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Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas

HHH57-09 : KISIMUSI DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE vs THE STATE
Ruled By: MTSHIYA J

I must hasten, at this point, to mention that at the hearing of., where the point in limine was raised, I pointed out that the norm in this court is that when an objection in limine is raised, a party is normally enjoined to also address the merits of the matter before the court.,. ...
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HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD
Ruled By: NDOU J

Coming to the counter claim, I dismissed the point in limine raised by the applicant ex tempore, and indicated that this judgment will provide reasons for that conclusion. The applicant is raising a technical objection. It is trite that technical objections to the less than perfect procedural steps should not be permitted in the absence of prejudice, to ...
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HB66-09 : SIPHILISIWE SIZIBA vs SOPHIE MATIMBA N.O. and QHUBEKANI MABUZA NCUBE
Ruled By: KAMOCHA J

When the matter went for a hearing, the present applicant's legal practitioner raised two points in limine, and made submissions in support thereof. Thereafter, counsel for the other party responded to the points in limine. I must mention that counsel for the then applicant had already addressed the court on the merits when the points in ...
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HB114-09 : DENNY NDABEZINHLE MASHENGELE vs JAMES NCUBE
Ruled By: NDOU J

In view of the nature of the point in limine that he had raised, it is no longer necessary to hear him on the merits before the interim relief sought is determined. The respondent will have all the time to make submissions on the substantive relief sought before the return date.
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HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

At the hearing of the matter, counsel for the plaintiffs' objected to the presence of Advocate de Bourbon at the bar as representing the defendants. At the time he raised the objection he had not yet handed over to me the written objection that the plaintiffs' had filed earlier on in the morning. Taken ...
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HH30-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD
Ruled By: PATEL J and OMERJEE J

In any event, I take the view that counsel for the respondent's belated objection, and cavalier manner in which it was raised, constitute palpably unacceptable conduct – almost verging on contempt of court. Accordingly, the Registrar is hereby directed to write to counsel for the respondent firmly cautioning him against similar misconduct in future.
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HH07-13 : ZIMBABWE TEXTILE MANUFACTURERS ASSOCIATION vs ZIMBABWE TEXTILE WORKERS UNION and DR. GODFREY KANYENZE
Ruled By: MTSHIYA J

At the commencement of the hearing, counsel for the applicant submitted that the respondents had filed their heads out of time and were therefore barred. I, however, allowed the parties to present full argument covering both the preliminary issues and the merits of the matter.
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HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA
Ruled By: HLATSHWAYO J and MAWADZE J

The court a quo misdirected itself in its failure to deal with the three points in limine raised by the appellant, which points in limine are valid at law.The finding by the court a quo that the points taken in limine by the appellant were “technical issues which, if considered by the court ...
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HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

Where points in limine have been raised the court has a discretion either to deal with the points in limine first before hearing the merits or to allow submissions to be made on the merits before making such determination on the points raised in limine. In the exercise of that discretion I allowed arguments ...
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HB07-14 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

Parties should not rely too much on procedural issues to the detriment of justice.
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SC32-13 : HEYWOOD INVESTMENTS (PRIVATE) LIMITED t/a GDC HAULIERS vs PHARAOH ZAKEYO
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

A court before which an interlocutory application has been made should not proceed to determine a matter on the merits without first determining the interlocutory application.
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HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant ...
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HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

Legal practitioners should not waste precious time by raising dud points in limine as if they are a mandatory ritual in every case.
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HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA
Ruled By: MAFUSIRE J

It is a fundamental principle of justice delivery that whenever possible, the real dispute between the parties should be solved without being over fastidious about forms and formalities.
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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

Legal practitioners should be reminded that it is an exercise in futility to raise points in limine simply as a matter of fashion. A preliminary point should only be taken where; (i) Firstly, it is meritable; and (ii) Secondly, it is likely to dispose of the matter. The time has come to discourage such waste of court time by the ...
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HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI
Ruled By: MATHONSI J

The rules of court providing for a plea in bar are there for a purpose. They are certainly not designed to provide sanctuary to litigants bent on evading lawsuits. They are for genuine ones who desire to dispose of those actions which should not detain the court because they can be disposed of on substance ...
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HH225-13 : EMMERSON MNANGAGWA vs ALPHA MEDIA HOLDINGS (PRIVATE) LIMITED and DUMISANI MULEYA
Ruled By: MATHONSI J

I…, take the view expressed by BEADLE AJ…, in McKelvey v Cowan NO 1980 (4) SA 525 (Z) that the law does not discourage parties from taking exceptions when exceptions may result in the reduction of costs and shortening of proceedings.
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HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

The respondents raised a number of in limine matters which the court chose not to consider. It remained of the view that the application should be disposed of on the basis of its substance and not on technical issues which had been placed before the court.
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HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ)
Ruled By: DUBE J

The respondent's opposing affidavit and written submissions raised the issue of urgency. The matter proceeded to argument on the merits without the respondent formally raising the issue of urgency, only to do so in response to the applicant's submissions on the merits. The applicant contends that the respondent let the court hear the matter on the ...
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HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

The respondent objected in limine to the determination of the matter on the merits on the following grounds: (a)…,. (b)….,. (c) That there is material non-disclosure on the part of the applicants which vitiates the application. A fourth point raised, that the applicants were represented by a legal practitioner when the Magistrate made his decision that the third respondent was married to the deceased ...
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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

All in all, I considered that none of the first respondent's technical objections aforesaid, individually or collectively, could block the determination of the matter on the merits seeing that the applicants' complaint was a breach of fundamental rights and freedoms enshrined in the Constitution. Section 85 of the Constitution says the fact that a person has ...
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SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

This is an application for reinstatement of an appeal in terms of Rule 34(5) of the Supreme Court Rules, 1964.The brief facts giving rise to the application are that the applicant employed the respondent as its clerical officer.Sometime in October 2011, the respondent received and receipted a total amount of ...
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HB94-11 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: NDOU J

There are two matters in this case.The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as ...
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Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, ...
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HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

The authors, HERBSTEIN and Van WINSEN, in The Civil Practice of the High Court of South Africa 5th ed…, stated that a special plea is one that does not raise a defence on the merits of the case, but, as its name implies, sets up some special defence which has, ...
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HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.(b) US$25,000 being damages for injuria.(c) US$50,000 being damages for permanent chronic depression.(d) US$450,000 being the difference between ...
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SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High court on the ordinary roll for determination. The order of dismissal was ...
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SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.At the centre of the dispute between the parties, both in the court a quo and before ...
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HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

A point in limine is a motion moved by one of the parties to litigation at the very beginning of proceedings aimed at usually pulling the rug from under the feet of the other party, so to speak.In limine motions are designed to facilitate the management of a case, generally, ...
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HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

Order 21 Rule 138 of the High Court Rules states:“138 Procedure on filing special plea, exception or application to strike outWhen a special plea, exception, or application to strike out has been filed -(a) The parties may consent, within ten days of the filing to such special plea, exception or ...
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HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: MABHIKWA J

The applicants herein filed a court application and sought the following relief, that;(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo ...
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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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HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL
Ruled By: MATHONSI J

Courts of law are there to adjudicate disputes on the merits. While matters may be disposed of procedurally; in my view, a definitive determination of the merits should be the first prize.
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SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of section 85(1) of the Constitution of Zimbabwe. The court also ordered the appellants to pay the costs of the application.This followed a finding by the court ...
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SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for ...
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Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the High Court sitting at Masvingo dated 13 March 2019. In this case, the court a quo granted a declaratory order sought by the first respondent in the following terms:“The National Peace and Reconciliation Commission that is established in terms of ...
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HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAFUSIRE J

Section 251(1) of the Constitution of Zimbabwe says:“For a period of ten years after the effective date, there is a commission to be known as the National Peace and Reconciliation Commission consisting of –”The rest is not immediately relevant.The applicant is a Member of Parliament for the House of Assembly ...
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HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

I now understand why it is completely undesirable for parties to raise preliminary points as a matter of fashion. Such points should only be raised where they are merited and are as could truly dispose of the whole matter without resort being had to the merits.I have spent a lot ...
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HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.
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SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.Against that order, the appellant now appeals to this court.BACKGROUNDIn October 2012, the appellant, as plaintiff, issued summons against both ...
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HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.The founding affidavit was ...
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HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

The applicant filed this application as an Urgent Chamber Application seeking the following order:(1) That the execution of the eviction ordered under SC138/21 and allowed to continue under HH83-22 be allowed pending finalization of the appeal under CV SC63/22.(2) That the first respondent pays the applicant's costs of suit on ...
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HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

The first plaintiff is the National Engineering Workers Union. The second plaintiff is the elected President of the first plaintiff, and the third plaintiff is the Secretary General of the first plaintiff.The first defendant is the National Employment Council for the Engineering and Iron and Steel Industry. The second defendant ...
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CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

The Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.
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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...
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