Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

HH52-09 : NEIL BRUCE vs ECONET WIRELESS (PVT) LTD and CITY OF HARARE
Ruled By: OMERJEE J

The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.

On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -

(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.

(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:

(i) Vacate stand 648 Ballantyne Park.

(ii) Remove its cell phone base station.

(iii) Restore stand 648 to the condition it was in prior to erecting the base station.

ALTERNATIVELY:

Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).

(b) Costs of suit.

The facts bringing rise to this suit can conveniently be summarised as follows:

1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").

2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.

3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.

4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.

5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.

6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.

7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -

"Re: Cellphone Mast in Ballantyne Park

I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.

I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.

Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.

I should be grateful if you would give this matter your urgent attention."

8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.

Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.

The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -

"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."

This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.

In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].

My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.

He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

This is an application in terms of section 52(9)(i) of the Administration of Estates Act [Chapter 6:01].The trial of this matter has taken a long time to finalize for various reasons. The matter was initially filed in this court as a court application in July 2003. When the matter was ...

Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

On 20 March 2007, the application was, by consent, referred to trial due to the material disputes of facts that were replete in the pleadings. The founding affidavit stood as the summons while the first defendant's opposing affidavit became the appearance to defend. The plaintiff was directed to file a declaration and thereafter the normal ...

HH72-12 : STUPENDIS ENTERPRISES (PVT) LTD vs ADMIRE KASI and SARAH KASI and THE REGISTRAR OF DEEDS and COMMISSIONER-GENERAL, ZIMBABWE REVENUE AUTHORITY
Ruled By: HUNGWE J

The applicant seeks an order for specific performance of a contract of sale of an immovable property called Lot 1 of Subdivision 2 of Lot 382A Highlands Estate measuring 4,043 square metres held under Title Deed No.13635/2001, registered in the names of the first and second respondents, husband and wife respectively….,. The second respondent is opposed to ...

The second respondent is opposed to the order sought by the applicant.

She counter-applies for an order declaring the agreement of sale relied upon by the applicant null and void ab initio. She avers that, as joint owner of the property in question, she never consented to the sale of the property. She states that the signature appended to the Power of Attorney executed in favour of the first respondent granting him power to transfer her half-share is a forgery.

The applicant makes the following averments regarding the circumstances leading to this application:

On 15 February 2005, the first and second respondents sold the property to one Wonderful Chizema. On 1 July 2005, the first and second respondents sold the same property to the applicant. At the time of the sale the applicant was unaware of the prior sale to Wonderful Chizema.

On 20 July 2005, the first and second respondents sought to cancel the sale of the property to Wonderful Chizema. Chizema did not accept the cancellation. He obtained a provisional order, on 23 August 2005, in this court, interdicting the first and second respondents from alienating the property in any way. The provisional order was never confirmed. The applicant states that Wonderful Chizema has since fallen out of the picture.

On 2 August 2005, the first respondent sought to cancel the sale of the property to the applicant. The applicant did not accept the cancellation. It obtained a provisional order in this court on 2 September 2005 interdicting the first and second respondents from alienating the property in any way pending the determination of an application compelling transfer of the property to it.

On 5 October 2005, the applicant obtained default judgment against the respondents in terms of the order in the present application. Consequently, the property was transferred to it.

On 10 October 2005, a writ of eviction was issued out in favour of the applicant for the eviction of both the first and second respondents from the property. The first and second respondents obtained an order staying eviction pending the filing of an application for rescission of judgment.

On 20 December 2006, the second respondent applied for and obtained rescission of the judgment granted on 5 October 2005.

This application deals with the merits of the main application.

The issue is whether the applicant is entitled to the order sought in the application for specific performance.

The first respondent has not opposed the order sought.

The second respondent states that her marriage to the first respondent, around 24 February 2004, the date the power of attorney in favour of the first respondent was signed, was on the rocks due to the first respondent's association with one Ivy Kombo. As such, she could not possibly have executed the power of attorney as alleged. In any event, she had already executed such power of attorney in favour of her sister.

Counsel for the applicant urged this court to find for the applicant on the following grounds:

(a) Firstly, he contended that as the second respondent was fully aware of the sale of the joint matrimonial property to the applicant, she must be ordered to pass transfer to the applicant.

(b) Secondly, if this court held that she was unaware of the sale to the applicant, and, therefore, found that her signature consenting to the sale is a forgery, the court must still order specific performance as she will not suffer any prejudice since she can still call upon the first respondent to account for the sale of the proceeds of the sale of the matrimonial assets in the pending divorce action.

(c) Thirdly, since, at common law, the second respondent is regarded as co-owner of the asset in issue, she will be entitled to a share on the property proportionate to her shareholding. See Runciman v Schultz 1923 TPD 45 where…, the following appears;

“The principle of our law on this point seems to me to be contained in the first paragraph of Digest (10.3.6.2), where Ulpton says;

'A joint owner (socius) will be bound by the actio communi dividundo to account for whatever he has acquired from the common property, whether by letting the common property or by cultivating it himself.”

The applicant argues that the first respondent need not have obtained the second respondent's consent before disposing of his half-share. As such, the sale of the first respondent's half share to the applicant cannot be impugned. If the applicant does not obtain transfer, the result will be that the applicant, a company, and the second respondent, will become co-owners of a residential property which, for strangers, is absurd. The applicant urged the court to exercise its wide discretion to make such an order as the justice of the case may require. Estate Rother v Estate Sandig 1943 AD 47.

In Bennett N.O. v Le Roux 1983 ZLR 301 (H) the relevant authorities are discussed and set out as follows;

“The task of the court is to decide how the property should be sold, and, in doing that, it is being guided by the following passage in Oosthuizen's The Law of Property on p63:

“If the joint owners are unable to agree upon the manner in which the property is to be divided, any one of them may approach the court for relief by instituting the actio communi dividundo. The court has a wide discretion in regard to the partition and may make such order as appears to be fair and equitable in the circumstances. It may, for example, order one joint owner to pay a certain sum to each of the others in order to equalise the division; the court may award it to one of the joint owners subject to the payment of compensation to the other; or it may order that the property be sold by public auction and the proceeds to be divided among the joint owners in accordance with their shares.”

The second respondent is vehemently opposed to the grant of the order sought, and, as I said, makes a counter-application for an order declaring the agreement of sale null and void ab initio.

She raised a point in limine that as there is a dispute of fact incapable of resolution on the papers, the matter must be referred to trial.

It seems to me that there are sufficient facts which are common cause on the papers upon which this court can, adopting a robust approach to the whole matter, rely upon to resolve the dispute.

HH175-12 : VICTORIA FOODS (PVT) LTD vs TRINPAC INVESTMENTS (PVT) LTD and MEDWORTHS PROPERTIES (PVT) LTD
Ruled By: CHIWESHE JP

According to the applicant, the background facts to this matter are as follows: On 21 June 2010, the first respondent, represented by its Chief Executive Officer, signed an acknowledgment of debt in favour of the applicant in the sum of US$418,400=. The debt had arisen on account of the supplies of the applicant's products at the ...

According to the applicant, the background facts to this matter are as follows:

On 21 June 2010, the first respondent, represented by its Chief Executive Officer, signed an acknowledgment of debt in favour of the applicant in the sum of US$418,400=. The debt had arisen on account of the supplies of the applicant's products at the request of the first and second respondents. During the period 6 June 2010 and 1 September 2010 a further debt of US$267,260= was similarly incurred. The total debt then became US$685,659=98 (inclusive of the amount secured under the acknowledgment of debt).

The respondents made payments to the tune of US$195,494= leaving a balance of US$490,165=. A surety mortgage bond was then created to cover this debt in which the second respondent was the mortgagor and the applicant the mortgagee. In terms of clause 11 of the surety mortgage, should the mortgagor fail to pay the amount when due after demand and after seven days, the amount shall immediately become due and payable. It was also provided in the bond that any debt that would arise in future would still be subject to the security of the bond.

The debt has remained largely unpaid, and, despite demand, the respondent has failed to pay the money owed to the applicant. For this reason, the applicant has lodged this application seeking an order compelling the respondent to pay the sum of US$490,165= failing which the mortgaged property be declared specially executable. Further, the applicant seeks that the respondent be ordered to pay interest at the prescribed rate plus costs on the legal practitioner-client scale, including 10% collection commission.

The respondents agree that the facts are largely common cause. They do not dispute the fact and extent of their indebtedness.

The first respondent runs a bakery business. They aver that on 21 July 2010 it was agreed by the parties that the applicant would start providing the first respondent with flour so that it would be able to service its debt. The first respondent was expected, in terms of that agreement, to make weekly repayments of US$30,000=. The applicants then started supplying the first respondent with flour, confirmation, according to the respondents, that the parties had entered an acceptable arrangement. By this arrangement, the first respondent was servicing both the old debt and the new debt. However, the applicant stopped supplying flour as from 1 September 2010. As a result, the first respondent's weekly payments stopped on 14 September 2010. No explanation was proffered by the applicant as to why the flour supplies had been stopped. For this reason, argue the respondents, it was the applicant that breached the compromise and therefore the first respondent is not obliged to pay this claim until such time as the applicant would have purged its breach.

In its answering affidavit, the applicant denies any breach of any agreement with the respondents. It avers that it reached a compromise with the respondents in order to assist the respondents out of sympathy and the need to recover the debt by supplying the first respondent with flour with which to make its products. The compromise was made on condition the first respondent would repay the old and the new debts at the acceptable rate of US$30,000= per week. When the applicant made the first flour supply, the respondent did not pay anything within the agreed fourteen days period. That was a breach of the new agreement. The applicant avers that the respondents are not being truthful in their narration of the events leading to the cessation of flour supplies.

It is common cause that the parties entered into a compromise agreement in which the applicant would supply flour to the respondents and they would, in turn, repay their debts at the rate of US$30,000= per week. The US$30,000= was to be paid, at any rate, within fourteen days of delivery of each batch of flour. It is also common cause that although the offer of compromise was made in writing by the respondents the applicant's acceptance is implied by way of its conduct in resuming flour supplies along the lines and terms proposed by the respondents.

The applicant does not contend that it did not enter into a compromise arrangement – rather, it argues that the respondents breached the compromise arrangement.

According to FARLAM & HATHAWAY “A Case Book on the South African Law of Contract”…,:

“A compromise agreement, once entered into, precludes an action on the original debt, except where the compromise specifically, and by clear implication, provides that the original claim shall revive in the event of the non-performance of the terms of the compromise.”

See also Hamilton v Standard Chartered Finance 1998 (2) ZLR 488 (S).

It follows from the above that the parties are bound by the terms of the compromise agreement. Neither of them can resile from that agreement as the applicant tries to do by arguing that the compromise agreement was merely for the purposes of enabling the respondent to meet its commitments under a previous agreement, and that, in doing so, the applicant acted out of sympathy with the respondent. If that was what the applicant had in mind it should have responded to the applicant's offer of compromise accordingly. Instead, the applicant's conduct, in resuming flour supplies as proposed by the respondent in return for the US$30,000= per week repayment plan, bound itself to the compromise agreement. As a result, the applicant can only sue in terms of the compromise agreement and not in terms of the acknowledgement of debt or any other previous arrangement.

Did the respondents breach the compromise agreement?

The respondents say they failed to meet the repayment plan because the applicants had stopped (without notice) the flour supplies. The applicant says it stopped supplies after the respondents had failed to repay the US$30,000= which they were obliged to repay in terms of the compromise.

Whether the applicant or the respondents breached the compromise is a question of fact.

There is a dispute as to whether it was the applicant who breached the agreement by failing to supply flour or the respondents by failing to make repayments timeously. The respondents say that supplies of flour ended on 1 September 2010 and payments stopped on 14 September 2010, implying that it was the applicant who was in breach. The respondent states that they had been paying at the rate of US$6,000= per day every five day week, making a total of US$30,000= per week. These figures are reflected in the reconciliation prepared by the respondents and filed of record as Annexure “F”. The reconciliation indicates both the new debts (after compromise) and the old debts. The respondent says both the old and the new debts were being serviced together.

The factual dispute between the parties is one that cannot be resolved without hearing viva voce evidence. The applicant ought to have foreseen the emergence of this factual dispute. I am inclined to dismiss this application for this and other reasons outlined above.

Accordingly, it is hereby ordered as follows:

1. That the application be and is hereby dismissed.

2. That the applicant pays the costs.

HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

In her opposing affidavit, the first respondent took the point in limine that the application was fraught with conflict of facts that cannot be resolved on paper and that it should be dismissed on that basis alone.In casu, the written contract appears to have been varied by the subsequent agreement between the applicant and Everisto ...

In casu, the written contract appears to have been varied by the subsequent agreement between the applicant and Everisto Marenga increasing the purchase price of both properties by $3 million. By entering into the separate agreement with Everisto Marenga, in my view, the applicant appears to have evinced an intention to be bound by the condition precedent that the deal between Everisto Marenga and the respondent had to go through to enable her to acquire the Chegutu property. She makes the admission in her own papers that she went into the agreement to ensure that Everisto Marenga did not pull out of his Agreement of Sale with the respondent. It appears to me that by that admission, the applicant may have destroyed the basis upon which she can successfully rely on the parole evidence rule. It appears to me that by her own conduct, the applicant takes herself outside the application of the rule as her conduct, in entering into the separate agreement with Everisto Marenga, may have altered the agreement between herself and the first respondent.

A conflict of fact arises.

The applicant alleges that by entering into the separate agreement with Everisto Marenga she did not intend to alter her agreement with the first respondent. The first respondent argues that she did.

Without hearing viva voce evidence from the parties and their witnesses as to how the separate agreement was negotiated and concluded, I am of the view that I cannot conclusively decide on the matter without doing an injustice to one of the parties, notwithstanding the prima facie position I may have adopted above on the import of the separate on the original agreement between the parties.

In my view, there is a material conflict of fact in this matter relating to whether or not there was a condition precedent to the Agreement of Sale. That conflict cannot be resolved on the basis of the affidavits filed of record without doing an injustice to one or other of the parties…,. The effect of the acknowledgement of debt signed by the applicant in favour of Everisto Marenga takes centre stage in this dispute and has to be explained by viva voce evidence.

It has been argued by the first respondent that the sale of the Chegutu property was subject to her successfully purchasing a property in Harare. The applicant seeks to avoid such a condition precedent. Evidence has to be led from the parties as to whether this was their common intention or not.

Having found that there are conflicts of facts that I cannot resolve on the basis of the affidavits filed of record, it has exercised my mind whether I should dismiss this application or refer the matter to trial.

During the hearing of the matter, I did raise some of the conflicts of facts that were arising in this matter. I invited counsel to concede that such were that I could not resolve them without the aid of oral evidence. Counsel was of the view that there were not and invited me to be robust.

The caveat has been sounded before that litigants must choose the form of proceedings with care. Where a conflict of fact is apparent before the proceedings are launched application procedure should be avoided or the applicant risks having the application dismissed. In casu, the conflict must have been anticipated. It was apparent in the applicant's own papers. It became clearer with the filing of the opposing affidavits. It was hinted at during the hearing. Regardless, counsel opted to proceed - not taking the hint to have the matter referred to trial.

SC11-09 : CAPS UNITED FOOTBALL CLUB (PRIVATE) LIMITED vs CAPS HOLDINGS LIMITED AND THREE OTHERS
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

The second issue for determination in this appeal is whether there were disputes of fact which could not be resolved on the papers without doing any injustice to the parties. On that issue, the learned Judge a quo said the following: "It is my considered opinion that there are a lot of material disputes of fact ...

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

The respective versions of the parties on these issues...clearly shows that despite the matter being urgent (if facts alleged are proved) there are serious disputes of fact which cannot be resolved on the papers without doing an injustice to the parties...The parties are not in agreement at all on the following material facts... I am ...

HH35-12 : DEBRAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: GUVAVA J

The applicant, on the basis of this admission, seeks an order from this court making an award to her of a specific amount from the Cyprus account and half of the money in a South African account. It is apparent from the papers before me that the amount was not determined or agreed at the ...

HH41-12 : TAMABOGA NYAMHUNGA AND THIRTY EIGHT OTHERS vs ENIAS MUMVURI AND TWO OTHERS
Ruled By: CHIWESHE JP

It is evident from the foregoing that serious disputes of fact arise in this application. These disputes cannot be resolved without hearing "viva voce" evidence. The applicants should accordingly have proceeded by way of action rather than application.

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

It is trite that the court can only entertain proceedings on motion where there is no genuine dispute of fact. The determination of the question whether a real and genuine dispute of fact exists is a question of fact for the court to decide.

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

In every case, the court must examine the alleged dispute of fact and see whether in truth there is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence because if this were not done, the respondent might be able to raise fictitious issues of fact and thus ...

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

A material dispute of fact arises when such material facts put by the applicant are disputed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.

HH173-12 : PRIKISI MUTIMHODYO vs SANANGURAI KUBIKU and GUTU DISTRICT ADMINISTRATION AND TWO OTHERS
Ruled By: CHIWESHE JP

In the present application, it is patent that the facts upon which the applicant seeks to support his case are, despite his assertion to the contrary, far from common cause. These facts cannot be resolved without hearing "viva voce" evidence. For example, the applicant insists he is older than the successful nominee, the first respondent. The ...

HH181-12 : JENNIFER NYAMAKURA vs AGRIPPA MUZENGI
Ruled By: CHITAKUNYE J and MAWADZE J

This is an appeal against the judgment of the Harare Magistrates Court delivered on 17 February 2010 in which the court a quo granted the following order:-

“Custody of the two minor children is hereby awarded to the respondent with the appellant having reasonably access.”

The facts giving rise to this appeal can be summarised as follows:-

The appellant and the respondent entered into an unregistered customary law union sometime in 2001 and two children, namely, Blessed Muzengi (born on 14 September 2001) and Gracious Muzengi (born on 1 June 2006) were born out of the union. The appellant apparently fell ill sometime in 2009 and she had to go to her parents' home for treatment which culminated in the separation between the parties, and, consequently, the dissolution of the union. At that relevant time the two minor children remained in the respondent's custody on account of the appellant's ill-health.

It would appear from the facts, that, before the parties separated, the appellant had obtained a Maintenance Order in respect of the two minor children.

When the appellant had recovered she apparently failed to obtain custody of the two minor children and proceeded, on 28 January 2010, to file an application for custody of the two minor children with the Magistrates Court. In her affidavit in support of the application for custody the appellant stated that it is in the best interest of the children that she be awarded custody and briefly gave the following reasons;

(i) That the two minor children are of tender age (then 11 years and 4 years respectively), and, as such, need the care of their mother.

(ii) That the appellant had the means to contribute to the welfare of the two minor children as she is now engaged in horticulture business in Shamva and is able to provide, to a great extent, for the daily upkeep of the minor children.

(iii) That the respondent is not a suitable parent to have custody of the minor children as he has no time for the children and has neglected the children and had taken the eldest child to his parents in rural Chivhu.

(iv) That the two minor children have a right to a family and hence should not be separated from each other.

The record of proceedings reflects that the respondent did not file any opposing affidavit although during the brief hearing in the court a quo the respondent seemed to make reference to “his papers filed of record”. However, on the hearing date, on 11 February 2010, the respondent opposed the application by the appellant and gave the following reasons:-

(a) That the parties separated due to irreconcilable differences and the appellant left the children in his custody.

(b) That when the appellant recuperated she asked for the children on 14 December 2009 and that the children were to be returned to him after the new year since he had paid some cattle to the appellant's parents as “chiredzwa”.

(c) That he subsequently reached an agreement with the appellant that the appellant would have custody of the younger child, but, the appellant later reneged on this promise as she also wanted custody of the elder child which prompted the respondent to take the elder child to his parent's rural home in Chivhu.

(d) That the elder child has always been staying with the respondent's parents in rural Chivhu since the time he was weaned and that he is more close to the respondent's mother than the biological mother - the appellant.

(e) That the appellant is not a suitable parent to look after the children as she has in the past misused the money paid by the respondent as maintenance for the children; has failed to ensure that the children attend school at all material times; and, at one point, assaulted one of the minor children.

The appellant, in response, vehemently denied that she ever agreed to surrender custody of the minor children to the respondent and that the arrangements made were temporary as the appellant was unwell.

The appellant said the elder child was to attend school in Harare and not to be taken to rural Chivhu where the respondent's parents are supposed to take care of the child. The appellant denied assaulting any of the minor children, and, instead, said it is the respondent who assaulted the child and boasting that he could do as he pleases since the child was his.

It was after hearing the brief oral submissions outlined above, from the parties, that the court a quo, without giving reasons, granted the order referred to supra.

On 25 March 2010, the appellant asked for the reasons for the ruling made on 17 February 2010 to enable the appellant to pursue the matter on appeal. The trial magistrate responded on 29 March 2010 and gave the following reasons for the order granted on 17 February 2010:

“After having considered submissions made by both sides, the court is of the view that it will be in the best interests of the children for custody to be awarded to the respondent.”

Dissatisfied with the reasons given by the court a quo the appellant caused a notice of appeal to be filed with this court on 29 March 2010 on the following grounds of appeal:-

“GROUND OF APPEAL

1. The magistrate erred and misdirected herself by mero motu awarding the custody of the two minor children to the respondent when there was no application by the respondent placed before the court as for the Guardianship of Minors Act [Cap 5:08] section 5(3)(b) for custody of the two minor children.

2. The magistrate further erred and misdirected herself by denying the appellant, the natural mother of the minor children, custody when there were no special and/or extenuating circumstances placed before the court or proved by the respondent which warranted the appellant being denied her inherent right to custody of the two minor children moreso considering their tender age and need for motherly love, care, and attention.”

I now turn to the merits of this matter.

There are a number of irregularities in this matter....,.

From the facts of the matter, which I summarised at length, it is clear that there were serious disputes of facts between the parties which could not be resolved on the mere word of one party against the other. It is clear from the record that the parties did not give any evidence, that is, sworn testimony for the court to properly asses the facts in dispute.

HH185-12 : CHITUNGWIZA MUNICIPALITY vs DELATFIN INVESTMENTS (PRIVATE) LIMITED
Ruled By: CHIWESHE JP

It is evident that there are material disputes of fact in this matter...these disputes cannot be resolved on the papers as they stand. The application ought to be dismissed on that score alone. For example, the parties differ on the nature of the agreement that they entered into. This is a crucial matter because ...

HH196-12 : SWINDALE PROPERTIES AND BRIGHT TECH ENTERPRISES (PVT) LTD AND ANOTHER vs VENENCIA MADAKE
Ruled By: CHIWESHE JP

The first applicant and the respondent entered into an agreement in which the first applicant leased stand.to the respondent. At some stage during or after the subsistence of the lease, the first applicant sought to evict the respondent from the property. The respondent approached the Magistrate's Court and obtained an order interdicting the first applicant ...

HB01-12 : NKULULEKO MABHENA vs P.G. INDUSTRIES (ZIM) LIMITED AND P.G. ZIMBOARD PRODUCTS (PVT) LTD AND ANOTHER
Ruled By: KAMOCHA J

The nature and history of this matter are such that, in my opinion, the applicant should have foreseen that a genuine dispute of fact might arise and that he took a risk in option to proceed by way of motion.

HB01-12 : NKULULEKO MABHENA vs P.G. INDUSTRIES (ZIM) LIMITED AND P.G. ZIMBOARD PRODUCTS (PVT) LTD AND ANOTHER
Ruled By: KAMOCHA J

It is quite clear that there are serious disputes of fact on the issue of salary arrears and benefits to which the applicant claims to be entitled which can only be resolved through a trial. For instance, how does one earn such huge amounts of money from one's employment within such a short period ...

HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED
Ruled By: PATEL J

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1st of April 2006 to the date of vacation.The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims ...

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, ...

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, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

SANDURA JA: I have read the judgment prepared by CHIDYAUSIKU CJ, but respectfully disagree with it.

The judgment is based on the principle that a peremptory enactment must be obeyed or fulfilled exactly, and that in respect of a directory enactment substantial compliance therewith will suffice.

That principle was disapproved of and abandoned by this Court, about twenty-two years ago, in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC).

At 301B-302B GUBBAY JA …, with the concurrence of McNALLY JA and MANYARARA JA, said the following:

"The categorisation of an enactment as 'peremptory' or 'directory', with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfilment will suffice, no longer finds favour.

As was pertinently observed by VAN DEN HEEVER J (as he then was) in Lion Match Co. Ltd v Wessels 1946 OPD 376 at 380 the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan, and objects.

The same sentiment was expressed by MILNE J in J.E.M. Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine – 328B.

This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A), where, after concluding that the provision with which he was concerned was imperative, VAN WINSEN AJA went on to enquire whether the failure in strict compliance therewith was fatal. He propounded the following test at 646C-E:

'The enquiry, I suggest, is not so much whether there has been "exact", "adequate" or "substantial" compliance with this injunction, but, rather, whether there has been compliance therewith.

This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be. It is quite conceivable that a Court might hold that, even though the position as it is, is not identical with what it ought to be, the injunction has nevertheless been complied with.

In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.'…,.

See also Shalala v Klerksdorp Town Council & Anor 1969 (1) SA 582 (T) at 587H-588B; Nkisimane & Ors v Santam Insurance Co. Ltd 1978 (2) SA 430 (A) at 433H-434E; and, more recently, Ex p Dow 1987 (3) SA 829 (D) at 831B-D.

Judges in this country also have not been slow to move away from the traditionally strict approach. See Swift Transport Services (Pvt) Ltd v Pittman NO & Ors 1975 (2) RLR 226 (GD) at 228C-229C, 1976 (1) SA 827 at 828; Macara v Minister of Information, Immigration and Tourism & Anor 1977 (1) RLR 67 (GD) at 70H; Ex p Ndlovu 1981 ZLR 216 (GD) at 217F-G.

Testing the matter then in the manner approved by these authorities, one is constrained to discover the object of section 3(1) of the Regulations to determine whether that object is fundamental to the policy of the enactment, and, if it is, to decide whether it is defeated or frustrated by the non-compliance complained of. The degree of observance and non-compliance is another relevant consideration."

In that case, GUBBAY JA was considering whether section 3(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 ("the Regulations") (now repealed) had been complied with.

The facts in that case are set out in the headnote, which, in relevant part, reads as follows:

"In July 1987, the appellant, the respondent's employer, suspended the respondent from her employment without pay, pending the outcome of the appellant's request to the Ministry of Labour for her dismissal on the grounds of having stolen a confidential document from the company. The relevant section of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations required that (the) application be made to a labour relations officer, but, the appellant applied to an acting regional hearing officer in the Ministry…..,."

Having found that the object of the requirement of section 3(1) of the Regulations (i.e. that upon suspension of an employee without pay and other benefits the employer was to apply forthwith to a labour relations officer for an order or determination terminating the contract of employment) was predominantly the protection of the interests of the employee, that that object was not frustrated or materially impaired by the employer proceeding in the manner it did, and that the degree of non-compliance was by no means great, the Court held that section 3(1) of the Regulations had been complied with.

In my view, the principles set out in the above authorities are the principles which should be applied in the present case in order to determine whether Standing Order No. 6 ("the Standing Order") was complied with in the election of the Speaker.

In this regard, the following questions arise for consideration –

1. What is the object sought to be achieved by the Standing Order?; and

2. Was that object achieved in the election of the Speaker?

I shall deal with the questions in turn.

What is the object sought to be achieved by the Standing Order?

The Standing Order reads as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of the Speaker by a secret ballot."

In my view, the object sought to be achieved by this Standing Order is the same as the object sought to be achieved by the secret ballot system all over the world. It is to protect the voter, mainly against intimidation and victimisation, by enabling him or her to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she has voted.

The secret ballot system, in this country, has its origin in the Ballot Act 1872, which introduced a secret system of voting in Parliamentary and Municipal elections in Great Britain. Before the Ballot Act was enacted, in 1872, Britain had an open system of voting in Parliamentary and Municipal elections.

In Parliamentary elections, the voter would go onto a platform at the polling station and announce his choice of candidate to an officer, who then recorded it in what was called a Poll Book. Intimidation and victimization were rife. Employees were required, by their employers, to vote for particular candidates or lose their employment. The same applied to tenants. If they did not vote as the landlord wanted them to vote, they were evicted from the premises they occupied. In the circumstances, there was a growing demand for the protection of the voter against intimidation and victimisation by enabling him to vote freely and in secret. As a result, the Ballot Act 1872, which introduced a secret system of voting, was enacted in order to meet that demand.

The Act required that Parliamentary and Municipal elections be by secret ballot. Subsequently, when this country became a colony of Great Britain the secret ballot system was introduced in the country.

In my view, the object sought to be achieved by the secret ballot system in Great Britain is the same as the object sought to be achieved by the Standing Order. That object is fundamental to the policy of the Standing Order.

Was the object sought to be achieved by the Standing Order achieved in the election of the Speaker?

In my view, there can be no doubt whatsoever that the answer to that question is in the affirmative.

All the two hundred and eight Members of Parliament ("MPs") present marked their ballot papers in the secrecy of the polling booths. Each MP was protected against intimidation and victimization, and was enabled to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she had voted.

Some MPs emerged from the polling booths with their ballot papers folded, whilst others emerged from the polling booths not having folded their ballot papers. However, there was no evidence suggesting that any MP who had wanted to keep his or her ballot paper folded at all times outside the polling booth had been prevented from doing so. In addition, no MP ever complained to the Clerk of Parliament that he or she had been compelled to display his or her marked ballot paper to any other person.

However, assuming that it is correct that the six MPs who displayed their marked ballot papers did not comply with the Standing Order, the object sought to be achieved by the Standing Order was, nevertheless, not defeated or frustrated by the non-compliance complained of.

Of the two hundred and eight MPs who voted, only six (i.e. about 2.9 percent of the total) displayed their marked ballot papers before depositing them in the ballot boxes, whilst two hundred and two (i.e. about 97.1 percent of the total) voted in accordance with the provisions of the Standing Order.

Quite clearly, the degree of non-compliance was insignificant, whereas the degree of compliance was nearly one hundred percent.

In the circumstances, as the object sought to be achieved by the Standing Order was achieved and not defeated or frustrated by the non-compliance complained of, and, as the degree of the alleged non-compliance was insignificant, it follows that the Standing Order was complied with in the election of the Speaker.

Finally, I would like to comment on section 177 of the Electoral Act [Chapter 2:13] ("section 177 of the Act"). It reads as follows:

"An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and, only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act has its origin in the Ballot Act 1872 ("the Ballot Act"), which introduced the secret ballot system in Britain. Section 13 of the Ballot Act provided as follows:

"No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Schedule to this Act if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election."

Subsequently, section 13 of the Ballot Act was reproduced, in almost identical language, by the Legislature of the Colony of Southern Rhodesia, in the Electoral Act 1928. Section 60 of that Act read as follows:

"No election shall be set aside by the court by reason of any mistake or non-compliance with the provisions of this Chapter, if it appears to the court that the election was conducted in accordance with the principles laid down in this Chapter, and that such mistake or non-compliance did not affect the result of the election."

Thereafter, section 60 of the Electoral Act 1928, was reproduced, in almost identical terms, in every Electoral Act enacted in this country, as can be seen from the following provisions –

1. Section 85 of the Electoral Act 1938;
2. Section 85 of the Electoral Act [Chapter 2];
3. Section 88 of the Electoral Act 1951;
4. Section 182 of the Electoral Act 1969;
5. Section 156 of the Electoral Act 1979;
6. Section 38 of the Electoral Amendment Act 1987;
7. Section 142 of the Electoral Act 1990;
8. Section 149 of the Electoral Act [Chapter 2:01]; and
9. Section 177 of the Electoral Act [Chapter 2:13].

Thus, the principle that an election will not be set aside by the court for non-compliance with the provisions of the electoral law if the election was conducted in accordance with the principles of the electoral law, and the non-compliance did not affect the result of the election, is well-established and has been part of the electoral law of this country for at least eighty-two years.

It is based on common sense, for there would be no good reason for setting aside an election on the basis of an irregularity which did not affect the result of the election.

However, as I have already determined that the election of the Speaker was conducted in accordance with the principles of the Standing Order, and, as it was common cause that the non-compliance complained of did not affect the result of the election, the only remaining issue for me to determine is whether the principle that the court would not set aside an election on the basis of an irregularity which did not affect the result of the election, applies to the election of the Speaker.

I have no doubt in my mind that it does. In fact, there is no logical reason whatsoever why it should not apply.

In my view, the fact that the Standing Order does not state the principle is of no significance. The principle is based on common sense, and common sense dictates that if an irregularity does not affect the result of the election, it cannot form a basis for the nullification of the election.

In addition, when the Standing Order was drafted, Parliament must have been aware that the principle had been part of the electoral law of this country for a very long time, and must have felt that there was no need to include in the Standing Order an obvious principle based on common sense. In any event, one would not expect the sort of details which usually appear in a statute to be set out in a Standing Order.

Finally, I would like to comment on the following statement in the majority judgment:

"It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance."

In my view, the description of the election as "shambolic and chaotic" is not borne out by the finding made by the learned Judge in the court a quo, which was as follows:

"As regards the conduct of the election in casu, generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent. In this situation, the approach to be adopted was explained by GUBBAY JA (as he then was) in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) at 339, as follows:

'It is, I think, well established that in motion proceedings a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.'

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic. On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided.

Taking into account the usual volatility associated with the conduct of Parliamentary business generally, I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion."…,.

In any event, as the appellants elected to proceed by way of motion proceedings in the court a quo, any disputes of fact between the parties had to be resolved in favour of the respondents: see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

In this regard, it is pertinent to note that the allegation that the election was chaotic was denied by the respondents.

Accordingly, I would dismiss the appeal with costs.

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 ...

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 two-pronged attack on the validity of the Notice of Appeal, namely:

(a) That it was irregular, and to that extent a nullity, in that it was lodged before the learned judge had delivered his judgment; and

(b) That it was incompetent, and to that extent a nullity, in that it was issued without leave of this court as is required by law.

As regards the first allegation, counsel for the applicant made serious allegations which impugned on the integrity and professional conduct of the respondents legal practitioners. The allegations necessarily raise serious factual disputes incapable of resolution without evidence.

After hearing argument..., I called for the Registrar's report seeking clarification as to whether or not the Notice of Appeal was filed before HLATSHWAYO J had delivered his judgment.

The Registrar has since filed his report. The report confirms that indeed the Notice of Appeal was filed in the Supreme Court, and served on the other part, before HLATSHWAYO J had delivered his judgment.

The respondents have challenged the Registrar's report pointing out that it was, to a large extent, computed from hearsay evidence.

Counsel for the respondents also sought to place in issue the integrity, and conduct, of personnel in the Registrar's office concerning the processing of the Notice of Appeal.

After deliberations, it was unanimously agreed that the respondents were within their rights in challenging the Registrar's report. It was further agreed that there was need to call for evidence from those concerned in the actual processing of the Notice of Appeal to assist the court in determining disputed facts.

The parties were, however, unable to agree on the format and procedure for laying that evidence before the court....,.

Relying on Rule 246, counsel for the applicant proposed that viva voce evidence be led from the relevant witnesses.

The Rule provides that:

“246(1) A judge to whom papers are submitted in terms of Rule 244 or 245 may:

(a) Require the applicant, or the deponent of any affidavit, or any other person, who may, in his opinion, be able to assist in the resolution of the matter, to appear before him in Chambers or in court, as may to him seem convenient, and provide on oath, or otherwise, as the judge may consider necessary, such further information as the judge may require.

(b) Either party's legal practitioner to appear before him to present such further argument as the judge may require.”

On the other hand, counsel for the respondents preferred that evidence be provided through affidavits as provided by Rule 227(4) which provides that in an application:

“(4) An affidavit filed with a written application –

(a) Shall be made by the applicant, or respondent, as the case may be, or by a person who can swear to the facts, or facts set out therein; and

(b) May be accompanied by documents verifying the facts or averments set out in the affidavit, and any reference, in this Order, to an affidavit, shall be construed as including such documents.”

It must be noted that Rule 246 is premised on the presiding judge's discretion to call for oral evidence to help him determine the matter after perusing the papers. The judge is, however, under no obligation to call for such evidence. The discretion is entirely his, depending on the exigencies of the matter.

On the other hand, Rule 227(4) imposes an obligation on both parties to file affidavits in support of their respective factual averments.

A perusal of the papers shows that neither party has so far filed any affidavits concerning whether or not the Notice of Appeal was filed after HLATSHWAYO J had delivered his judgment.

As I have already pointed out, the issues at hand are hotly contested. There are serious allegations and counter-allegations concerning the parties, and court officials.

We operate in an adversarial legal system where the contest is between the parties, and the judge's role is mainly that of an umpire.

Normally, the judge only descends into the arena to seek clarification of the facts, and not to advance either party's cause. That being the case, Rule 246 is sparingly used by judges for fear of descending into the arena, and having their vision clouded by the dust of the conflict.

Considering that there has been no affidavits concerning the issue at hand, I consider it inappropriate to enter the arena at this point in time because there is really nothing to clarify at this stage. It is up to the parties to advance their respective positions without the assistance of the judge.

For the foregoing reasons, I direct that the parties shall proceed in terms of Rule 227(4) reserving my rights to invoke the discretion conferred upon me by Rule 246 as and when it becomes necessary in the course of proceedings.

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

The applicant herein is the registered owner of an immovable property commonly known as 425 Dandaro Village. The applicant has owned the property since April 2004. In this matter, the applicant is seeking the eviction of the respondent from the premises. The respondent is opposed to the granting of the relief being sought. The respondent, in seeking to ...

The respondent is opposed to the granting of the relief being sought.

The respondent, in seeking to oppose the order being sought has raised a point in limine. He avers that there are many disputes of fact on the papers which cannot be disposed of without the hearing of oral evidence. He alleges that he occupies the property with the consent of one Margaret Kathleen Matthew and her husband. He said that these two had sold the property to him in February 2004 and that this alleged sale was an issue before this court in case number HC1454/05....,.

The respondent contends, further, that even in these proceedings it is the said Margaret Matthews and her husband who are seeking to evict him and his family through the medium of the applicant.

It is correct that the Matthews have been litigating with the respondent under other case numbers for his eviction from the house. On 23 November 2006, Margaret Matthews filed an application for leave to execute pending appeal which was unsuccessful. In his opposing affidavit to that application, the respondent made the following averments under oath:

“Para 3(e)(i)

In my notice of appeal I raised a number of grounds against the judgment. In essence, I contended that I had offered to buy the property from the applicant to which the applicant did not act.

3(e)(ii)

In any case, the applicant had acted prematurely in seeking my eviction when I was expecting a written agreement to be signed by both parties.

3(e)(iii)

I deny that I appealed in order to frustrate the applicant. I raised the necessary grounds of appeal. I want to protect the offer I made to purchase the house.”

It is clear that whereas in the application before me the respondent contends that he purchased the house from Mrs Matthews; in the earlier application, where he was pitted against her, he told the truth that he had in fact offered to purchase the house but Mrs Matthews did not, as he put it, “act”.

I therefore find that there is no dispute of fact on the alleged purchase of the house by the respondent from Mrs Matthews.

HH133-09 : EZERA MUSHANDIKWA vs NATIONAL RAILWAYS OF ZIMBABWE AND THE DISTRICT CIVIL ENGINEER N.O. FOR NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MTSHIYA J

In his written submissions, counsel for the first respondent submitted that there were several material disputes of fact in the case, and, accordingly, the matter should have been brought by way of action as opposed to application. He submitted that for that reason alone the matter should be dismissed. Counsel for the first respondent listed some of ...

He submitted that for that reason alone the matter should be dismissed.

Counsel for the first respondent listed some of the serious disputes of fact as follows:

“1.3(a) There was a dispute of fact whether, as at 14 January 1999, applicant was a tenant of first respondent or of RMS (Pvt) Ltd.

1.3(b) There is a dispute of fact as to when the applicant became first respondent's tenant.

1.3(c) There is a dispute of fact whether Chiredzi was one of the centres where houses were to be disposed of.

1.3(d) There is a dispute of fact as to whether or not applicant was offered the property by first respondent

1.3(e) There is a dispute of fact as to whether applicant fell into the category of persons to whom the houses could be disposed, and if so, his priority or ranking thereof.

1.3(f) There is a dispute as to the genuineness of the letters allegedly addressed to first respondent and emanating from the applicant.

1.3(f)(i) As averred by respondent, the alleged letters were never received and there is no proof that they were ever posted or delivered.

1.3(f)(ii) ...,.”

In dealing with this matter, I find myself not in agreement with counsel for the first respondent that there are many material disputes of fact which disable the court from making a determination. I say this because of the following unchallenged positions:

1. Special Notice 2313 was directed to the first respondent's employees only.

2. The applicant was an employee of RMS (Pvt) Ltd and not the first respondent.

3. As at 30 September 1998, the applicant, as an employee of RMS (Pvt) Ltd, was not covered by the Agreement (i.e. Collective Bargaining Agreement which took effect from 1 October 1998).

4. As at 14 January 1999, the applicant was a tenant of RMS (Pvt) Ltd, and only became a tenant of the first respondent on 1 December 2001, as per the lease agreement.

5. Special Notice 2313 did not cover Chiredzi. There is nothing in the papers to indicate that Chiredzi was covered, and that the first respondent held freehold title in properties in Chiredzi.

6. There is no Agreement of Sale between the applicant and the first respondent, as envisaged by clause 7.1 of Special Notice 2313; and

7. The first respondent never made an offer to, or accepted an offer from, the applicant in terms of clause 2.1.4 of Special Notice 2313, and, accordingly, the purported correspondence from the applicant is of no consequence.

In view of the above positions, I do not see any reason why this court cannot determine the matter on the papers.

View Appeal
HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

In Chodokufa v Chodokufa 1988 (1) ZLR 14..., ADAM J said - “It is clear that there are, on the papers, factual disputes on a number of issues. The court has been urged by both parties that, despite this, it should do what it can and take a robust approach so as to determine the ...

HH158-09 : WILTON RENSBURG vs MARKO MAVHURUME N.O. and THE REGISTRAR OF DEEDS N.O and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

On 18 November 2009, counsel for the applicant conceded that there were, indeed, material disputes of facts in the case, and as such the application route was not proper. He then devoted his submission to what I regarded as “an application to have the matter referred to trial.” He urged the court not to dismiss the matter ...

On 18 November 2009, counsel for the applicant conceded that there were, indeed, material disputes of facts in the case, and as such the application route was not proper.

He then devoted his submission to what I regarded as “an application to have the matter referred to trial.”

He urged the court not to dismiss the matter but to refer it to trial on the basis of the papers already before it. He said the issue of material disputes of fact had only surfaced upon the filing of Elton Shumba's affidavit on 03 June 2009. The said Elton Shumba is the son of both deceased persons, namely, Eliphanos Shumba and Sarah Shumba. He reasoned that given the existence of a statement signed by the late Eliphanos Shumba on 31 December 1991, the applicant could not have foreseen any problems in the matter.

He therefore urged the court to appreciate the need for a speedy resolution of the matter, and, therefore, refer the matter to trial rather than dismiss it.

In response to counsel for the applicant's application, counsel for the respondent argued that the disputes of fact in the matter were reasonably foreseeable. This was moreso in the sense that in his founding affidavit, the applicant stated that the agreement was verbal. Furthermore, the statement relied on by the applicant had documents referred to but not attached. In addition to that, the respondent had also immediately raised the issue of the late Sarah Shumba's consent to the agreement, and the issue of prescription. The applicant had ignored all that and persisted with the application route.

He therefore urged the court to dismiss the application....,.

The disputes of fact which were already before the applicant were correctly summarised by the respondent's heads of argument as follows –

“In applying the law to the facts of this matter, it is clear that there are material disputes of fact in this matter which cannot be resolved on the papers. First and foremost, the applicant seeks to rely on an oral Agreement of Sale in which he alleges that some of the receipts for the payments are missing, and that some payments were in cash, see paras 6-9 of the founding affidavit. There is also a dispute of fact on whether or not the late Mrs. Sarah Shumba consented to the sale of the immovable property since it is common cause that she was a co-owner. The applicant also did not shed any light on the actual terms of the alleged oral Agreement of Sale with regards to the dates when payments should have been made and the date when transfer was due. In any event, and given the fact that the applicant and the late Mr. Elphanos Shumba were friends, and there was mutual trust between them, it is possible that the payments, which appear in Annexures 'A to C' to the court application, could have been for other business transactions. This Honourable Court is referred to the supplementary affidavit deposed to by Elton Shumba, and the concession by the applicant, that there was mutual trust, in para 9 of the founding affidavit and para 5 of his answering affidavit. There is also a dispute of fact with regards to the issue of differences in the signature of the late Mr. Elphanos Shumba. See the Notice of Opposition and the supplementary affidavit deposed by Elton Shumba.”

Given the above, and the contents of the Master's Report, I am unable to be persuaded that the applicant could not have foreseen the potential areas of dispute when he filed this application. There was a clear call for retreating from the application procedure. The applicant refused to retreat.

In Ex-Combatants Security Company v Midlands State University HH80-06, MAKARAU J...,. had this to say regarding proceedings by way of application –

“It further presents itself clearly to me that application procedure is inappropriate to allege and prove a disputed oral agreement, as a resolution of the matter on the basis of the affidavits will lead to an injustice as the advantages inherent in a trial will be lost to the court.”

I fully agree with the above observation.

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the ...

In terms of clause 2 of the agreement, commencement of payment of the balance of the purchase price, in the sum of $8,000=, was to be paid after a grace period which extended from the date of signature up to 30 June 1997. A monthly payment of $750= was to be made with effect from 1 July 1997, and, thereafter, the same amount was to be paid by the first day of each succeeding month until full payment was made.

In terms of clause 3, the seller, being the first respondent, was to deliver vacant possession of the property to the buyer, that is the applicant, within 7 (seven) days from the date of payment of the final instalment. Transfer of the property to the purchaser was to be effected at the same time.

In terms of clause 4, the purchaser was to pay all charges in respect of the property with effect from the month of December, presumably of the year 1997, onwards. The purchaser was also required to develop the property to the level or stage at which the third respondent would approve transfer (cession) of the property, in terms of its by-laws.

In terms of clause 5 of the agreement, the purchaser would pay the monthly instalments into the seller's POSB account, the details of which account would be furnished to the purchaser by the seller. The clause then further provides as follows:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The concluding paragraph is to the effect that the meaning and import of the agreement has been explained to the parties in the Shona language and they have understood the same.

The applicant avers that he paid the full purchase price of the property as evidenced, firstly, by clause 1 of the agreement which acknowledges payment of the initial $10,000=, and, secondly, by receipts, copies of which he attached to his founding affidavit. He also avers that he prepared plans which were approved by the third respondent. In this regard, Annexure C1 to his founding affidavit is a document dated 2 January 2003 addressed to the applicant by the third respondent's City Engineer's department and in respect of the Stand in issue. It informs the applicant that his plans, which were submitted in respect of the Stand in question, have been approved subject to the relevant Municipal Bye-laws and certain conditions stated therein.

Annexure C2, dated 21 June 2005, is also addressed to the applicant by the third respondent's City Engineer's department in respect of the same Stand. It also informs the applicant that one copy of his plan has been “pre-approved” on condition that he adheres to certain conditions also stated therein. It further states that the “pre-approval” is valid for one year from the date stamped on the plans.

Annexure D to the founding affidavit reflects copies of two inspection logs. One is dated 27 July 1999 showing approval by the City Engineer's Department of the stage referred to as “Brickfooting.” The other is dated 27 August 1999 showing approval of the stage referred to as “Hardcore.”

The applicant also avers that he commenced to build on the undeveloped and vacant Stand and has erected a house which is at window level. Then, sometime in June 2005, the first respondent began to interfere with the applicant's access to the premises. This led to the applicant's legal practitioners writing a letter, on 7 July 2005, to the first respondent, and, amongst other things, giving her fifteen days' notice to effect cession of the property into the applicant's name as well as two (2) months' notice to vacate the property.

The first respondent did not cede the property to the applicant. However, the applicant then received a water bill dated 17 July 2006 addressed in the name of the second respondent. This prompted him to make inquiries with the third respondent and he then ascertained that the first respondent had ceded the property into the name of the second respondent. The second respondent was un-cooperative when he approached her. The first respondent became evasive.

The applicant contends that the second respondent ought to have known that the applicant was the new owner of the property as his builders were on site and the plans for the house that was being erected on the property were in the applicant's name. He also contends that the second respondent was reckless and was not diligent in not making inquiries as she would not have purchased the property which he had already purchased. He contends that the cession to the second respondent was done maliciously by both the first and the second respondents.

The applicant prays for an order in the following terms:-

“That:

1. The first and second respondents be and are hereby order and directed to attend at third respondent and cede their rights and title in House No. 6670 Chikanga Phase 3 (St Joseph) Mutare within fourteen (14) days from the date of service of this court order.

2. In the event of the first and second respondents failing to comply with paragraph 1 above the Deputy Sheriff be and is hereby ordered to sign all relevant cession papers for and on behalf of the first and second respondents and the cession papers with the third respondent who is obliged to accept them and effect the cession into applicant's name.

3. Alternatively, the first respondent pays he applicant ten million (10,000,000,000=) or the current market value of the house as approved by two evaluators which ever figure is higher.

4. The first respondent pays the applicant's costs of suit.” (sic)

The first respondent opposes the application and avers that the applicant failed to pay the balance of the purchase price, in the sum of $8,000=, claiming that the payments reflected in the receipts attached as annexures B1, B2, B3, and B4 to the applicant's founding affidavit were meant for supplementary charges and not for instalments towards the liquidation of the balance as alleged.

The applicant claims that if these were instalments meant to go towards the liquidation of the balance of the purchase price, as claimed by the applicant, the applicant would not have paid the higher amount of $1,000= per month instead of the agreed $750= per month. She further alleges that the building plans could not have been in the applicant's name as the Stand was registered in her name and cession had not yet been effected.

The first respondent also alleges that although the applicant built a house to window level, when she started to demand payment of the balance and of water bills and supplementary charges which he had stopped paying, the applicant then ceased building. Then, in February 2005, the applicant stated that he had purchased another Stand in Harare and was no longer interested in developing the Stand in question. She alleges that the applicant then said that all that he wanted from her was $15,000,000= “for the Stand at its state” so that she could have the Stand back from him. She claims that they reached an agreement, and, in pursuance thereof, she raised the $15,000,000=. However, when she tried to contact the applicant so that she could make the payment to him, he could not be found. On two occasions she went to his rural home but failed to find him. When she finally made contact with him, in August 2005, he promised to come and collect the money but never did.

The first respondent contends that the applicant breached their agreement by failing to pay the balance of the purchase price and the supplementary charges and that the property thereby reverted to her. She disputes that the applicant had any building material at the Stand and further disputes that she used such material to construct an outbuilding as alleged by the applicant. As the property reverted to being hers she then sold it to the second respondent in November 2005 and ceded it to her. She further states on her opposing affidavit that as the applicant failed to collect his money, as detailed above, she was thus tendering it.

The first respondent agrees that the applicant was the first purchaser. She however claims that they later agreed that she retain her property, which she did “after having managed to raise the agreed purchase price”. She then thereafter sold the property to the second respondent who was a bona fide purchaser. She claims that she was, at that stage, at liberty to sell the property to anyone.

In supplementary heads of argument filed on behalf of the first respondent, the point is raised, in limine, that the applicant's cause of action is prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].

She submitted therein that the agreement between the applicant and the first respondent having been entered into on 15 November 1996, when this court application was filed on 10 October 2006, it was long after the expiry of three years and as there had been no judicial interruption during the interceding period, the claim had since prescribed. On the merits, it is submitted that there are irreconcilable disputes of fact which no matter how robust the court is, it cannot possibly resolve without hearing viva voce evidence.

The first respondent thus prays for the dismissal of the application with costs.

The second respondent, despite being served with the court application, has filed no opposing papers….,.

THE MERITS

It is true that there is a dispute of fact regarding whether or not the applicant paid the purchase price in full. The payments reflected on the receipts annexures B1, B2, B3, and B4 were made into the first respondent's POSB account, and, in terms of the agreement were meant to be payments of instalments for the balance outstanding in the sum of $8,000=, the initial payment or deposit of $10,000= having been made at the time of the signing of the agreement.

The fact that the applicant paid instalments in the amount of $1,000 per instalment and not $750 as per agreement cannot possibly be a cause for complaint by the seller. Rather, the payment of the outstanding balance was completed in a shorter period than would have been the case had the instalments been paid in the agreed amount. In any event, it cannot be by coincidence that the payments reflected in the said receipts amount to a total of $8,000 which is also the amount of the balance of the purchase price after the initial payment of $10,000.

It is highly improbable that the applicant would give priority to the payment of supplementary charges and water bills whilst neglecting payment of the balance thereby placing himself in breach of a material term of the agreement. Furthermore, the payments having been made into the first respondent's POSB account were also, barring the quantum of each instalment paid, made in accordance with the provisions of the agreement regarding payment of the balance. The payments reflected in the receipts referred to above commenced on 1 July 1997 which date is also stipulated in the agreement as the date of the payment of the first instalment which was to be made after a grace period of about nine and half months that is from 15 November 1996 to 1 July 1997. Other charges in respect of the property were to be paid by the applicant as from December.

For the above reasons, the first respondent's version and claim that the payments in question were not payments towards the liquidation of the balance of the purchase price but rather were for water and supplementary charges is highly improbable in the circumstances. Thus, the dispute of fact is not one that is incapable of resolution on the papers.

On a balance of probabilities the applicant has proved that he paid the purchase price in full. He did not breach the agreement as alleged by the first respondent. The subsequent sale of the property by the first respondent to the second respondent was therefore improper and unlawful. She had no authority to sell it nor title to pass.

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

In order to oppose the granting of the relief sought, the respondent has raised a number of defences to the same. The first ground on which the respondent seeks the dismissal of the application is that there are material disputes of fact such that the matter cannot be resolved on the papers. The material dispute of fact alluded ...

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

The issue of whether there are disputes of fact which cannot be resolved on the papers was not persisted in by the respondent in its heads of argument, and must be regarded as having been abandoned. At any rate, the court may take a robust approach and resolve the apparent disputes. See Sofiantini v ...

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

In light of the clear dispute of fact, the issues can only be resolved by way of trial proceedings.

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

This is an application for an enforcement of a contract....,. The salient facts of this matter are that the applicant and the first respondent entered into an agreement of sale wherein the first respondent sold and the applicant bought Stand No.5495 Cowdray Park, Bulawayo for $224 billion as the purchase price. The first respondent initially acquired the ...

This is an application for an enforcement of a contract....,.

The salient facts of this matter are that the applicant and the first respondent entered into an agreement of sale wherein the first respondent sold and the applicant bought Stand No.5495 Cowdray Park, Bulawayo for $224 billion as the purchase price. The first respondent initially acquired the Stand from one Sibonile Mlilo who has since died and her estate is being handled by the second respondent.

The purchase price was fully paid....,.

All was well until the first respondent began advising the applicant and her husband of his intention to cancel the agreement of sale. The reason for the cancellation is that the purchase price was no longer enough for him to purchase a developed Stand, but, rather, enough to purchase an undeveloped Stand.

Upon receipt of these threats, the applicant applied for an urgent chamber application and obtained a provisional order interdicting the first respondent from selling or transferring the property to any other person pending the finalization of the dispute which first the respondent opposed.

In his opposition, the first respondent argues that the applicant should have, in this urgent application under discussion, disclosed that there was a dispute relating to the estate which was raised at the edict meeting. For that reason, the matter cannot be resolved on the papers. He, however, did not tell the court, what this dispute was about.

It is necessary for the first respondent to have disclosed the nature of the dispute in order to enable the court to assess whether it is the kind of dispute which would necessitate a referral to trial.

The legal position with regards to referral of a matter brought to court by way of an ex parte application is that such a matter can be determined on the basis of affidavits filed of record as long as there is no dispute of facts. In the event of the existence of dispute of facts, the said facts should be such that the matter cannot be determined without resort to oral evidence.

The issue then is; is this the kind of matter which can be resolved on the papers? In my view, it can be.

The dispute, as referred to by the first respondent, is the edict meeting which does not tell the court much. The hurdle as to implementation of this agreement is as a result of the first respondent's second thought about the purchase price.

He freely priced this property and an agreement was reached on that basis. The purchase price was subsequently fully paid. What is left for him is to be honourable enough and fulfil his part of the contract.

The facts are, therefore, very clear, there are no facts which require oral evidence in this matter. The fact that he unilaterally made a mistake about the purchase price, by reason of miscalculation in view of the prevailing inflationary environment is not a legal reason which can justify his resiling from this contract.

HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO)
Ruled By: CHEDA J

It is also the respondent's argument that there is a dispute of facts, and, accordingly, the applicant should not have proceeded by way of application. The legal position is that in motion proceedings the court can only decide issues on affidavit(s) only, if there is no irreconciliable dispute of facts, and can do so without ...

HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS
Ruled By: NDOU J

The applicant is seeking an order in a draft in the following terms: “It is ordered that: (1) Upon tendering of the balance of the purchase price by the applicant, first to fifth respondents be and are hereby directed to take all reasonable steps necessary to effect transfer of Stand 3553 Emganwini, Bulawayo, into applicant's name. (2) In the event ...

The applicant is seeking an order in a draft in the following terms:

“It is ordered that:

(1) Upon tendering of the balance of the purchase price by the applicant, first to fifth respondents be and are hereby directed to take all reasonable steps necessary to effect transfer of Stand 3553 Emganwini, Bulawayo, into applicant's name.

(2) In the event that first to fifth respondents refuse to accept payment, the Deputy Sheriff be and is hereby authorized to accept the money on their behalf and proceed to sign all the necessary documents at 7^th and 8^th respondents' offices to effect transfer of Stand Number 3553 Emganwini, Bulawayo, into applicant's name.

(3) The 7^th and 8^th respondents be and are hereby directed to transfer Stand Number 3553 Emganwini, Bulawayo into applicant's name.

(4) First to fifth respondents are to pay the costs of this suit on an attorney-client scale.”

The salient facts of the matter are the following.

The first respondent is the estate of the late A Mtsana. The second, third, fourth and fifth respondents are the late A Mtsana's children.

During her lifetime, the late A Mtsana entered into an agreement with the applicant for the sale of a Stand yet to be identified by the late at a total cost of $18 million to be paid in fixed monthly installments. Only the second respondent was privy to this agreement, the third to fifth respondents were not.

As per the agreement, the first respondent secured Stand Number 3553 Emganwini, Bulawayo for the applicant. It is apparent from the annexures filed by the applicant that both the applicant and the late A Mtsana signed the agreement which stipulates that the price was varied to $100 million and that the Stand was then identified as 3553 Emganwini. The annexures A-C contain the agreement between the late A Mtsana and the applicant and it is in the following terms:

“27 September 2004

UHebert Mabunu Sikosana I.D. 08-282566 N 73 ubhadale i$2,000,000 eyestand. Cost $18,000,000. Balance $16,000,000.

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed)

5 October 2004

Paid $3,000,000

Balance $13,000,000

S Ncube (signed)

H Sikhosana (signed)

A Mtsana (signed)

24 October 2004

Paid $2,000,000

Balanace $11,000,000

S Ncube (signed)

A Mtsana (signed)

7 November 2004

Paid $2,000,000

S Ncube (signed)

Balance $9,000,000

A Mtsana (signed)

Herbert (signed)

20/11/04

Paid $1,000,000

Balance $8,000,000

S Ncube (signed)

A Mtsana (signed)

11/12/04

Paid $1,500,000

Balance $6,500,000

A Mtsana (signed)

S Ncube (signed)

New Year 2005

19/01/05 Mr H Sikhosana

Paid $3,000,000

Balance $3,500,000

S Ncube (signed)

A Mtsana (signed)

8-03-05

Paid $2,000,000

Balance $1,500,000

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed)

Sale of Stand No. 3553

Continued from 27 September 2004

$100,000,000

$16,500,000

Balance $83,500,000

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed).”

It is beyond dispute that the late Mtsana and the second respondent signed against each payment that the applicant made. It is beyond dispute, from the foregoing, that the applicant and the late Mtsana signed for the variation. The only term varied is the purchase price which was increased from the initial $18 million to $100 million.

The late A Mtsana died in April 2005 when the agreement between the parties was still valid and effective. It was after the deceased's death, when the applicant went to make his payment, when the second to fifth respondents refused to accept the money and advised the applicant that they were now cancelling the contract prompting the applicant to seek redress in this court via this application.

In opposing this application, the third respondent then filed an opposing affidavit allegedly on behalf of the first to fifth respondents.

The opposing papers raised the following issues:

(a) The applicant has used the wrong procedure as he should have proceeded by way of summons;

(b) That the applicant has nothing against the respondents since he did not know the property he was purchasing at the time of contracting;

(d) That a new term of the contract was introduced at the time of the variation in terms of which the applicant was required to pay $40 million immediately upon signing the agreement and that he failed to fulfill this obligation.

I propose to consider these issues in turn.

1. Whether the dispute cannot be resolved on affidavit

In my view, the essential issues in casu are common cause or at least beyond dispute between the parties, and, further, the outstanding disputed issues can easily be resolved on the papers even without adopting a robust approach. In the circumstance, the application procedure was the proper method of bringing this dispute before this court.

It is common cause, as evinced by the above written agreement, that the applicant and the late A Mtsana, who was assisted by the second respondent throughout, entered into an agreement of sale of a Stand yet to be identified by the said A Mtsana at a total cost of $18 million to be paid in monthly instalments. The applicant was substantially complying with his obligations though at times he failed to pay the full installment. The late A Mtsana and the second respondent would receive these instalment amounts including those payments less than the full installment and acknowledge payments by signing on the above-mentioned document together with the applicant.

It is beyond dispute that the deceased eventually offered Stand Number 3553 Emganwini to the applicant and the latter accepted the offer. As highlighted above, the applicant and the late A Mtsana, upon finally agreeing on the actual Stand, varied the terms of the contract by increasing the purchase price from $18 million to $100 million.

This new agreement was also reduced into writing in March 2005.

It is also beyond dispute that annexures A to C, whose contents have been articulated above, are genuine documents done by the applicant and the late A Mtsana and witnessed by the second respondent. In particular, the authenticity of these documents is not disputed in the opposing papers of the respondents. The only disputed factual issue is the allegation by the third respondent that when the agreement was varied, the applicant was supposed to pay $40 million immediately upon signing the agreement and that the agreement fell away after the applicant failed to pay the said amount. This is the only contentious issue in this matter. This issue does not warrant the hearing of oral evidence for a variety of reasons that follow.

First, it is common cause that the third respondent was at no point involved in the dealings between the applicant and the late A Mtsana. Both the initial and varied agreements were executed only in the presence of the second respondent. As the second respondent had the personal knowledge of the facts deposed to, she was supposed to file an affidavit on this issue. She did not.

Second, the parties, throughout their dealings in respect of this agreement, reduced every step into writing. Nowhere in the agreement was it recorded that the applicant was to pay $40 million instantly. This issue is absent from the written agreement because it was never part thereof and it is a mere creature of the third respondent.

It is trite that even where there are dispute of facts, the court should endeavour to resolve these without hearing oral evidence if that can be done without doing an injustice to either party.

In casu, the facts are really not in dispute and the rights of the parties depend upon a question law, there is a manifest advantage in dealing with the matter by the speedier and less expensive method of application – Frank v Ohlsson's Cape Breweries Ltd 1924 AD 289…, and Van Rensburg v Van Rensburg en Andere 1963 (1) SA 505 (A).

As alluded to above, the issue of the instant payment of $40 million can only be determined on the considerations of probability without involving also the credibility of witnesses giving evidence viva voce – Less and Anor v Bornstein & Anor 1948 (4) SA 333 (C) and Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).

It is trite that the determination of the question whether a real and genuine dispute of fact exists is a question to be determined by the court – Ismail & Anor v Durban City Council 1973 (2) SA 362 (N)…,. The respondent's allegation of the existence of such a dispute is not conclusive.

In Peterson v Cuthbert & Co Ltd 1945 AD 420…, it was held:-

“In every case, the court must…, see whether in truth there is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence. If this were not done, the respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant.”

See also Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)…, and The Civil Practice of the Supreme Court of South Africa (4^th Edition), HERBSTEIN and VAN WINSEN…,.

In casu, the third respondent has raised a fictitious issue of fact which is not contained in the written agreement of the parties.

As rightly pointed by PRICE JP in Soffiantini v Mould 1956 (4) SA 150 (E)…,.:

“If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to court on motion, then motion proceedings are worthless; for a respondent can always defeat or delay a petitioner by such device. It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the court can be hamstrung and circumvented by the most simply and blatant stratagem. The court must not hesitate to decide an issue of fact of affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in the facts.”

Lalla v Spafford NO & Ors 1974 (1) SA 191 (R) and Joossab & Ors v Shah 1972 (4) SA 298 (R)….,.

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

While this is ex facie a dispute of fact, I have considered it to be non-material, and that it should not deter me from disposing of this matter on some other basis.

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

It was the second respondent's counsel's submission that the burden of proof required is that of a balance of probabilities as in ordinary civil matters. In the first place, the applicants have to prove that the second respondent despoiled them. Since this is disputed by the second respondent, a dispute of fact has arisen and cannot ...

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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 of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii)...,.

(iii)...,.

(iv) Whether the first respondent conducted the election of the Speaker properly and procedurally and whether Members belonging to the MDC-T party displayed their votes to their colleagues in Parliament.

(v) Whether the requirements of a secret ballot, as enjoined by the Standing Orders and the Constitution, were violated.

(vi) Whether the above irregularities, if any, justify setting aside the election of the second respondent as Speaker....,.

Conduct of Election

At the beginning of the election in casu, the first respondent laid out, in some detail, the procedure to be followed. However, during the election process, there were several deviations from the procedure prescribed, as appears from the papers and exhibits filed herein. In particular, some Members folded their completed ballot papers outside the polling booth and several MDC-T Members openly displayed their ballot papers to their colleagues. Again, most of the Members did not leave the Chamber after casting their votes.

All in all, it would appear that the first respondent did not stamp his authority on the conduct of the proceedings and was unable to prevent or stop the above-mentioned irregularities.

In his opposing papers, the first respondent explains that the membership of the House of Assembly had increased from 150 to 210 Members, all of whom were now elected and the majority of whom were opposition MDC Members. These factors contributed to a more exuberant atmosphere in the House which affected the dynamics of the election process. However, according to the first respondent, the proceedings were not disorderly or chaotic and all the Members in the House were able to vote freely and without any impediment.

Violation of Secret Ballot Requirements

Counsel for the applicants submits that the displaying of votes by participants in any election, as a matter of principle, violates the secrecy of the ballot because the votes displayed become known and influence the voting behaviour of the other participants.

In the specific case of an election to the position of Speaker, there are several compelling reasons for maintaining the secrecy of the ballot. On the one hand, the person elected to that position should remain unaware of how particular Members voted in order to retain his or her impartiality in the proceedings of the House. On the other hand, Members should be able to elect a Speaker endowed with the requisite authority and independence without fear of sanction from their political party or constituency. Moreover, according to the Lectric Law Library Lexicon (at www.lectlaw.com), the term “secret ballot” is defined as:

“The expression by ballot, voting machine, or otherwise but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.”

As against this, counsel for the first respondent contends that only 6 out of the total number of 208 Members were specifically identified by the applicants as having displayed their votes. Therefore, there was substantial compliance with the secret ballot requirement. In any event, she submits that the definition relied upon by the applicants is overly theoretical and technically deficient. A more functional definition is provided in Webster's New College Dictionary with the following essential elements:-

The provision of official ballot papers printed at public expense; on which the names of the nominated candidates appear; which are distributed only at the polling place; and which are marked in secret.

Again, in Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD)…, the requirements for a secret ballot were held to be as follows:-

Only those qualified must vote; the number of votes cast and the votes for and against must be counted; each voter must be able to vote privately and in secret; only the votes of eligible voters must be counted.

In essence, so long as voters are able to cast their votes in secret, they are entitled to voluntarily display their votes to others, in keeping with the freedom of expression guaranteed by section 20 of the Constitution.

Counsel for the second respondent also relies on Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD) for the proposition that the requirements of a secret ballot are designed to protect voters from having to display their votes. Therefore, a voter can waive the secrecy of his own vote by free choice. This is a right vested in the voter himself.

In the instant case, the crucial question is whether or not it was reasonably possible for the Members in the House to cast their votes in secret.

In this regard, he submits that all the Members marked their ballots in secrecy within the polling booths provided. None of the Members complained of having been coerced or pressurised to expose their votes. Moreover, the applicants' claim that the majority of the MDC-T Members displayed their votes is not borne out by the evidence. In any event, those Members who did display their votes did so purely voluntarily without complaining that their voting rights had been violated. In short, such voluntary disclosure did not violate the secrecy of the election vote.

Whether Setting Aside of Election Justified

As regards the conduct of the election in casu generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent.

In this situation, the approach to be adopted was explained by GUBBAY JA in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…, as follows:

“It is, I think, well established that, in motion proceedings, a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.”

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic.

On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided. Taking into account the usual volatility associated with the conduct of Parliamentary business generally,

I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion.

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA
Ruled By: BHUNU J

The applicant's deponent contradicted himself on a material point of fact upon which its application hinged thereby rendering the veracity of its affidavit unreliable and highly questionable. The onus of proof lay on the applicant. It chose to discharge that onus on the papers without viva voce evidence. In doing so, it was taking a deliberate ...

HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO
Ruled By: PATEL J

In my view, all of the abovementioned aspects of this case cannot be properly determined on the papers before the court. They require thorough ventilation by way of viva voce evidence in a full trial of the matter. In the result, the application for provisional sentence in terms of Rule 20 is hereby dismissed and the ...

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and terminating on 30 June 2007.

The second and third defendants, as directors of the first respondent, bound themselves as co–principal debtors under the lease agreement.

In July 2009, the applicant filed this application seeking an order evicting the respondents from the rented premises. In its founding affidavit, it averred that the respondents had breached the written lease agreement by failing to pay rentals and operating costs for the premises since January 2009. The amount of arrear rentals and outstanding operating costs was also prayed for in the order.

It is pertinent, in my view, that, at this stage, before I detail the opposition that was filed by the respondents, I comment on the manner in which the applicant proceeded to frame its cause of action against the respondents.

The applicant has alleged that the respondents are in breach of the written lease agreement of 2006.

It is common cause that the written lease agreement between the parties terminated by the effluxion of time in June 2007. As at the time of the filing of the application, it was no longer binding upon the parties and could thus not found a cause of action for the applicant.

Its terms and conditions may have continued to afford the respondents protection against eviction under the operation of the provisions of the Commercial Rent Regulations S.I. 276/83(“the Regulations”), under what is commonly referred to as statutory tenancy.

This is however not part of the averments made by the applicant in its founding affidavit.

In my view, statutory tenancy is not an issue that the court should take judicial notice of mero motu. It must be specifically pleaded as it brings into play different considerations regarding the respective rights of the parties. It is a separate cause of action, apart from the terminated lease agreement.

I shall avert to the provisions of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) in detail below.

At this stage, the point I am making is that the applicant could not validly seek to rely on an agreement that had terminated without first laying a legal basis for its revival so to say. As I shall show later, this may have fatally compromised the applicant's quest to recover its property from the tenant.

In opposing the application, the respondents argued, that, the written agreement between the parties provided for payment of rent in local currency, and, when that currency lost favour with traders and generally, the applicant sought to impose a rental in United States currency with the parties failing to reach agreement on the amount payable.

Again, I pause to make the point, that, the respondents were clearly relying on the protection against eviction afforded them by the Commercial Rent Regulations but did not specifically raise that defence in their papers.

In moving for the granting of the order sought in the draft, the applicant urged me to find that the parties had a written lease agreement, that, in terms of that lease agreement, the first respondent was obliged to pay rentals and operating costs monthly and in advance and that in breach of that agreement, the first respondent failed to pay any rent or operating costs from January 2009 to the date of the filing of the application.

As indicated above, the applicant's argument is flawed in one or two respects and does not flow from the facts that are common cause:

(i) Firstly, the written lease agreement terminated in July 2007. As from that date, the first respondent became a statutory tenant and the expired lease agreement can no longer found a cause of action between the parties.

The first respondent, in my view, can now only be competently evicted in terms of the provisions of the Rent Regulations.

It is common cause that the applicant is not proceeding in terms of the Rent Regulations, but is proceeding ex contractu, alleging breach of the written agreement.

(ii) Secondly, and assuming that the written lease agreement between the parties is still subsisting, then, in that event, the first respondent's obligation is to pay rentals monthly in advance in local currency. The obligation to pay rentals monthly in advance must have been imposed by some other agreement which has not been pleaded.

The applicant has urged me to find that the agreement to levy rentals in foreign currency, and in the sum of US$700 per month, was reached between the parties at a meeting that was held on 12 May 2009.

I cannot agree.

It is common cause, that, on 8 May 2009, the applicant addressed a letter of demand to the first respondent, claiming payment of the sum of US$4,497=75 as arrear rentals and the sum of US$1,772=81 as unpaid operating costs.

The parties met on 12 May 2009 to discuss the demand.

On the same day of the meeting, the first respondent responded to the letter of demand in writing, acknowledging the letter of demand and advising that at the meeting held with the applicant's representatives, it had been agreed that the first respondent would pay one thousand dollars towards the arrear rentals and the balance over two or three weeks.

It is worth noting that the meeting of 12 May 2009 was in response to the applicant's letter of demand. By then, the amount of the arrear rentals had already been calculated. In other words, the breach had already occurred.

It appears to me, that, by January 2009 the parties had not yet agreed on the rental payable for the premises.

As detailed above, the applicant seeks to rely on the alleged agreement concluded on 12 May 2009 - some five months after the alleged breach.

If the parties had agreed to the rentals in January 2009, why would they need to meet over the same issue in May?

Similarly, if the parties had not reached agreement on the rentals in January 2009, on what basis can they be held to have breached the contract before the parties had reached agreement on it?

These are questions that will go begging for an answer, as, in my view, the applicant has placed its cart before the horse. It has proved the breach before proving the agreement breached!

Assuming that I have erred in concluding that the applicant has placed its cart before the horse and that by application of some other legal principle, not argued before me, the applicant could prove that the agreement reached on 12 May 2009 could apply retrospectively, then, the denial of the agreement by the respondent would raise a material dispute incapable of resolution on the basis of the papers filed of record.

I have considered whether I can convert the proceedings before me into an action by referring the matter to trial.

In view of the reservations that I have regarding the cause of action that the applicant has pleaded in this matter, I am of the view that such exercise of discretion will not have the effect of saving to expedite the resolution of this matter or of saving costs.

HH98-10 : FIONA EVELYN TAISEKWA JIRIRA vs ZIMCOR TRUSTEES LIMITED and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

The first respondent vehemently denied the Agreement of Loan and averred that the parties concluded an Agreement of Sale in respect of the property described in the Agreement. It also denied that the applicant was deceived at any stage into signing the Agreement of Sale and the various other documents that she signed in preparation ...

At the hearing of the application it was apparent that there is a material dispute of fact arising from the application that cannot be resolved on the basis of the papers filed of record.

The applicant alleges that the parties concluded an Agreement of Loan and not an Agreement of Sale. She, however, does not explain in detail why she signed the Agreement of Sale and all the other documents she has listed in her founding affidavit. She simply deposes to the fact that she was deceived into signing these documents and does not give the details of the deceit. It must have been apparent to the applicant and her legal practitioners, when she approached the court for relief that she would have to explain why the Agreement of Sale had to be set aside as it is the transaction for which contemporaneously made documents can be produced. She knew that the respondent was insisting on upholding the Agreement of Sale and would allege that this was the only binding agreement between the parties.

When the materiality of the dispute of fact was brought to his attention counsel for the applicant submitted that the court should use its discretion to refer the matter to oral evidence with the papers filed of record standing as summons and appearance to defend respectively.

As correctly submitted by counsel for the first respondent, this is a difficult case for the court to use its discretion in favour of the applicant. Such discretion will fly in the face of the remarks made by McNALLY JA..., in Masukusa v National Foods 1983 (1) ZLR 232 (HC)..., where, when faced with an apparent dispute of fact, he asked himself the question –

“Should I, nevertheless, in the interests of saving costs and generally getting on with the matter condone the wrong procedural approach?”

The learned judge was of the view that it would be wrong to do so.

I am of the view that it would be wrong for me, in the application before me, to condone the wrong procedure adopted by the applicant and keep the ball in the court as it were in an effort to save costs. The reasons that present themselves to me are not dissimilar to the reasons that McNALLY JA advanced for taking a similar approach in the Masukusa v National Foods 1983 (1) ZLR 232 (HC) matter. Firstly, the dispute of fact in this matter did not arise from the nature of the defence proffered by the respondent in the opposing affidavit. It is part of the applicant's case. The applicant deposed to facts in her founding affidavit that were neither common cause nor capable of proving by way of affidavit. Her allegations needed viva voce evidence to explain and she proceeded by way of application notwithstanding; but at her own peril. Secondly, the nature of the case that the applicant sought to portray is one that clearly cannot be proved on paper and by way of affidavits. It requires the parties to give oral evidence and to be examined on their evidence to find out where the truth lies. It is a case, in my view that will ultimately turn on the credibility of the witnesses; and affidavits have no colour save the colour of the paper on which they are typed. There is no proven way of ranking affidavits in terms of veracity. One simply cannot find one affidavit more credible than the other.

In view of the vague cause of action that the applicant is relying on, it is my view that it will serve no purpose for me to refer the matter to trial with the papers standing as summons and appearance to defend respectively.

HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED
Ruled By: BHUNU J

The basis of the applicant's claim for breach is non-payment of dues including royalties. It also claims breaches of procedures to enable calculation of amounts due and owing to it. The respondents vehemently denied breaching any of the terms of the Agreement as alleged or at all. They alleged that all payments were made in terms ...

HH172-10 : COTTON GINNERS ASSOCIATION vs SINO ZIMBABWE COTTON HOLDINGS (PVT) LTD and AGRICULTURAL MARKETING AUTHORITY
Ruled By: CHIWESHE JP

Some of the facts in this matter are by no means common cause. The contradictions can only be resolved by hearing viva voce evidence and possibly going on the ground to examine the factual position. In any event, the order that the applicant seeks is so drastic and far reaching that a reasonable court would be ...

HH176-10 : JOYCE CHAGADURA vs SHELLY ANTONIO and REGIS MUVEREGI and DIRECTOR OF HOUSING CITY OF HARARE and SHERIFF OF THE HIGH COURT
Ruled By: GUVAVA J

When this matter commenced before this court it was by way of court application. This court, in its judgment of 26 April 2006, ordered that the matter be referred to trial so that the parties could fully ventilate the issues between them. The matter was thus delayed by the issuance of new process and subsequent referral to ...

HH179-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD and ROCKMOUNT TRADING (PVT) LTD
Ruled By: MTSHIYA J

A perusal of all the papers before me, and an analysis of the submissions from all parties, leads me to the conclusion that this matter cannot be resolved on the basis of papers filed of record without the need for viva voce evidence. I find myself unable to deny the second respondent's submission that ...

The second respondent correctly lists the material disputes of facts as -

“> The date on which the second respondent took occupation of the premises in dispute;

Ø The bona fides of the second respondent;

Ø The extent of repairs and renovations made by the second respondent;

Ø The equipment left by the applicant at the premises in dispute; and the ownership of the said equipment.”

Whereas the second respondent avers that it took occupation of the premises in December 2009 on the basis of a lease agreement signed on 15 November 2009, the applicant states that the second respondent only began operations at the premises after being served with this application on 24 March 2010. Furthermore, whilst the second respondent argues that the applicant knew, as from 4 February 2010, of all developments at the premises, the applicant, on its part, states that the second respondent took occupation of the premises being fully aware that the High Court had already set aside the eviction order of the lower court. The first respondent also states that it informed the applicant of the new lease arrangements with the second respondent and hence the correspondence between the parties' legal practitioners regarding the property of the applicant. All in all, the applicant denies that the second respondent was an innocent actor in the developments that led to it taking occupation of the premises.

Given the above disputes of facts, I do not think that this court is in position to take a robust view in resolving the dispute. The material disputes of fact cited above, cannot, in my view, be resolved through an application. There would, therefore, be need for viva voce evidence in order for the dispute to be resolved.

This finding means that the matter ought to have been brought by way of action rather than application.

HH132-10 : CABINET MACHINGAMBI and PATRICIA CHIMBALAMI and SIMBAI MANGENA and OTHERS vs DOUGLAS NYAUDE and D. MNETSI ENTERPRISES and REGISTRAR OF DEEDS
Ruled By: BHUNU J

Whether or not the applicants consented to the variation of the price stipulated in their original contract of sale is a factual dispute incapable of being resolved on the papers. On the papers, it cannot be ascertained whether or not the applicants were present at the stakeholders meeting which allegedly unanimously ratified the unilateral increase of the ...

HH136-10 : LOCAL AUTHORITIES PENSION FUND (PVT LTD vs MOONLIGHT PROVIDENT ASSOCIATES (PVT) LTD
Ruled By: HUNGWE J

The respondent raised one major point which is that the alleged agreement that rent be fixed at US$9,000= was later qualified by a subsequent letter from the respondent's legal practitioners in which a claim for overpayment in Zimbabwean dollars was made. This overpayment must necessarily lead to the debatement of the accounts relied upon by the applicant. Further, by the letter dated 27 May 2009, the respondent surrendered the whole of the 5^th floor and part of the 6^th floor, therefore, so the argument goes, the claim for arrear rentals from that date at US$9,000= is unsustainable. The agreement to pay US$9,000= is denied.

The respondent further claims that there are triable issues which led to the withdrawal of the initial court action brought by the applicant under HC407/09 which remain extant.

In its answering affidavit, the applicant denies that any overpayment was ever made to it for rent as rent was always paid per month. Due to the hyperinflationary environment which prevailed in the economy then had any suggestion for prepayment been made it would have been rejected. The applicant states that the withdrawal of the court action was prompted by other considerations than those raised in the opposing affidavit or the admission that there was a defence to its claim. The applicant states that the reason for the withdrawal was that the action did not specify the period for which arrear rentals arose. In that regard, they agreed with the legal practitioners who raised the issue but did not agree with the rest of the issues raised. As evidence in rebuttal, the applicant relies on a letter addressed to it by the respondent's legal practitioners which letter accompanied the so-called overpayment. The letter is dated 7 January 2009 and states-

“The above matter refers.

Find attached rentals for the month of December 2008 deposited in your CB Richard Ellis's Standard Chartered account. Let us know if there is any prospect for us to have a roundtable conference.”

The applicant said that the same legal practitioners were to write, on 6 February 2009...,-

“We refer to your letter dated 27 July 2008 contents which we have noted. Meanwhile, our client is hereby tendering the sum of US$9,000= as rentals for February 2009. Let us have the Foreign Currency Account to enable us to effect transfer.”

They were duly furnished with the Foreign Currency Account - but no payment was made.

By 27 May 2009, the respondent's Finance Manager was still acknowledging that the rent for the four floors was US$9,000= but offering to move out of the 5^th floor with adjustments being made to the rentals.

It seems to me that no real dispute of fact arises in this matter.

First, the respondent avers that there was no agreement as to rentals after the written lease agreement expired.

If this is the case, one wonders why the respondent suggested a figure of US$9,000= as being fair rental. I am not persuaded to accept, as counsel for the respondent urged me to, that the matter must be considered on the basis that there was no lease because the rentals were not fixed by the clause that saved all other provisions of the agreement. The fact in this matter is that the respondent itself suggested an amount of money which, in its financial wisdom, it deemed to be fair rental. This amount was accepted by the applicant as the agreed rental. To suggest, therefore, that no lease agreement existed will be to destroy the agreement of the parties themselves.

Second, the claim that the legal practitioners who acknowledged the outstanding arrear rentals had no authority to do so cannot be seriously made in the absence of such an admission by the concerned legal practitioners. An affidavit to this effect could have easily been obtained if it was true that they had no authority to make the admissions they made.

Thus, in my view, the respondent freely admitted its indebtedness to the applicant in the sums now claimed....,.

Fourth, the suggestion of overpayment of rental of Zimbabwe dollars is not made in good faith. Had the respondent made an overpayment, or a payment in advance of its rentals, to the applicant, common sense tells us that this would have been raised at the earliest opportunity – which is the months following the overpayment or payment in advance. Subsequent communication between the parties would certainly have reflected this claim of advance payment. Nowhere is this suggestion made till the matter is handed over to legal practitioners. Curiously, there is no explanation why this advance payment issue was never raised when the applicant demanded its rentals.

It is clear that this is merely being raised now for the purpose of delay.

Had the respondent not themselves suggested the rentals of US$9,000= it may be within their rights to argue that no rentals were fixed after the adoption of the multi – currency economic regime.

HB10-11 : JENNIFER NDLOVU [nee NYONI] vs CHRISTINA NDLOVU [nee SITHOLE] and ASSISTANT MASTER OF THE HIGH COURT and ADDITIONAL ASSISTANT MASTER, TREDGOLD
Ruled By: MATHONSI J

This is a dispute involving the estate of the late Charles Mbunji Ndlovu who died intestate on the 26th May 2002. The matter was commenced by court application which was opposed only by the first respondent. By consent order granted by CHEDA J on 14th February 2007, the matter was referred to trial with ...

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

At the hearing of the court application it was apparent to me that there was a clear dispute of fact regarding whether or not the applicant was still married to the deceased at the time of her death. With the consent of both parties I proceeded in terms of Rule 239(b) of the High ...

HH212-10 : MAXWELL MUTOKO vs CHARITY MUKURO (In her capacity of executor in the estate late Jayison Mukuro) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

The second point was that the applicant has adopted the wrong procedure as it must have been evident that there were disputes of fact that needed the calling of viva voce evidence. She contended that the matter cannot be resolved on the papers only. The factual disputes she pointed out included her denial that Virginia Phiri ...

The factual disputes she pointed out included her denial that Virginia Phiri is a surviving spouse. She contended that she was the only spouse to the late Jayison Mukuro. She denied that Virginia Phiri was staying at House No. 596 Section 2, Kambuzuma. She, instead, said she is the one who is residing at that house and she has been so resident there since 1966 when she got married to the late Jayison Mukuro. She went on to say that she had never stayed at No. 6 Mahwemashava Zengeza 3 Chitungwiza. From the time they bought that residence it is their nephew who has been residing at that residence. The first respondent went on to say that these are disputes of fact that are well known to the applicant.

The second point in limine on material disputes of fact.

The first respondent contended that there are material disputes of facts that are apparent and as such the applicant should have proceeded by action and not by application. The applicant's response to this point was unclear, as, in his answering affidavit, he did not dispute that there were indeed disputes of fact. In his submissions to court the applicant's counsel urged the court to take a robust approach and decide the application on the papers as filed of record. The first respondent's counsel, on the other hand, maintained the stance that the application cannot be resolved on the papers as the disputes of fact are material.

It is trite that where there are disputes of fact the motion procedure should not be adopted. Where disputes of fact become apparent a court may take a robust approach to the conflicts of facts and decide the case where it thinks that it can solve the issue despite the apparent conflict. In Masukusa v National Foods Limited and Another 1983 (1) ZLR 232 (H) McNALLY J…, had occasion to deal with circumstances a court may take a robust approach as advocated by the applicant's counsel. At p235 he stated that -

“A court will take a robust view of conflicts of fact where it thinks it can solve the issue despite the apparent conflicts.”

The question that arises is whether this is a case where the court can resolve the matter without the need for resolution of the conflict in the facts.

I am of the view that the disputes of fact, as pointed out by the first respondent, are fundamental to the relief the applicant is seeking. The applicant's case is based on his assertion that Virginia Phiri is a surviving spouse of the late Jayison Mukuro and was the one residing at No.596, Section 2, Kambuzuma at the time of Jayison Mukuro's demise. The first respondent disputes that. She indicated that she was the only spouse of the late Jayison Mukuro and she is the one who has been staying at No.596, Section 2 Kambuzuma since her marriage to the late Jayison Mukuro in 1966. It is not disputed that the question of whether or not Virginia Phiri is a surviving spouse of the late Jayison Mukuro has been known to the applicant for a long time. Indeed, the applicant has been before these courts in HC9730/02 and SC54/05. He knew, from the opposition of the first respondent to his application in those cases that the first respondent was disputing that Virginia Phiri was a surviving spouse of the late Jayison Mukuro. In Masukusa v National Foods Limited and Another 1983 (1) ZLR 232 (H)…, the judge quoted with approval the words of CENTLIVRES CJ in Adbro Investment Co. Ltd v Minister of the Interior 1956 (3) SA 345 (AD)…, wherein the learned judge said that-

“Where the facts are in dispute the court has a discretion as to the future course of the proceedings. It may dismiss the application with costs or order oral evidence in terms of any Rule of Court. The first course may be adopted when the applicant should have realized, when launching his application, that a serious dispute of fact was bound to develop.”

At p236E-G MCNALLY J went on to say that-

“Now, in the present case, I have not the slightest doubt that the applicant should have realized that a serious dispute of fact was bound to develop as between himself and both respondents. Should I, nevertheless, in the interest of saving costs and generally getting on with the matter condone the wrong approach? In my view, it would be wrong to do so. There are a number of reasons. In the first place, this is a very clear example of the wrong use of the procedure. The conflicts of fact were glaring and obvious, and were, in fact, referred to in the applicant's affidavit…,.”

The above statement by the learned judge in that case equally applies to the circumstances of this case. It was obvious from the onset that the issue of Virginia Phiri's status was disputed and the contention that she was the one residing at No. 596, Section 2, Kambuzuma was disputed. The applicant, in fact, mentioned those aspects in his founding affidavit. These are also disputes that had been evident from the prior court cases between the applicant and the first respondent. The applicant knew that he would be required to prove that his mother was a surviving spouse of the late Jayison Mukuro and that she was the one residing at the house in dispute at the time of Jayison Mukuro's death. The letter from the City of Harare the applicant tendered was highly inadequate to prove the contentious facts. Not only was the letter not specific as to its point in time, but it did not identify the subject of its application. That letter reads as follows –

“RE: CHARITY MUKURO- V- MAXWELL MUTOKO.

I refer to your letter referenced DE/MM/2000 dated 26^th October 2000. Virginia Phiri was registered in our records, but she was later cancelled.”

If anyone were to use such a letter as evidence that Virginia Phiri was a surviving spouse of the late Jayson Mukuro and that at the time of his demise she was the one living at House No. 596, Section 2, Kambuzuma they would certainly need to call viva voce evidence as the letter is bereft of such information.

I am of the view that from the above this is not one of the cases where a robust approach would do justice to the case. It is a case deserving of dismissal. This is a case where the court must show its displeasure at the procedure adopted by the applicant, moreso, at his insistence on the procedure even when, from his own papers, it was clear that he knew there were disputes of fact that needed to be resolved before the order he sought could be granted.

Accordingly the applicant's application is hereby dismissed with costs.

HH213-10 : CEPRAT FARMING (PVT) LTD vs BRIGHTLAND FARMING (PVT) LTD
Ruled By: MTSHIYA J

It was the applicant's submission that the application procedure followed was correct because there were no material disputes of fact in the case. In view of the foregoing, and taking a robust approach to this case, as I believe I must do, I am unable to accept that there are material disputes of facts to ...

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Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

HH52-09 : NEIL BRUCE vs ECONET WIRELESS (PVT) LTD and CITY OF HARARE Ruled By: OMERJEE J

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT Ruled By: GUVAVA J

Appealed HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS Ruled By: KUDYA J

HH72-12 : STUPENDIS ENTERPRISES (PVT) LTD vs ADMIRE KASI and SARAH KASI and THE REGISTRAR OF DEEDS and COMMISSIONER-GENERAL, ZIMBABWE REVENUE AUTHORITY Ruled By: HUNGWE J

HH175-12 : VICTORIA FOODS (PVT) LTD vs TRINPAC INVESTMENTS (PVT) LTD and MEDWORTHS PROPERTIES (PVT) LTD Ruled By: CHIWESHE JP

HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS Ruled By: MAKARAU JP

SC11-09 : CAPS UNITED FOOTBALL CLUB (PRIVATE) LIMITED vs CAPS HOLDINGS LIMITED AND THREE OTHERS Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HH35-12 : DEBRAH GLORIA KOUMIDES vs PAUL KOUMIDES Ruled By: GUVAVA J

HH41-12 : TAMABOGA NYAMHUNGA AND THIRTY EIGHT OTHERS vs ENIAS MUMVURI AND TWO OTHERS Ruled By: CHIWESHE JP

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER Ruled By: MUTEMA J

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER Ruled By: MUTEMA J

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER Ruled By: MUTEMA J

HH173-12 : PRIKISI MUTIMHODYO vs SANANGURAI KUBIKU and GUTU DISTRICT ADMINISTRATION AND TWO OTHERS Ruled By: CHIWESHE JP

HH181-12 : JENNIFER NYAMAKURA vs AGRIPPA MUZENGI Ruled By: CHITAKUNYE J and MAWADZE J

HH185-12 : CHITUNGWIZA MUNICIPALITY vs DELATFIN INVESTMENTS (PRIVATE) LIMITED Ruled By: CHIWESHE JP

HH196-12 : SWINDALE PROPERTIES AND BRIGHT TECH ENTERPRISES (PVT) LTD AND ANOTHER vs VENENCIA MADAKE Ruled By: CHIWESHE JP

HB01-12 : NKULULEKO MABHENA vs P.G. INDUSTRIES (ZIM) LIMITED AND P.G. ZIMBOARD PRODUCTS (PVT) LTD AND ANOTHER Ruled By: KAMOCHA J

HB01-12 : NKULULEKO MABHENA vs P.G. INDUSTRIES (ZIM) LIMITED AND P.G. ZIMBOARD PRODUCTS (PVT) LTD AND ANOTHER Ruled By: KAMOCHA J

HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED Ruled By: PATEL J

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

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

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING Ruled By: GOWORA J

HH133-09 : EZERA MUSHANDIKWA vs NATIONAL RAILWAYS OF ZIMBABWE AND THE DISTRICT CIVIL ENGINEER N.O. FOR NATIONAL RAILWAYS OF ZIMBABWE Ruled By: MTSHIYA J

View Appeal HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON Ruled By: MAVANGIRA J

HH158-09 : WILTON RENSBURG vs MARKO MAVHURUME N.O. and THE REGISTRAR OF DEEDS N.O and THE DEPUTY SHERIFF Ruled By: MTSHIYA J

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING) Ruled By: MAVANGIRA J

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH Ruled By: GOWORA J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA Ruled By: HLATSHWAYO J

HB02-09 : NDUMISO DUBE vs LEONARD DUBE Ruled By: KAMOCHA J

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO Ruled By: CHEDA J

HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO) Ruled By: CHEDA J

HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS Ruled By: NDOU J

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER Ruled By: MAKARAU JP

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE Ruled By: MUSAKWA J

View Appeal 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

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA Ruled By: BHUNU J

HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO Ruled By: PATEL J

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA Ruled By: MAKARAU JP

HH98-10 : FIONA EVELYN TAISEKWA JIRIRA vs ZIMCOR TRUSTEES LIMITED and REGISTRAR OF DEEDS Ruled By: MAKARAU JP

HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED Ruled By: BHUNU J

HH172-10 : COTTON GINNERS ASSOCIATION vs SINO ZIMBABWE COTTON HOLDINGS (PVT) LTD and AGRICULTURAL MARKETING AUTHORITY Ruled By: CHIWESHE JP

HH176-10 : JOYCE CHAGADURA vs SHELLY ANTONIO and REGIS MUVEREGI and DIRECTOR OF HOUSING CITY OF HARARE and SHERIFF OF THE HIGH COURT Ruled By: GUVAVA J

HH179-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD and ROCKMOUNT TRADING (PVT) LTD Ruled By: MTSHIYA J

HH132-10 : CABINET MACHINGAMBI and PATRICIA CHIMBALAMI and SIMBAI MANGENA and OTHERS vs DOUGLAS NYAUDE and D. MNETSI ENTERPRISES and REGISTRAR OF DEEDS Ruled By: BHUNU J

HH136-10 : LOCAL AUTHORITIES PENSION FUND (PVT LTD vs MOONLIGHT PROVIDENT ASSOCIATES (PVT) LTD Ruled By: HUNGWE J

HB10-11 : JENNIFER NDLOVU [nee NYONI] vs CHRISTINA NDLOVU [nee SITHOLE] and ASSISTANT MASTER OF THE HIGH COURT and ADDITIONAL ASSISTANT MASTER, TREDGOLD Ruled By: MATHONSI J

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT Ruled By: GUVAVA J

HH212-10 : MAXWELL MUTOKO vs CHARITY MUKURO (In her capacity of executor in the estate late Jayison Mukuro) and THE MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HH213-10 : CEPRAT FARMING (PVT) LTD vs BRIGHTLAND FARMING (PVT) LTD Ruled By: MTSHIYA J

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Zimbabwe

HH52-09 : NEIL BRUCE vs ECONET WIRELESS (PVT) LTD and CITY OF HARARE
Ruled By: OMERJEE J

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

HH72-12 : STUPENDIS ENTERPRISES (PVT) LTD vs ADMIRE KASI and SARAH KASI and THE REGISTRAR OF DEEDS and COMMISSIONER-GENERAL, ZIMBABWE REVENUE AUTHORITY
Ruled By: HUNGWE J

HH175-12 : VICTORIA FOODS (PVT) LTD vs TRINPAC INVESTMENTS (PVT) LTD and MEDWORTHS PROPERTIES (PVT) LTD
Ruled By: CHIWESHE JP

HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

SC11-09 : CAPS UNITED FOOTBALL CLUB (PRIVATE) LIMITED vs CAPS HOLDINGS LIMITED AND THREE OTHERS
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

HH35-12 : DEBRAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: GUVAVA J

HH41-12 : TAMABOGA NYAMHUNGA AND THIRTY EIGHT OTHERS vs ENIAS MUMVURI AND TWO OTHERS
Ruled By: CHIWESHE JP

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

HH173-12 : PRIKISI MUTIMHODYO vs SANANGURAI KUBIKU and GUTU DISTRICT ADMINISTRATION AND TWO OTHERS
Ruled By: CHIWESHE JP

HH181-12 : JENNIFER NYAMAKURA vs AGRIPPA MUZENGI
Ruled By: CHITAKUNYE J and MAWADZE J

HH185-12 : CHITUNGWIZA MUNICIPALITY vs DELATFIN INVESTMENTS (PRIVATE) LIMITED
Ruled By: CHIWESHE JP

HH196-12 : SWINDALE PROPERTIES AND BRIGHT TECH ENTERPRISES (PVT) LTD AND ANOTHER vs VENENCIA MADAKE
Ruled By: CHIWESHE JP

HB01-12 : NKULULEKO MABHENA vs P.G. INDUSTRIES (ZIM) LIMITED AND P.G. ZIMBOARD PRODUCTS (PVT) LTD AND ANOTHER
Ruled By: KAMOCHA J

HB01-12 : NKULULEKO MABHENA vs P.G. INDUSTRIES (ZIM) LIMITED AND P.G. ZIMBOARD PRODUCTS (PVT) LTD AND ANOTHER
Ruled By: KAMOCHA J

HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED
Ruled By: PATEL J

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

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

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

HH133-09 : EZERA MUSHANDIKWA vs NATIONAL RAILWAYS OF ZIMBABWE AND THE DISTRICT CIVIL ENGINEER N.O. FOR NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MTSHIYA J

View Appeal
HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

HH158-09 : WILTON RENSBURG vs MARKO MAVHURUME N.O. and THE REGISTRAR OF DEEDS N.O and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO)
Ruled By: CHEDA J

HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS
Ruled By: NDOU J

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

View Appeal
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

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA
Ruled By: BHUNU J

HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO
Ruled By: PATEL J

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

HH98-10 : FIONA EVELYN TAISEKWA JIRIRA vs ZIMCOR TRUSTEES LIMITED and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED
Ruled By: BHUNU J

HH172-10 : COTTON GINNERS ASSOCIATION vs SINO ZIMBABWE COTTON HOLDINGS (PVT) LTD and AGRICULTURAL MARKETING AUTHORITY
Ruled By: CHIWESHE JP

HH176-10 : JOYCE CHAGADURA vs SHELLY ANTONIO and REGIS MUVEREGI and DIRECTOR OF HOUSING CITY OF HARARE and SHERIFF OF THE HIGH COURT
Ruled By: GUVAVA J

HH179-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD and ROCKMOUNT TRADING (PVT) LTD
Ruled By: MTSHIYA J

HH132-10 : CABINET MACHINGAMBI and PATRICIA CHIMBALAMI and SIMBAI MANGENA and OTHERS vs DOUGLAS NYAUDE and D. MNETSI ENTERPRISES and REGISTRAR OF DEEDS
Ruled By: BHUNU J

HH136-10 : LOCAL AUTHORITIES PENSION FUND (PVT LTD vs MOONLIGHT PROVIDENT ASSOCIATES (PVT) LTD
Ruled By: HUNGWE J

HB10-11 : JENNIFER NDLOVU [nee NYONI] vs CHRISTINA NDLOVU [nee SITHOLE] and ASSISTANT MASTER OF THE HIGH COURT and ADDITIONAL ASSISTANT MASTER, TREDGOLD
Ruled By: MATHONSI J

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

HH212-10 : MAXWELL MUTOKO vs CHARITY MUKURO (In her capacity of executor in the estate late Jayison Mukuro) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH213-10 : CEPRAT FARMING (PVT) LTD vs BRIGHTLAND FARMING (PVT) LTD
Ruled By: MTSHIYA J