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Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and ...
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HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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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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HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

The applicant is a Trust duly registered in terms of the laws of this country whereas the fifth respondent is a limited liability company registered in terms of the laws of this country. The first to fourth respondents are sole shareholders and directors in the fifth respondent, Saltana Enterprises (Pvt) ...
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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:“1. An order declaring that:(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing ...
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HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July ...
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HH89-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURH OF THE PROVINCE OF CENTRAL AFRICA AND CHAD GANDIYA
Ruled By: BHUNU J

The ordination has prompted the applicant to lodge this urgent application before me. The application, in the main, seeks to set aside the second respondent's appointment on the basis that the noting of the appeal in the Supreme Court was a nullity in that it was incompetent, fraught with serious procedural irregularities. The applicant has mounted a ...
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SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicants seek to set aside an order by HUNGWE J. The order sought to be set aside provides that the learned Judge's judgment will not be suspended by the noting of an appeal. The order of the court a quo provides as ...
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SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.The factual circumstances of this matter are common cause.The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He ...
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SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:1. The appeal is allowed with costs.2. The judgment of the Labour Court is hereby set aside and substituted as follows:(i) The appeal is dismissed with costs.(ii) The appellant shall reinstate the respondent to ...
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SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).On 25 July 2005, SANDURA JA, sitting with ...
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HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

The plaintiff sued the defendant by way of summons for the following relief;(a) An order evicting the defendant and all those claiming occupation through him from the plaintiff's premises known as Number 20 Saint Stephens Road, Meyrick Park, Harare;(b) Holding over damages in the sum of $500 per month with ...
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HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.The applicants challenge the validity ...
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SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of ...
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HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

On 24 March 2003, three of the beneficiaries of the estate of the late Job Bruno Kadengu filed this application seeking the variation of certain clauses of the Last Will and Testament of the testator.The application was served on the respondents on 2nd April 2003, 17 April 2003, and 16 ...
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HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:(1) That the President of the Apostolic Faith Mission of Africa International is Reverend ...
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HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

This is an application for stay of execution.The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed ...
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HH32-08 : LOVENESS SENGEREDO vs ERIC CABLE N.O.
Ruled By: MAKARAU JP

On 12 September 2006, the applicant obtained an order from this court compelling Africa International Removals to pay her the sum of $4,441,841=67 together with interest thereon; to deliver to her vehicle and a mobile phone together with a line for use in that phone.A warrant of execution was taken ...
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HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 ...
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Appealed
SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

This is an appeal against the whole judgment of the High Court setting aside the appointment of the appellant to the Marange chieftainship in 2016. It is a matter concerning the procedure to be followed in the appointment of chiefs in Zimbabwe pursuant to the advent of the current Constitution ...
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SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court granting an application for specific performance lodged by the first respondent against the appellants. Apart from granting the relief sought, including the payment of damages in the alternative, the court a quo also ordered the appellants to pay costs ...
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HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

This matter was originally filed as court application for contempt of court and ancillary relief. BERE J…, referred the matter to trial....,.The contempt of court proceedings were instituted as a court application which BERE J…, referred to trial for resolution; with the court application and founding affidavit standing as the ...
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HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...
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HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE
Ruled By: CHEDA AJ

In preparation for trial, the plaintiff filed a synopsis of evidence in which he said he would lead evidence to show that on the 13th day of July 2010, at the intersection of 3rd Avenue and Herbert Chitepo Street, in Bulawayo, the first defendant's haulage truck rammed into the plaintiff's ...
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SC07-22 : POLICE SERVICE COMMISSION and THE COMMISSIONER GENERAL OF POLICE vs DHERERAI MANYONI
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against part of a judgment of the High Court, dated 17 July 2019, in which the court a quo set aside the respondents dismissal from the Police Service Commission and ordered his reinstatement without loss of salary and benefits.After hearing submissions from both the appellants' counsel ...
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HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

This matter was initiated as a court application by the present plaintiff. Upon hearing argument, the court ordered that the papers filed in the court application stand as pleadings and the matter proceed to discovery in the normal way.The papers show that, at the pre-trial conference stage, four issues were ...
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HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

In this consolidated action, each plaintiff claims payment of salary arrears and allowances from the defendant.On 22 January 2013, KUDYA J, who dealt with the pre-trial conference relating to the parties herein issued the following order:“IT ORDERED THAT:1. The parties have failed to reach a settlement.2. The present matter, HC315/12, ...
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HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

This is a matter in which I would have considered awarding costs against Norman Mugiya de bonis propriis if the respondents had appeared.However, although I had directed the applicant to serve the notice of set down upon the respondents owing to the exigency of the application, which was filed a ...
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SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...
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HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD
Ruled By: MAFUSIRE J

The trial in this matter was held up by a preliminary argument on a special plea. The central question was whether or not the trial should be stayed and the matter referred to arbitration in terms of an arbitration clause in the contract between the parties upon which the plaintiff ...
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SC16-21 : GML EXPLOSIVE (PRIVATE) LIMITED vs LACKSON GONO AND 29 OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and MATHONSI JA

On 15 August 2019, the High Court (the court a quo) issued a provisional order for the provisional winding up of the appellant at the instance of the respondents who are its former employees. The court a quo confirmed the provisional liquidation order by judgment delivered on 20 November 2019.This ...
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SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.FACTSThe details of this case can be summarised as follows:The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment ...
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HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

The applicant has filed an application for maintenance in terms of the Wills Act [Chapter 6:06]. In particular, reliance was placed on the provisions of section 18 of the Wills Act. The relief sought by the applicant in the Draft Order is as follows:“IT IS ORDERED THAT:The estate of the ...
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SC21-21 : ZIMBABWE UNITED PASSENGER COMPANY vs BEAULAR MASHINGE
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

On 24 February 2017, the Labour Court granted, with no order as to costs, an application for review brought by the respondent against the appellant. It thereby set aside the decision of the appellant to dismiss the respondent whom it reinstated with no loss of salary and benefits with effect ...
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HH710-16 : TENDAI MANGWIRO vs DR IGNATIUS CHOMBO
Ruled By: TSANGA J

A court application for contempt of court was brought before me on 9 November 2016 in motion court. I granted the application and herein I give my reasons for so doing against the backdrop of a brief narrative of the history of the matter which puts the order in context.Contextual ...
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HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be ...
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HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

This is an opposed application in which the applicants seek that the respondent, Econet Wireless (Private) Limited (“Econet”), be fined for contempt of a court of an order granted on 4 February 2011 by consent of both parties.In terms of the order that was granted, Econet was to desist forthwith ...
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Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

The rule on onus of proof was pronounced in ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17 where the Court stated that:“The cardinal rule on onus is that a person who claims something from another in a Court of law has to satisfy the Court that he is entitled to ...
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HB09-15 : LEAST SUPPLIES (PVT) LTD t/a L.S. CELLULAR and L.S. CAPITAL vs T.I.B. INSURANCE BROKERS and HERITAGE INSURANCE COMPANY
Ruled By: TAKUVA J

This is an application for joinder of parties in terms of Order 13 Rule 87(2)(b) of the High Court Rules 1971.The facts are simple and largely undisputed. They are:The applicant is involved in the business of buying and selling cell phones and cell phone accessories which it normally imports from ...
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SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes ...
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HB11-15 : CHARITY GONYORA (In her application for the guardianship of Clifford Mayizoni Mwale ) vs X
Ruled By: MUTEMA J

On 12 November 2014, the Provincial Magistrate issued the applicant, Charity Gonyora, with a certificate of guardianship in respect of the minor child, Clifford Mayizoni Mwale (male born 7 July 1998).In the application for the guardianship in the magistrates' Juvenile Court, the applicant was represented by an organisation called Justice ...
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HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

This is an application for absolution from the instance.The first defendant contends that at the close of the plaintiff's case the court should find that the first plaintiff has hopelessly failed to place any evidence before the court upon which a reasonable court may find for the first plaintiff.A joint ...
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SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

The parties herein are engaged in various wrangles in the Magistrates Court and the High Court. The wrangles have seen the parties file complaints of alleged criminal activities against each other.In this appeal, the dispute relates to immovable property.On 2 April 2014, the appellant caused summons to be issued out ...
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HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

This is an application by the Master of the High Court for the removal of the first respondent as executor of the estate of the late Willas Mukati Moyo. The application has been filed in terms of section 117 of the Administration of Estates Act [Chapter 6:01] (“the Act”).The facts ...
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SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.The order ...
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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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SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.BackgroundThe appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. ...
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HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

This is application made in terms of section 213 of the Companies Act [Chapter 24:03] for leave to institute proceedings against the respondent, a company in liquidation.Should leave be granted, the applicant intends to file an application in terms of Rule 449 of the High Court Rules 1971, for correction ...
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SC89-21 : KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD vs EMMANUEL RENSBURG and MEGAMANIA AUCTIONEERS and SHERIFF OF THE HIGH COURT N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court handed down on 23 July 2020 which declared the first respondent the rightful owner of a Cat Caterpillar Dump Truck 769C. The Caterpillar was purchased by the first respondent at a judicial auction conducted by the Sheriff on ...
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