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Rules of Court re: Approach, Abuse of Court Process, Strict and Substantial Compliance & Pleading of Form over Substance

HH17-08 : GODFREY MAFUTA vs MADONDO GUTU MODERN STORES
Ruled By: MAKARAU JP AND MUSAKWA J

It is trite that the magistrates' court has no inherent jurisdiction and cannot fashion remedies or procedures outside the Magistrates Court Act and Rules, even if the intention is to further interests of justice and expediency. The Magistrates Court Rules, 1980 shall apply to all civil proceedings in the magistrates' court. There is no discretion ...
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HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

On 23 May 2005, the respondent issued summons out of Marondera Magistrates' Court. Her claim against the defendant, as it appears on the face of the summons, is recorded as “sharing property”. An affidavit was attached to the summons, curiously titled, in my view, as “Applicant's supporting affidavit (Property Sharing)”.In ...
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HH17-08 : GODFREY MAFUTA vs MADONDO GUTU MODERN STORES
Ruled By: MAKARAU JP AND MUSAKWA J

It is trite that the Magistrates' Court has no inherent jurisdiction and cannot fashion remedies or procedures outside the Magistrates Court Act and Rules, even if the intention is to further interests of justice and expediency. The Magistrates Court Rules, 1980 shall apply to all civil proceedings in the Magistrates' Ccourt. There is no ...
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HH17-08 : GODFREY MAFUTA vs MADONDO GUTU MODERN STORES
Ruled By: MAKARAU JP AND MUSAKWA J

The court must conduct itself in terms of the Rules at all times or risk having its judgment set aside as being incurably unprocedural.
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HH12-09 : BGM TRAFFIC CONTROL SYSTEMS vs THE MINISTER FOR TRANSPORT AND ZIMBABWE NATIONAL ROADS ADMINISTRATION AND THE CITY OF HARARE
Ruled By: MAKARAU JP

The Office of the Attorney General competes on an equal footing with all other law firms in the land. It is not exempted from abiding by the Rules of the Court. There is, in my view, no basis upon which this Court can accommodate excuses from this Office that it does not, in the ...
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HH104-12 : EXPOSALES (PRIVATE) LIMITED vs POLY PACKAGING (PRIVATE) LIMITED
Ruled By: MUTEMA J

..., I often decry the death of the age old practice of legal practitioners engaging each other in respect of such matters of adjectival law and accommodating each other by consenting to things like upliftment of a bar, condonation, rescission, etc, where applicable, thereby saving the court's time and client's money. Nowadays I am not ...
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HH43-09 : ZIMBABWE OPEN UNIVERSITY vs DR. O MAZOMBWE
Ruled By: HLATSHWAYO J

The applicant seeks an order setting aside the registration of an arbitral award granted in favour of the respondent. The award was submitted for registration at the High Court in terms of the provisions of the Labour Act [Chapter 28:01] and was duly registered on 25 February 2008. The applicant submits that the registration of the award ...
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HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

In Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, commenting on the provisions of section 165(4) of the Electoral Act and Order 1 Rule 4A of the High Court Rules, I…, said:-“It is true that this court can rely on High Court Rules, but, the issue ...
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HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on ...
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HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

Section 170(1) of the Electoral Act deals with the method and grounds of objection. It also sets out the period within which to object. That period would have to depend on the directions given by the Electoral Court as there are no prescribed Rules of Court at the moment.
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HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the ...
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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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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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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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HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of ...
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HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

In the earlier case of Sanlam Insurance Company Limited v Paget 1981 ZLR 132, GUBBAY J..., had this to say..., - “I turn now to a consideration of the merits of the application. As observed by GOLDIN J, as he then was, in Cohen v Cohen (1) 1979 RLR 184 (GD); 1979 (3) ...
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HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

Rule 58 of the Supreme Court Rules provides as follows:-“In any matter not dealt with in these Rules the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the Court or a Judge, follow, as near as may be, the practice and procedure ...
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HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he ...
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HH330-13 : THE SHERIFF OF THE HIGH COURT vs ANTONY WILLIAM MACKINGTOSH and KAR CORPORATION (PRIVATE) LIMITED and PUMULANI NCUBE
Ruled By: MATHONSI J

Rules of Court are there to regulate the practice and procedure of the court; Forestry Commission v Moyo 1997 (1) ZLR 254 (S) 259 A.
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HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

All Magistrates' Courts are formal courts of record whose proceedings are governed by set rules and established procedure. These Rules should be followed and anything done outside the Rules is susceptible of being set aside as being unprocedural. Mandava v Chasweka HH42-08…,.
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SC19-15 : FEXEN MPANSI and EDWARD DUBE and JABULANI DUBE and VINCENT DUBE and THOMAS MPANSI vs MORGAN DUBE and THE MASTER OF THE HIGH COURT and WILBERT NYAMUFUKUDZA N.O.
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

The High Court Rules apply pursuant to Rule 58 of the Rules of the Supreme Court, 1964 which provide that the practice and procedure of this Court shall follow that of the High Court where the Rules of this Court are silent on any matter.
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SC32-15 : BINDURA MUNICIPALITY vs PAISON CHIKEYA MUGOGO
Ruled By: GUVAVA JA

INTERPRETATION OF PRACTICE DIRECTION 3/13 It was the applicant's contention that the application was being brought in terms of paragraph 5 of Practice Direction 3 of 2013. In my view, it is necessary, for the sake of completeness, that I cite the relevant portion of the Practice Direction which relates to matters which have been struck ...
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SC50-16 : ZIMBABWE MINING COMPANY (PRIVATE) LIMITED vs OUTSOURCE SECURITY (PRIVATE) LIMITED and DEPUTY SHERIFF, GWANDA and WILLEM SMIT and S. DHLIWAYO and A.P. GLEDENING
Ruled By: MALABA DCJ, UCHENA JA and BERE AJA

An act done in violation of the Rules of Court cannot be valid. It is a nullity.
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SC36-17 : NETONE CELLULAR (PRIVATE) LIMITED and REWARD KANGAI vs ECONET WIRELESS (PRIVATE) LIMITED and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

Also relevant for present purposes is section 6 of the Supreme Court Act [Chapter 7:13]: “In any matter relating to records, practice and procedure for which no special provision is contained in this Act or in Rules of Court, the matter shall be dealt with by the Supreme Court or a judge thereof as nearly ...
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HH788-15 : COLLEN KWARAMBA vs WINSHOP ENTERPRISES (PVT) LTD and BLAIR CHRISTINK and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

Rules of court are there to regulate the practice and procedure of court and therefore must be adhered to. They are the court's tools fashioned for its own use: Nxasana v Minister of Justice Anor 1976 (3) SA 744.
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HB83-16 : PROFERT ZIMBABWE (PVT) LTD vs MACDOM INVESTMENTS (PVT) LTD
Ruled By: MAKONESE J

As was stated by VAN WINSEN AJA in Federated Trust Ltd v Botha 1978 (3) SA 645 (A)…,.; “Rules are not an end in themselves to be observed for their own sake. They are provided to secure the inexpensive and expeditious completion of litigation before the courts…,.”…,. In Jockey Club of South Africa v Forbes ...
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HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

The applicant cannot seek..., condonation..., by urgent application.
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HH446-15 : TELECEL ZIMBABWE vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY and MINISTER OF INFORMATION TECHNOLOGY N.O. and CHIEF SECRETARY, OFFICE OF PRESIDENT and EMPOWERMENT CORPORATION
Ruled By: MATHONSI J

Counsel for the first respondent contested the validity and urgency of the application. He submitted that the application does not comply with Rule 241(1) of the High Court Rules, 1971 in that the purported Form 29B does not contain a summary of the grounds on which the application is brought. For that reason there is no application ...
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HH470-14 : GUTA RAMWARI vs CHARLES WADUKA and TAPIWA ZINGWE and MARSHALL DHLIWAYO
Ruled By: MATHONSI J

Counsel for the respondents also tried to deflect attention from the real issues by arguing that the applicant is wrongly cited as “Guta RaMwari” when their Constitution and other documents filed in court cite them as “Guta RaMwari Congregation” or “Guta RaMwari Religion.” In my view, that is to worry too much about form instead of substance. It ...
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SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

What constitutes abuse of process was discussed in Beinash v Wixley 1997 (3) SA 721 (SCA) by MAHOMMED CJ..., as follows: “There can be no doubt that every court is entitled to protect itself, and others, against an abuse of its processes. Where it is satisfied that the issue of a subpoena in a particular case indeed constitutes an abuse it ...
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Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

It also goes without saying that, as a general rule, where the Rules of Court or a Practice Direction prescribe a form to be followed when drafting court process, legal practitioners are enjoined to make use of that form….,. The purpose of forms in Rules of Court and Practice Directions is to guide litigants as to the ...
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Appealed
SC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

The criticism that the learned judge in the court a quo placed more emphasis on form rather than substance cannot be denied.
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HH324-13 : DOMINION TRADING FZ-LLC vs VICTORIA FOODS (PVT) LIMITED
Ruled By: MATHONSI J

Abuse of process - the employment of the judicial process for a purpose other than that for which it was intended.
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HH142-15 : PASTOR DAVIAS MBURUMA vs UNITED APOSTOLIC FAITH CHURCH (UAFC) and THE SHERIFF OF ZIMBABWE
Ruled By: MATHONSI J

This court is not in the habit of exercising its discretion in favour of those abusing its process: Zvidza Anor v Mudoti HH422-14.
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HH422-14 : CLEOPAS ZVIDZA and MAVIS ZVIDZA vs ELVIS MUDOTI
Ruled By: MATHONSI J

An abuse of court process is the use of the process of the court for purposes for which it is not meant. It is unfortunate in the extreme and should be suppressed by all means possible as resort to it by litigants has always tended to bring the administration of justice to disrepute. The moment a litigant ...
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HH278-17 : DAVID LUWO and ROSE LUWO vs DOWOOD SERVICES (PVT) LTD and RAILING ENTERPRISES (PVT) LTD
Ruled By: MOYO J

Rule 4C…, was crafted to enable the court to condone a departure from the rules on given procedure warranting such departure and for good cause shown; it was never inserted in the rules so that applicants can abuse it by crafting un-substantiated causes of action and non-existent procedural avenues.
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HB251-16 : BEKI SIBANDA vs VANSBURG DRUMGOLD ENTERPRISES and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and SECRETARY FOR MINES & MINING DEVELOPMENT and MINISTER OF MINES & MINING DEVELOPMENT
Ruled By: MAKONESE J

On 20th September 2016, the applicant filed an urgent chamber application for an order to be joined in the proceedings pending in this court under case number HC2208/16....,. The application is resisted on the grounds set out in paragraph 29 of the founding affidavit in the following terms: “As indicated earlier on, the application is fatally defective and if ...
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HB257-16 : VILLAGE PROPERTIES (PVT) LTD vs REGGIE SARUCHERA (as Liquidator of 2nd respondent) and JW JAGGERS WHOLESALERS (PVT) LTD (in liquidation)
Ruled By: MAKONESE J

Whether the application is not properly before the court The first respondent sought to argue that the application is not properly before the court by reason of failure to give adequate notice for the filing of opposing papers. In terms of Rule 232 of the High Court Rules, 1971, the applicant was required to give the respondents at ...
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HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

Regarding the last point about the certificate of urgency not having been dated, counsel for the applicant explained that it was a harmless oversight that probably was occasioned by the haste in which urgent chamber applications are prepared. I condoned the oversight.
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HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

Rule 4C, inter alia, empowers a judge, inter alia, to condone a departure from any provision of the rules in the interest of justice….,. The rules are meant for the court and not the court for the rules.
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CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

In Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC), the Constitutional Court of South Africa…, said: “[39] Flexibility in applying requirements of procedure is common in our courts. Even where enacted rules of court are involved, our courts reserve for themselves the power to condone non-compliance if the interests of justice ...
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SC09-19 : DELTA BEVERAGES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: BHUNU JA

The need to comply with the rules of court cannot be over-emphasized especially where the rule is peremptory. Where strict compliance with Rules of Court is required, litigants must so comply because anything less will potentially prejudice the other party. In Chikura Anor v Al Sham's Global BVI Limited SC17-17, ZIYAMBI JA had occasion to ...
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HH130-11 : THIRDLINE TRADING (PVT) LTD and ONCLASS INVESTMENTS (PVT) LTD vs BOKA INVESTMENTS (PVT) LTD and TOBACCO INDUSTRY & MARKETING BOARD
Ruled By: UCHENA J

Rule 4C provides as follows: “The court or a judge may, in relation to any particular case before it or him, as the case may be — (a) Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is ...
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HH689-15 : THE SHERIFF OF THE HIGH COURT vs MUNYARADZI MAJONI and PAULINA MAJONI and MANDY M MAJONI and JAMES GUMBI
Ruled By: MAFUSIRE J

Before dealing with the merits, there was a preliminary point that the claimants raised in respect of the Notice of Opposition filed by the judgment creditor. It was this. In his notice of opposition to the inter pleader notice, the judgment creditor cited the parties as “THE DEPUTY SHERIFF MARONDERA (Applicant) [v] VICEMAST SERVICES (PVT) LTD (Judgment Creditor) ...
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HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

The first respondent's first technical objection was that the application was fatally defective for want of compliance with the Rules of the High Court, particularly Rule 241[1]. This is the rule that prescribes that Form No.29B shall accompany chamber applications unless the chamber application is one to be served on interested parties, in which case Form ...
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HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

To quash the respondents' second leg of their second point in limine, counsel for the applicant sprung an argument that neither formed part of its grounds of impeachment in the founding affidavit nor about which any notice had been given. He argued that it was a point of law which he could raise for the ...
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HH203-15 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and and SANDRA MUIR and REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

This is an application for a joinder. The draft order attached to the application reads as follows:- “1. The 6th Respondent be and is hereby joined as the 6th Respondent in Case No. HC1393/08. 2. The 6th Respondent shall, if he wishes to defend the 1st and 2nd Applicants' claim, file a Notice of Opposition within (10) ten days of service ...