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Pleadings re: Amendment to Pleadings, Summons, Declaration and Draft Orders iro Approach

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO
Ruled By: KUDYA J

In line with the new currency regime operating in Zimbabwe at the time of trial, an application to amend the amounts sought was granted by consent.
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HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

The parties married on 13 December 1992 in terms of the Marriage Act [Chapter 5:11]. Two children were born of the marriage, Diana Musonza (born 24 March 1993) and Tafadzwa Musonza (born 24 January 2000). The parties resided at Number 3 Dunmore Avenue, Queensdale.The marriage was an unhappy one filled ...
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HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.At the commencement of the ...
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HH53-09 : ZIMBABWE ALLIED GROUP LTD vs MILDRED AND MATHIAS (PVT) LTD
Ruled By: MAKONI J

The applicant seeks an order to amend its summons, particulars of claim, and its prayer in case B6619/07 as particularized in the Draft Order. The application is contested. The background to the matter is that on 22 November 2007 the plaintiff issued summons out of this court. The plaintiff's claim is reflected as follows on the face of ...
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HH35-12 : DEBRAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: GUVAVA J

The applicant's counsel filed an amended draft order to his heads of argument...,.The applicant's counsel argued..., that the court, in the exercise of its inherent powers, may grant the amended order sought...,. I was..., not persuaded by this argument...,. It is trite that in application procedure the applicant's case stands or falls on their papers. The ...
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Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's pleadings are a mess.They do not comply with the strict requirements of the High Court rules. The face of the summons does not identify the 13 Others. The declaration does not do so either. In addition, it does not comply with the rules of court. It contains extraneous ...
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HH18-10 : CENTRAL AFRICA BUILDING SOCIETY vs EPHISON NDAHWI
Ruled By: MAKARAU JP

In my view, the general approach of this court, to the amendment of pleadings generally, is well settled. The Court will endeavour to permit the parties to a dispute to bring before it any issue upon which they seek to rely to avoid the possibility of stifling, upon technical grounds, an attempt by a party to bring ...
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HH68-10 : ALVIN CRISP vs STELLA MARY MASVIKENI
Ruled By: MUSAKWA J

Before I delve into the issues, there is one aspect that needs to be disposed of.At the commencement of the proceedings, counsel for the defendant sought an amendment of the counterclaim. The effect of the amendment was that in distributing the matrimonial estate, the court should take into account the plaintiff's conduct in deserting the ...
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HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy. On 21 December 2006, and before the pre-trial conference, the plaintiff amended ...
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HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS
Ruled By: MAKARAU J

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example. While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions ...
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Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

This trial is concerned with the identification of the correct house between two of the three houses that are eligible to ascend to the Nyajina Chieftainship of the vaZumba clan in the Uzumba Maramba Pfungwe district of Mashonaland East province of Zimbabwe.THE PLEADINGSOn 26 August 2005, the plaintiff issued summons ...
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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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HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

This matter came before me by way of an urgent chamber application.At the initial set down date, the legal practitioners indicated that they wished to file written submissions and the matter was accordingly postponed for that purpose.In view of the legal issues that were apparent from the affidavits, and that ...
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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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HH126-09 : AMOS MUKOMBA vs ONGEGUND (PVT) LTD AND LAMECK GANDIDZANWA
Ruled By: KUDYA J

At the commencement of the trial, the first defendant applied to amend his summons to reflect that the amount he claimed for a replacement tractor was US$15,000=. The second defendant sought to amend his summons to reflect the sum of US$2,000= as the damages he claimed for pain, shock and suffering. Despite the opposition mounted ...
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HH74-10 : CHARLES MAKANI vs GERTRUDE MAKANI (NEE ZIMONDI)
Ruled By: GUVAVA J

The plaintiff and the defendant married on 28 June 2002 in Finland. No children were born of this union. In December 2007 the plaintiff moved out of the matrimonial home, and, on 30 April 2008, he issued summons out of this court seeking a decree of divorce and other ancillary ...
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HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

In her draft, the applicant also seeks amendment of paragraph 8 of the order in HC 7136/2003...,. As no submissions were made in support of this prayer, I assumed that the applicant abandoned that part of her prayer...,.
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HB10-09 : BUSISIWE ANNAH SIBANDA vs DAN SIBANDA and MATABEZI VUKA UZENZELE TRUST
Ruled By: CHEDA J

Counsel for the first and second respondent's argument was that the applicant should have sought, and obtained, an amendment to her summons first before she argues about joinder...,. However, the main issue at hand is the joinder and not the amendment. The issue of amendment is basically procedural, which can be dealt with at anytime, ...
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HB34-09 : NOKUKHANYA MOYO vs ROBERT MOYO
Ruled By: BERE J

On 3 April 1998 the parties had their marriage, which had already been blessed with three children, solemnized at Bulawayo. Prior to that, the parties had been living in an unregistered union dating back to 1989.On 14 January 2000 the plaintiff issued summons against the defendant claiming divorce and other ...
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HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of ...
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HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

The applicant is standing trial in the Magistrates Court on charges he has not specified in his founding affidavit. The nature of the charges that the applicant is facing is however immaterial to the determination of this application.What is material is that on the 15th of February 2010 the applicant ...
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HH33-09 : LOUIS MADZONGO vs GLADYS BESENT
Ruled By: CHATUKUTA J

The summons was amended on two occasions before the trial. In the last amendment, the amount claimed was deleted and substituted with the sum of $69,266,436= (revalued).
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Appealed
HH109-10 : MICHAEL PATRICK MORONEY vs VYVYAN JEAN MORONEY
Ruled By: MUSAKWA J

The defendant also sought to be awarded the value of her jewellery that the plaintiff allegedly exported to the United Kingdom without her consent. This issue only arose during the trial. There was an attempt to seek an amendment to the defendant's plea by making a counter-claim by the defendant's counsel in her written submissions. I agree with ...
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HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

In the application the applicant had cited a number of grounds as being the basis of review but counsel for the applicant indicated, from the bar, that he would no longer move for all of them.
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HH180-10 : HAROON SALEMAMMED MOHAMED t./a HANAS HARDWARE AND ELECTRICAL vs SALEM ABDUL KARIM NOORMAHOMED and MESSENGER OF COURT, HARARE
Ruled By: MAWADZE J

At the commencement of the hearing counsel for the applicant sought to amend the citation of the case number in paragraph 1 of the terms of the final order to read “Case Number Civ 'A' 450/10” rather than Civ 'A' 537/10. This amendment was made by consent. The purpose and significance of that amendment later ...
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HH133-10 : JAYESH SHAH vs AIR ZIMBABWE CORPORATION
Ruled By: KUDYA J

On 26 May 2009, the plaintiff had filed a Notice of Amendment in which he, of his own accord, amended some aspects of his declaration. This document was not dealt with at the pre-trial conference. On 7 July 2009, the plaintiff, through his erstwhile legal practitioners, filed a Notice of Amendment. He indicated his ...
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HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

The prayer to compel the defendant to complete the repairs was not amended. The plaintiff only amended the quantum in the alternative prayer to a sum of US$5,824=.
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HH165-11 : EUSEBIA BUTAU vs LEONARD BUTAU
Ruled By: GUVAVA J

The applicant instituted proceedings in this court seeking an order to amend her declaration and plea to the defendants claim in reconvention….,. The High Court Rules 1972, as amended, set out in what circumstances pleadings may be amended. Order 20 Rule 132 provides as follows: "Subject to rules 134 and 151, failing consent by all parties, ...
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HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

There was never any attempt to amend the amount on the summons as supported by the prayer in the plaintiff's heads of argument. At the time of trial the plaintiff merely indicated the movement of the debt without amending the claim in the summons.
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HH210-10 : NICOZ DIAMOND INSURANCE CO. vs MARIAN TIGERE and BENJAMIN TSANGAIDZO and ANTONIO IBRIHIM JIVA
Ruled By: BHUNU J

Both plaintiffs are employees of the Reserve Bank of Zimbabwe. On 21 October 2008 they were travelling from Mutare to Harare in a Toyota Camry registration number ABF 9500 in the course of duty. After the Mutare River Bridge, and at the 235.5 kilometre peg, their motor vehicle had a violent collision with a vehicle ...
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HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

The plaintiff issued summons in which he claims for an order setting aside the cancellation of an Agreement of Sale between him and the first defendant and an order for specific performance for the delivery of the property, being a flat called Block 12, Room 93, Mufakose Flats. He later, by consent, amended his claim by adding ...
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HH228-10 : CAROLINE MABAIRE vs SHEPHERD JAILOSI and THE MINISTRY OF TRANSPORT AND COMMUNICATIONS
Ruled By: KUDYA J

In her summons, issued on 5 November 2009, the plaintiff sought damages in the sum of US$19,102= for the cost of repairing the electric gate, intercom and wall; interest on these amounts at the rate of 30% per annum from the date of judgment to the date of payment and costs of suit. At the commencement ...
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HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

At the commencement of the trial, the plaintiff sought an amendment to its claim by the deletion of the amounts of fourteen billion eight hundred million and six hundred and sixty six billion dollars and their substitution with the amounts of US$ twenty two thousand five hundred and sixty dollars and one million fifteen thousand ...
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HB87-10 : METALLION GOLD ZIMBABWE vs EUROTECH PLANT & EQUIPMENT (PVT) LTD and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

At the hearing of the application, the applicant sought to file a document to amend its draft order by introducing the reverse page of Form 29C having realised that the draft order was incomplete. The application for an amendment was strongly contested by counsel for the first respondent who submitted that the application should be considered ...
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HB105-10 : NKOSANA NCUBE vs BUTHOLEZWE MOYO
Ruled By: MATHONSI J

The applicant then filed a proposed amendment to increase the claim to $500 billion Zimbabwe dollars on the 14th May 2008. The respondent promptly opposed the proposed amendment by notice filed on the 15th May 2008 and it was abandoned.In February 2009, the Zimbabwe dollar became moribund with the Government introducing multiple currencies. When that happened, ...
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HB114-10 : MARIA SINGO (Executive Dative of the Estate Late Phillimon Singo) vs ROSE SITHOLE (as the executrix dative of the estate late Ernest Phillip Sithole) and OTHERS
Ruled By: MATHONSI J

At the commencement of trial in this matter, counsel for the first defendant moved an application for an amendment of the first defendant's plea to consolidate the special pleas filed and the plea on the merits as well as to amend the issues for trial that had been agreed at the pre-trial conference. The said ...
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HH06-11 : RITA SEKESAI CHIWANDAMIRA vs JOSEPHINE MUPANDAWANA
Ruled By: CHATUKUTA J

It was further submitted that when the tender was made, the plaintiff had already filed a notice of amendment, amending her claim to reflect that she was claiming a total sum of ZW$400 trillion. Therefore the tender was not in accordance with the plaintiff's claim. I now turn to the submission on whether or not the ...
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HH15-11 : JAMES KAMBADZA vs ANNA MTETWA
Ruled By: CHATUKUTA J

The applicant also contended that he had a bona fide defence to the claim on the basis that the amendment of summons by the respondent was a nullity. The nullity is said to be premised on the fact that the applicant did not consent to the amendment and in the absence of the consent, the ...
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HH24-11 : NOBUHLE MUPUDZI vs RUEBEN MUPUDZI
Ruled By: CHITAKUNYE J

On the trial date the two amendments were granted with the consent of the parties.
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HH30-11 : PRIMAC ENTERPRISES (PRIVATE) LIMITED t/a PRIMAC TELECOMMS vs NATIONAL HANDICRAFT CENTRE (PRIVATE) LIMITED and VICE SECURITY COMPANY (PRIVATE) LIMITED
Ruled By: MTSHIYA J

On 22 September 2010, the plaintiff led evidence from its first witness, Mr Alvin Dumisani Ncube. After the plaintiff had led evidence from its first witness, it then gave notice to amend its summons and declaration. The intended amendment would result in the plaintiff praying for “a return of the lost computers or their values ...
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HH58-11 : ART CORPORATION LIMITED t/a CHLORIDE ZIMBABWE vs PENCASH INVESTMENTS (PRIVATE) LIMITED and ADAM SENI ABDULA
Ruled By: MTSHIYA J

Counsel for the applicant also conceded that rental arrears that arose prior to 1 June 2009 could not be included in the relief sought by the applicant. To that end he moved for the deletion of paragraph 3 of the draft order.
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HH112-13 : EFROLOU [PVT] LTD and EMILY LUWACA vs MRS MURINGANI and EFROLOU [PVT] LTD and REGISTRAR OF DEEDS, BULAWAYO and THE MESSENGER OF COURT, KWEKWE
Ruled By: MAFUSIRE J

This is the judgment in the interlocutory application by Efrolou [Private] Limited, plaintiff in the case under reference number HC1816/10, and the first defendant in the case under reference number HC3285/10. Efrolou [Private] Limited's interlocutory application…, sought an order granting an amendment to its plea in the claim by one Mrs Muringani under HC3285/10. The ...
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HH114-11 : TUNATEMORE PRINTERS (PVT) LIMITED vs ORAGPLATE (PVT) LIMITED
Ruled By: BERE J

It is also pertinent to note that at the pre-trial conference the plaintiff sought and was granted the right to amend the amount of claim of the rent arrears from Z$160 trillion to US$6,800= and the rent value of the plaintiff's property was amended from Z$20 trillion per month to US$850= per month.
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HH116-13 : FORESTRY COMMISSION vs CELL INSURANCE COMPANY (PRIVATE) LIMITED and PREMIER INSURANCE BROKERS (PRIVATE) LIMITED
Ruled By: PATEL J

At the commencement of suit, the plaintiff had also claimed consequential loss arising from the non-use of its vehicle. However, this claim was abandoned at the trial because the relevant documents had not been duly discovered. The summons and declaration were accordingly amended by consent.
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HB24-13 : STANBIC BANK ZIMBABWE LTD vs NEIL WILLIAM RIX and FRANCOIS VAN DER ZEE and ALCO FOREST INDUSTRIES (PVT) LTD
Ruled By: CHEDA AJ

This is an application for an amendment of a provisional draft order issued on 21 September 2011 placing Birdland Trading (Pvt) Ltd under Provisional Judicial Management and other relief. The particular part targeted by this application is paragraph 4 of the provisional order which reads as follows:“4. Pending the return date all actions and proceedings ...
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HB63-13 : CHIEF GAMPU SITHOLE and GAMPU TOURS (PVT) LTD vs KENNEDY C. NDLOVU and THE DEPUTY SHERIFF OF BULAWAYO N.O.
Ruled By: MUTEMA J

Counsel for the applicants prayed for the court's indulgence to have the interim order amended by removing reference to the Supreme Court case.I have not been persuaded to grant the indulgence sought by counsel for the applicants of amending the interim order sought by expunging reference to the Supreme Court case. Earlier on in this judgment ...
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HB63-13 : CHIEF GAMPU SITHOLE and GAMPU TOURS (PVT) LTD vs KENNEDY C. NDLOVU and THE DEPUTY SHERIFF OF BULAWAYO N.O.
Ruled By: MUTEMA J

Counsel for the applicants prayed for the court's indulgence to have the interim order amended by removing reference to the Supreme Court case.I have not been persuaded to grant the indulgence sought by counsel for the applicants of amending the interim order sought by expunging reference to the Supreme Court case. Earlier on in this judgment ...
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HH122-13 : EFROLOU (PVT) LTD vs MRS MURINGANI
Ruled By: MAFUSIRE J

The plaintiff subsequently filed an amendment to its plea to include the special plea of prescription. It argued that the defendant's claim had become prescribed; that the sale in execution had taken place in 1996; that transfer had been effected as far back as 1999; that it had been more than three years ...
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Appealed
HH195-14 : FARAI MUSHORIWA vs CITY OF HARARE
Ruled By: BHUNU J

The respondent raised a number of preliminary issues regarding the propriety of some issues placed by the applicant before this Court. Whatever complaints the respondent might have had, have since been addressed by the amendments that I granted during the course of this hearing.
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HH310-14 : DEPUTY SHERIFF, KAROI vs EDWARD CHIGANGO and 55 OTHERS and FRESH BAKERY, KAROI and DAVID GOVERE
Ruled By: TSANGA J

Case authorities also make it clear that an amendment is in order unless it is made mala fide or it is prejudicial to the other party which prejudice cannot be compensated for by an order for costs or by some other suitable order such as postponement. Lixivia (Pvt) Ltd v Gray Security Services ...
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