the manner in which she, up until this dispute, had been conducting herself. She is party to ...
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HH56-10 : BEKI SIBANDA vs ELISHA K MUSHAPAIDZE
Ruled By: MAKARAU JP

Assuming that I have erred in refusing to hold the letter as a liquid document, I still would have declined provisional sentence in this matter on another basis. From the correspondence that the parties attached to the pleadings in this matter, it is common cause that the transaction giving rise to the dispute between the parties was ...
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HH120-09 : EDSON MUDZIVO AND EMILY MUDZIVO vs NOREST NYAMAKOPE
Ruled By: MAKARAU JP

At the hearing of the application, the issue that took centre stage was the illegality of the contract, and whether the applicants could seek refund of the purchase price of the property, a judgment that will sound in foreign currency. The law that applies to illegal contracts appears to me to be quite clear. Two rules are ...
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HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

Two rules are of general application to illegal agreements. They are the ex turpi causa non oritur actio and the in pari delicto potir est conditio possidentis rules. Where the contract has not been performed, the courts will not compel performance by either party to the contract. This rule is absolute and admits of no exceptions. Where the ...
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HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

It is now settled law that “an illegal agreement which has not yet been performed, either in whole or in part, will never be enforced” by the courts. Per GUBBAY JA..., in Dube v Khumalo 1986 (2) ZLR 103..., in terms of the maxim ex turpi non aritur actio – a rule which is ...
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HH05-10 : JACKSON MUGUTI vs UBOXIT WORLDWIDE (PVT) LTD AND TWO OTHERS
Ruled By: MAKARAU JP

The issue that raised my concern in the above matter is the legality of the original contract of services. It is not in dispute that the parties agreed to transact using “foreign currency”, then, as a medium of exchange. The plaintiff accepts that this was illegal. He, however, pleads with me to relax the rule against ...
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HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO
Ruled By: PATEL J

Finally, counsel for the plaintiff contends that even if the original transaction between the parties is found to be contrary to statute the court has a discretion to enforce the Agreement despite its illegality in order to avoid the unjust enrichment of one party at the expense of the other. As I have recently held in ...
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HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

The Legal Position The issue before me is not a novel one as this court has had occasion to deal with similar situations in the past. See the following cases for guidance: Wycliff Matsika v Jumvea Zimbabwe Limited and Sydney Mpofu HH09-03; and Lloyd Gambiza v Pikirai Taziva HH109-08. In the Wycliff Matsika v Jumvea Zimbabwe Limited ...
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HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

In or about January 2006, the applicant and the first respondent entered into an Agreement of Sale in respect of certain immovable property called Stand Number 584 Greystone Park Township of Greystone. In terms of the written agreement, the purchase price for the property was the sum of $400,000,000= and this was to be paid in ...
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HH155-10 : BLESSMORE CHANAKIRA vs TAWANDA MAPFUMO and W.R. GABRAITH
Ruled By: CHIWESHE JP

On 29 October 2008 the applicant and the first respondent entered into a written agreement in terms of which the applicant advanced to the first respondent the sum of one hundred thousand United States dollars (the equivalent then of two hundred Old Mutual Ordinary Shares listed on the Stock Exchange). As a return on this ...
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HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

The plaintiff, a former financial director of the defendant company, filed summons on 8 July 2009 seeking payment of the capital sum of US$72,334 and interest at the rate of 10% per annum from the date when the amount fell due to the date of the issue of summons in ...
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HH167-10 : TUSILAGO (PRIVATE) LIMITED vs HOMELINK (PRIVATE) LIMITED
Ruled By: MAKONI J

Counsel for the plaintiff submitted that in the event that the court finds that the Agreement violated the Exchange Control Regulations, S.I.109 of 1996, the court has a discretion to relax the effect of the maxim in pari delicto est conditio possedenis and not deny judicial assistance to a party who parts with money ...
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SC04-15 : AGSON MAFUTA CHIOZA vs SMOKING WILLIAMS SIZIBA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

During the week ending 29 December 2006, the Herald newspaper carried an advertisement inserted by Murenga Estate Agents (“Murenga”) wherein Stand No.1759 of 323 Midlands, Waterfalls, was being advertised for sale at a purchase price of twenty five million dollars. The respondent was interested in the property and visited Murenga Estate Agents's offices where he ...
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HH274-10 : FARAI CHITSINDE and NYASHA CHITSINDE vs STANNY MUSA and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

In this application, the relief sought is as follows: “It is ordered that: 1. Number 57 Borrowdale Township 6 of Lot 7b of Borrowdale, also known as Number 9 Hunt Road Borrowdale within five (5) days of granting of this order. 2. The first respondent shall make transfer of Stand Number 57 Borrowdale Township 6 of Lot 7b of ...
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HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

The plaintiff in this matter issued summons out of this court claiming a decree of divorce, custody of the minor children of the marriage, and other ancillary relief.Four issues were referred to trial in terms of a joint pre-trial conference minute filed by the parties on 27 November 2008. The ...
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HH60-13 : IMMACULATE BLESSING MABIZA vs IVON NGWIRA
Ruled By: MATHONSI J

I also take judicial notice of the fact that the defendant refunded the part payment of the purchase price thereby disentitling herself from reliance on the illegality argument.
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HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

The second point deals with illegality. It is their argument that the transaction which involved the agreement to pay the applicant in the United States dollars was illegal. Sections (4) and (10) of the Exchange Control Statutory Instrument 109 of 1996 make it clear that such transaction is illegal unless authorised by the Exchange Control Authority. ...
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HHH299-14 : FIDELIS CHAUKE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

The appellant was charged with, and convicted of, the crime of theft as defined in section 113(1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. The State allegations were that, on 17 November 2012, and at Subdivision 5, Turkey Heart Farm, Lot 4 in Triangle, the appellant took the sum of $54,466=73 which ...
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HB201-11 : CABAT TRADE & FINANCE (PTY) LTD and SECURITY MILLS (PTY) LTD vs THE MOVEMENT FOR DEMOCRATIC CHANGE (MDC-T)
Ruled By: KAMOCHA J

The plaintiffs are seeking to enforce an illegal agreement which is prohibited by law by the maxim ex turpi causa non oritur actio. This maxim, admits of no exception. In Dube v Khumalo 1986 (2) ZLR 103 (S), the Supreme Court held…, that:- “The first rule is that an illegal agreement which has not yet been ...
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HB201-11 : CABAT TRADE & FINANCE (PTY) LTD and SECURITY MILLS (PTY) LTD vs THE MOVEMENT FOR DEMOCRATIC CHANGE (MDC-T)
Ruled By: KAMOCHA J

The plaintiffs also submitted that estoppel operated against the respondent in this matter. The submission is also devoid of any merit as the plaintiffs are seeking to enforce a contract prohibited by law. See York Estates Ltd v Wareham 1950 (1) SA 125 (SR)…, where the court stated that it was bound to refuse to enforce ...
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HH318-14 : NOMSA CHIKWEZVERO vs TENDAI CHINAMORA
Ruled By: MWAYERA J

It was clear from Mr Tshuma that the Ministry never sanctioned the illegal allocations and that the plaintiff is the legal allotee of the Stand in question. The defendant, Tendai Chinhomora, in turn, recounted how he went to the Ministry's offices in 1998 and then he bought the Stand in 1999. He referred the court to his ...
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SC49-14 : BAREND VAN WYK vs TARCON (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

EXCHANGE CONTROL APPROVAL The respondent contends that the appellant's claim is for payments in foreign currency that required Exchange Control approval at the relevant time and that that there is no proof that any such approval was ever obtained. Therefore, they are entitled to resist any claim for payments that were not duly authorized. Section 11(1)(a) of ...
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HHB85-16 : THE STATE vs MVURACHENA TADZEMBWA
Ruled By: MATHONSI J and MAKONESE J

There is something which the court did not address at all. It is that the accused person is said to be “a foreign currency exchange dealer.” The question which arises is whether he is a legal dealer or illegal one. This was not canvassed at all, but, considering that the accused person ...
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SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

In Guoxing Gong v Mayor Logistics (Pvt) Ltd SC02-17..., this Court made it abundantly clear that anything done contrary to the law is a nullity….,. The law and the courts cannot protect an illegality regardless of the colour, nationality or race of the perpetrator.
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HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP
Ruled By: CHIGUMBA J

Mr Jonathan Samkange, who testified on behalf of the plaintiff, said the parties' transaction also violated Exchange Control Regulations which were in force at the time….,. The Exchange Control defence is not available to the defendant as it was a defence based on the original cause of action which had been extinguished when the compromise was reached.
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HH134-15 : SHEM CHIVHUMBA MLAMBO vs ISAAC MUTAMBI PHIRI CHIKATA
Ruled By: ZHOU J

The brief background to the matter is as follows: On 11 March 2013 the plaintiff instituted an action against the defendant. The relief claimed, as set out in the summons, is as follows: “(a) Delivery (of) one acre of land in Gweru Town, or, alternatively, payment in the sum of US$52,000= being current market value thereof together with interest ...
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SC26-18 : T. M. SUPERMARKETS (PRIVATE) LIMITED vs ITAYI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI
Ruled By: GARWE JA, GOWORA JA and BERE AJA

Once the court a quo found that the performance-based bonus scheme was illegal, it should not have upheld an order awarding back-pay based on an illegal scheme. A finding that an arrangement is turpious is incompatible with an order enforcing the same as was done in casu by requiring that the employees be paid in terms of an allegedly unlawful ...
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HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

I believe the year 1989 is a good starting point for the story of one John Chidyiwa, the Managing Director of the plaintiff, and the defendant. Then, the two knew each other as work-mates in the Department of Customs and Excise (as it was then known). In or about 1993, the two became quite close friends. ...
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HH212-18 : HOSEA OZIAH NCUBE vs SIMBARASHE MUPINGA
Ruled By: CHAREWA J

Courts are loathe to be used by parties to perpetuate clearly illegal activities.
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SC07-20 : FARAI BWATIKONA ZIZHOU vs THE TAXING OFFICER and RITA MARQUE MBATHA
Ruled By: MAKARAU JA

This is a review of taxation in terms of Rule 56 of the Supreme Court Rules, 2018.The Rule provides that any party aggrieved by the taxation of a bill of costs shall give notice of review setting out his or her grounds of objection. Thereafter, the matter shall be set ...
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Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

This is an appeal against the judgment of the High Court which dismissed the appellant's application for a declaratory order in terms of section 14 of the High Court Act [Chapter 7:06] on the basis that the appellant lacked the requisite locus standi and had no legal right to protect.FACTSThe ...
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HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MWAYERA J

After considering the papers filed of record, inclusive of heads of argument and hearing oral evidence from the applicant and the respondents' counsels, I gave oral reasons for my disposition; I indicated that written reasons would be availed in due course on why I effectively dismissed the application with costs ...
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HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.I heard the ...
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HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS
Ruled By: DUBE J

This case concerns a sale and transfer of property carried out contrary to a court order.It is trite law that a thing done contrary to the direct prohibition of a court order is void and is of no legal effect. Such a thing is regarded as never having been done. ...
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HHH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE
Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

The five accused persons were charged with criminal abuse of duty as public officers as defined in section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].The allegations against them were that between 3-23 May 2017, at ZINARA, the five accused had unlawfully, and in common purpose with ...
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Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.The immovable property, described as Stand 382 Good Hope Township of Subdivision ...
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HHH136-11 : THE STATE vs ELTON MANGOMA
Ruled By: BHUNU J and ASSESSORS: CHIVANDA and MHANDU

The accused is the Minister of Energy and Power Development. In the main Count he is charged with criminal abuse of duty as a public officer in contravention of section 174(10(a) as read with section 174(2) of the Criminal Law Codification and Reform Act [Chapter 9:23].He is alleged, during the ...
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Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

Section 210(4) of the Urban Councils Act [Chapter 29:15] requires that any procurement of goods, materials, or services be subject to recommendations of the Procurement Board. The section provides as follows:“A municipal council shall not procure any goods, materials, or services unless its municipal procurement board has made recommendations to ...
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HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

I set HC6264/21 down for hearing. The hearing was scheduled for 20 June 2022. At the hearing, the applicant, which was the respondent in the case, raised a preliminary point. It did so through counsel.Its in limine matter was that the first respondent (“the respondent”) which was the applicant in ...
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HB60-15 : JABULANI NCUBE vs INNOCENT NYATHI
Ruled By: MOYO J

This is an application for condonation of the late filing of an application for rescission of judgment.The parties have been engaged in protracted litigation dating far back as 2006.The parties, in 2006, entered into a loan agreement. Part of the terms of the loan agreement were that:“That the loanee offers ...
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HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J

On 1 March 2007, the plaintiff issued summons out of this court for an order as follows:“(a) An order declaring the agreement, Annexure A to the particulars of the claim, dated 18 December 2006, to have been validly cancelled and incapable of performance.(b) An order for the return to the ...
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HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.The first application, Case No. HC5186/05, concerns an order for specific performance while ...
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HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O.
Ruled By: CHAREWA J

This is an application to compel transfer consequent upon an agreement of sale of “proposed subdivision B of Lot 369 Highlands Estate of Welmoed measuring approximately 2033 square metres” entered into between the applicant and the first respondent in January 2015.The FactsIt is not in dispute, that, the parties entered ...
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HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O.
Ruled By: CHAREWA J

This is an application to compel transfer consequent upon an agreement of sale of “proposed subdivision B of Lot 369 Highlands Estate of Welmoed measuring approximately 2033 square metres” entered into between the applicant and the first respondent in January 2015.The FactsIt is not in dispute, that, the parties entered ...
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