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

HH220-10 : BACHI FARM (PVT) LTD and COBBLESTONE INVESTMENTS and TRIBACK (PRIVATE) LIMITED vs OLIVER DZVENE and HOWARD MATARE and OTHERS
Ruled By: CHIWESHE JP

The founding affidavit attested to by Kelvin Erik Windel, the first applicant's Director, representing the applicants is to the following effect:The three applicant companies have been in a business arrangement wherein the first applicant and the second applicant are contracted to grow tobacco for the third applicant on the remainder ...

The founding affidavit attested to by Kelvin Erik Windel, the first applicant's Director, representing the applicants is to the following effect:

The three applicant companies have been in a business arrangement wherein the first applicant and the second applicant are contracted to grow tobacco for the third applicant on the remainder of Weltevrede Estate in Banket (commonly referred to as Bhachi Farm). The farm belonged to Parland (Pvt) Ltd, a sister company of the first applicant. Parland (Pvt) Ltd acquired this piece of land from Tumbleweed Investments sometime in 1999. Of the original 1509,6450 hectares, Tumbleweed retained 484,1697 hectares, thereby subdividing the original farm into two separate pieces of land. To date the business relationship between the three applicant companies subsists.

In September 2004 the eighth respondent issued a section 5 order followed by a section 8 acquisition order in respect of Welterede Estate in terms of the Land Acquisition Act [Chapter 20;10]. In June 2005, Parland Investments (Pvt) Ltd challenged the legality of the eighth respondent's actions in this Honourable Court under case number HC2617/05 and obtained an order setting aside the acquisition order and attendant processes.

At all material times prior to the period 26 August 2010 right up to 21 September 2010 the applicants have been having peaceful, quiet, unhindered and undisturbed possession and control of the property listed in the draft provisional order.

The first applicant also states that the applicants have not been prosecuted and convicted for any alleged contravention of the Gazetted Land (Consequential Provisions) Act [Chapter28:28] nor has the property listed in the draft order been compulsorily acquired in terms of the Acquisition of Farm Equipment and Materials Act [Chapter 18:23].

The first applicant alleges various acts of spoliation by the first to seventh respondents between 26 August 2010 and 21 September 2010. It states that the first to seventh respondents have, through extra judicial means, and in the absence of the applicants' Directors, agents or employees' consent, forcibly taken over possession, physical control and appropriated the property, thereby, despoiling the applicants of their property.

Counsel for the applicants argues that what the applicants have applied for is a spoliation order in which the question of rights or lawfulness does not arise. The issue should not be who has better rights but who had physical possession of the property. He argued that the applicants had all along had peaceful and undisturbed possession prior to the acts of the first to seventh respondents. The respondents had despoiled the applicants through extra judicial means. The legislature has enacted the due process for the prosecution, punishment and eviction of anyone occupying State land illegally. Further, with regards acquisition of farm equipment and materials, the provisions of the Acquisition of Farm Equipment and Materials Act [Chapter 18:28] clearly establish the procedures to be followed. In casu, it was argued that no acquisition of equipment or materials by the State had taken place. The applicants argued, further, that the fact that the first to seventh respondents had permits or offer letters does not empower them to resort to self-help or extra judicial means of evicting the applicants.

The original farm in question is divided into two by the Harare-Chinhoyi highway which passes through it. The portion on the right hand side of the road as you face Chinhoyi has been allocated to the respondents. No allocation has been made to the applicants on either side of the road. According to the first to seventh respondents (and this has not been disputed) all along the applicants have been illegally leasing the portion on the left hand side of the road from one of the beneficiaries of the land reform programme. The “lessor” has since died and his children have no intention of perpetuating the illegal lease. They have removed the applicants from that portion of the land. The first to seventh respondents argue that the present application is a ploy by the applicants to seize land on the right hand side of the road for their own use. They state that they have been in peaceful co-existence with the applicants since 2002. The applicants have been supporting them with farming inputs and tillage. They had access to the tobacco barns for storage of their tobacco and to all the infrastructure on the farm. They argue that the allegations that they have taken the applicants' employees hostage, locked up the sheds and storerooms and removed the property of the applicant are a fabrication. An entry made in the records of one of the guards manning the entrance to the farm has been brought to the attention of the court. It tends to show that the applicants' employees have had the freedom to move in and out of the farm ferrying whatever property.

The accuracy of this entry has not been challenged.

There are disputes of facts which cannot be resolved without hearing evidence viva voce. By and large the balance of convenience in several respects favours the respondents. An order of the nature sought by the applicants would fly in the face of logic and common sense.

The major difficulty facing the applicants in this matter is this that there are serious disputes of fact which cannot be resolved on the papers.

On that basis alone the application cannot succeed.

HH223-10 : LOVEMORE GOREDEMA (In his capacity as the Executor of the Estate Late Robert Tendayi Magwenzi) vs PATRICIA MAGWENZI and CHARITY MAGWENZI and LUCKSON MAGWENZI and MASTER OF HIGH COURT
Ruled By: GUVAVA J

The respondents submit, in their heads of arguments, that the application contains material disputes of facts which cannot be resolved on the papers without hearing oral evidence. They thus pray that the matter be dismissed with costs.

HH236-10 : NATIONAL SOCIAL SECURITY AUTHORITY vs ALEC RYALS AND SKOTRIL (PRIVATE) LIMITED and ALEC KAGURU
Ruled By: MUTEMA J

ALLEGED MATERIAL DISPUTES OF FACT NOT MAKING THE MATTER CAPABLE OF RESOLUTION ON THE PAPERS The alleged disputes of fact raised in this connection are whether Darlington Mujati, who allegedly authorised the repairs, had or had not such authority. This dispute of fact, so the argument went, can only be resolved by hearing evidence in ...

HH278-10 : RADIATOR AND TINNING (PVT) LTD vs RADIATOR AND TINNING (PVT) LTD WORKERS COMMITTEE and WALTER DUBE and LITOS CHIKWANDA and OTHERS
Ruled By: MTSHIYA J

Counsel for the respondents went on to submit that the fact that the applicant had not produced audited accounts, and the respondents disputed what was presented, meant that there were triable issues in the matter (i.e the disputes of fact could not therefore be resolved by way of application). He therefore urged the court to ...

HB12-10 : BETTY GASELA vs LEONARD MALINGA and BULAWAYO CITY COUNCIL and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

Finally, Leonard Malinga alleged that there were disputes of fact which could not be resolved on the papers even if the court adopted a robust approach. I disagree. I entertain no doubt whatsoever that the matter is easily resolved on the papers. I would, in the result, grant the application in terms of the draft on ...

HH217-10 : HEIKO PETER HORSTMAN vs GARFIELD INVESTMENTS (PRIVATE LIMITED) and GODFREY MAKONI
Ruled By: GOWORA J

The first issue raised by the respondents is that the papers are so fraught with material disputes of facts to such an extent that the application cannot be determined on the papers and the application should be dismissed with costs. In my view, whether or not there are disputes of fact is an issue ...

HB39-10 : UNITED ASSOCIATES vs HIPPO VALLEY ESTATES LIMITED
Ruled By: KAMOCHA J

While the applicant averred that it entered into an Agreement of Sale of 4,000 tonnes of molasses on 23 January 2009 the respondent contended that no valid agreement was entered between the parties as one Ndowora, its Financial Planning Manager, had no authority to sell molasses. The deponent to the opposing affidavit, Mr Peter Mbozvi, ...

HB62-10 : CORNIEL DUBE vs GEORGE GRAHAM and OFFICER-IN-CHARGE, MBEMBESI POLICE STATION and DEPUTY SHERIFF FOR BULAWAYO
Ruled By: NDOU J

In light of the above, I agree with the applicant that there is no material dispute of facts. Issues raised by the first respondent and supported by a Mr. Gibson Siziba are not material for the resolution of the dispute before me….,. But the bottom line is that the issues here are of a legal ...

HH16-11 : WILLARD MAZHAWIDZA and DORNICA MAZHAWIDZA vs ISAYA MASHAYAKARARA
Ruled By: CHATUKUTA J

It appears that the Agreement of Sale was brokered by High Rise Estate Agents. I do not believe that the dispute as to whether or not the applicants had authorized the estate agents to sell the property could have been resolved on the papers. It was also necessary, in my view, to hear evidence ...

HH48-11 : LEON GEOFFRY HEATHCOTE vs MP MATONGO and MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: BHUNU J

While the applicant is entitled to protection during the unexpired portion of his stay in the principal dwelling house, the issue of whether or not his rights in this respect have been violated is mired in serious factual controversy such that the dispute is incapable of resolution on the papers. The applicant can, however, ...

HH47-13 : ELLEN CHARI (nee CHAKAUNYANA) (In her capacity as Executrix Dative in estate of the Late YOBE CHARI) vs TAKUDZWA MUNOPFUKUTWA and THE MASTER OF THE HIGH COURT
Ruled By: MAWADZE J

The main, if not the only point taken in argument by the first respondent is that there are serious disputes of facts in this matter which cannot be resolved on the papers without calling viva voce evidence. The first respondent further submits that the applicant should have known, or ought to have known, ...

The first respondent further submits that the applicant should have known, or ought to have known, of this fact but nonetheless chose to proceed by way of a court application. Consequently, the first respondent prays that the application be dismissed, or, as at the very most, be referred to trial.

The celebrated authors HERBSTEIN & VAN WINSEN in the Civil Practice of the Supreme Court of South Africa 4^th edition…, had this to say on the undesirability of a party proceeding by way of motion proceedings where there are serious disputes of facts in the matter;-

“It is clearly undesirable in cases in which the facts relied upon are disputed to endeavour to settle the dispute of facts on Affidavit, for the ascertainment of the true facts is effected by a trial Judge on considerations not only of probability, which ought not to arise in motion proceedings but also on credibility of witnesses giving viva voce evidence. In that event, it is more satisfactory that evidence should be led and the court should have the opportunity of seeing and hearing the witnesses before coming to a conclusion.”

See also Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H)…,; Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H)….,.; and Magurenje v Maphosa & Anor 2005 (2) ZLR 44…,.

The question to be answered in this matter is therefore whether there are serious disputes of facts which cannot be resolved on the papers filed without calling viva voce evidence.

I am not persuaded by the respondent's argument in this regard. I am rather inclined, in this case, to adopt the robust approach enunciated by GUBBAY JA…, in Zimbabwe Bonded Fibreglass1981 (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…, wherein it is stated -

“It is, I think, well established that the motion proceedings a court should endeavour to resolve the dispute raised in affidavits without hearing of evidence. It must take a robust and common sense approach and not an overfastidious 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.”

Let me now deal in specific terms with the so-called disputes of facts raised by the first respondent.

a) Whether the applicant exists

The assertion that the applicant does not exist and is a fictional character is puzzling. The first respondent does not even bother to explain the objective basis of the assertion and how a party who has instituted proceedings, attested to both the founding and answering affidavits, and attached relevant documents with her marriage certificate can be said to be a fictional character. Even counsel for the applicant was baffled by this allegation. He clearly states that the applicant exists and had instructed him in this matter. I am equally baffled by this allegation. Who then proceeded to register the late Yobe Chari's estate at the second respondent's offices and was issued with the Letters of Administration, Annexure 'C', if the applicant does not exist? There is no objective basis at all the support this allegation.

The inescapable conclusion is that there is an imaginary dispute of fact.

b) Whether the marriage certificate No. 2144/2003 dated 17 September 2003 (between the applicant and the late Yobe Chari) is fake. (Annexure B)

The first respondent alleges that the marriage certificate, Annexure 'B', is not genuine but was originated by the applicant - the same person the respondent alleges does not exist. Again, the first respondent does not provide any iota of evidence to support this but merely makes a bold assertion. The first respondent alleges that the Registrar of Marriages had confirmed this fact but attaches no such evidence. In a bid to bolster this rather strange allegation the first respondent then made a very confusing allegation that the marriage certificate produced by the applicant, Annexure 'B', belongs to one ELLEN CHINGWARU. Again, no such marriage certificate is attached by the first respondent. Instead, the first respondent conveniently refers to marriage number 4228/2003 when it is clear from Annexure 'B' that the marriage number is 2149/2003. The relevance of Ellen Chingwaru is not explained. Is the first respondent alleging that the late Yobe Chari was also married to the so-called ELLEN CHINGWARU? Where is the proof? So is the first respondent alleging that his so-called aunt Leah Munopfukutwa was also the wife of the late Yobe Chari? All these issues are unexplained by the first respondent yet he alleges that this amounts to serious disputes of fact.

The real dispute between the parties, which the first respondent conveniently avoids, is whether the first respondent legally acquired the rights, title and interest in the immovable property No. 6106 New Tafara, Harare. Put differently, the question is whether there is a serious dispute of fact as regards the first respondent's alleged illegal conduct in obtaining the Letters of Administration, Annexure 'D' and the Memorandum of Assignment, Annexure 'E'.

The first respondent did not bother to explain, in his papers, how he obtained the Letters of Administration, Annexure 'D', which the applicant alleges were obtained fraudulently. It cannot be disputed that the first respondent used Annexure 'D', dated 16 September 2005, appointing him the executor dative of the estate of the late Yobe Chari to obtain Annexure 'E', dated 29 August 2006, which authorized him to obtain title, rights and interest in the property in dispute. The first respondent is not keen to explain in his papers whether he followed due process and whether everything is above board. This was necessary in view of the applicant's allegation.

From the papers filed of record, the first respondent dismally failed to rebut the allegation that he acted improperly in using Annexures 'D' and 'E' and acquiring title, rights, and interest in the property in dispute. In his opposing affidavit, the first respondent alleges that he derived such authority from the order granted by DEVITTE J on 23 August 2000 in as a matter between Leah Munopfukutwa as the plaintiff and the late Yobe Chari as the defendant which reads as follows;-

“Whereupon after reading documents filed of record;-

It is ordered;-

a) That the defendant be and is hereby ordered to pay to the plaintiff an amount of $70,000= being a one half share of Stand 6106 New Tafara, Mabvuku, Harare.

b) That the defendant be and is hereby ordered to pay interest on the said amount at the rate of 25% per annum calculated from the date of judgment to the date of payment.

c) That the defendant pays costs of suit.”

The first respondent was not part of the proceedings in the matter between Leah Munopfukutwa and the late Yobe Chari. The order granted by DEVITTE J does not confer upon the first respondent any rights in respect of No.6106 New Tafara, Harare. Even counsel for the first respondent abandoned this clearly misleading averment and conceded that what the first respondent alleges is incorrect.

Where then does this leave the first respondent's case?

The question now is whether the first respondent properly registered the estate of the late Yobe Chari and was appointed as the executor dative.

HH71-11 : NIGEL DAMIAN MORRIS vs CHIQUITA MORRIS and MASTER OF HIGH COURT
Ruled By: MAWADZE J

Strangely, counsel for the applicant was of the view that there is no dispute of fact in this matter and that it can be resolved on the basis of a court application. The controversy generated by the forensic report seems to elude him....,. I have already alluded to the fact that the forensic report in ...

HH111-11 : TOBACCO SALES FLOOR LIMITED vs SWIFT DEBT COLLECTORS (PVT) LTD t/a RUBY AUCTIONS
Ruled By: GOWORA J

Lastly, the respondent contends that there exist disputes of fact such that this court cannot, on the papers, decide whether or not the lease was renewed with Mr Mangena and that the court would need to hear from Mr Mangena on the issue relating to the alleged renewal. If the lease was not renewed ...

In argument, both written and oral, it was the contention of counsel for the respondent that there are numerous disputes of facts to such an extent that this court cannot decide the matter on the papers before it. The respondent suggests that the matter should be referred to trial so that it can call Mr. Mangena, the applicant's former Managing Director to give oral evidence as to the dealings between the applicant and the respondent, and specifically for him to come to court and explain why he concluded a verbal lease agreement with the respondent, its terms, and why the rental was not increased. The respondent contends, further, that the applicant cannot confirm or deny the existence of the lease, and that the only person who can do this is Mr. Mangena who must therefore speak for himself. The respondent also wishes for an opportunity to cross examine him on the issue.

The applicant strongly denies the existence of any disputes of facts as alleged by the respondent. The applicant contends that where there is an allegation that disputes of fact exist the law is that court, must, if possible, take a robust view and common sense approach and not take an over fastidious view of conflicts and must seek to resolve the dispute despite apparent conflict. See Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 and Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S). In Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S) GUBBAY JA…, stated…, -

“It is, I think, well established, in motion proceedings, that 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 a merely an illusory dispute of fact.”

However, before taking a robust view, a court must have concluded, or found, that, in fact, there are real or genuine disputes of fact that exist. See Da Mata v Otto 1972 (3) SA 858 and Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986 (2) ZLR 246 (S).

Although the respondent contends that the applicant was, before embarking on these proceedings, aware that there was a dispute on an alleged renewal of the lease agreement, I am unable, on the papers before me, to find that that is so.

The respondent received two letters, written almost five months apart, in which the intention of the applicant to terminate the lease at the expiry of the same was made clear. The respondent did not acknowledge either of them nor did it put the record straight with the applicant, if indeed a verbal agreement had been concluded with Mr. Mangena, and express its indignation and make it known that far from the lease expiring at the end of May 2010, the position was, in fact, that a new lease agreement had been concluded with Mr. Mangena. The respondent did not do this. It claims, however, that it relied on the existence of such verbal lease agreement and that as a result it did not move out of the premises. The opposing affidavit is devoid of detail on the alleged renewal of the lease agreement but seems to have focused on the wrangles that the parties had on rent. Despite receiving two notices, one in December 2009 and another in April 2010, clearly spelling out the applicant's desire not to renew the lease upon its termination, the respondent did not choose to respond. Yet, it responded to letters that were raising issues to do with arrear rentals. Prior to the two notices referred to above, the respondent had also received notices from the applicant seeking to terminate the lease agreement. The respondent appears to have responded to some, but ignored others. The notices seem, however, to bear out the contention by the respondent that during the currency of the lease the applicant had sent various notices to the respondent, purportedly seeking the termination, prematurely, of the lease. Certainly the relationship appears to have been far from amicable, but, in my view, the respondent had to show, on the papers, that after the expiry of the written lease agreement it was renewed verbally as suggested in the opposing affidavit. The respondent's failure to respond to the initial letter, dated 14^th December 2009, and the reminder, in terms of which it was informed of the termination of the lease, is remarkable if viewed against the backdrop of the claim by the respondent that the lease had been renewed verbally with the Managing Director, Mr. Mangena. One would have expected an immediate response from the respondent categorically stating that the lease had been renewed and a firm refusal to move out based on the alleged renewal. One would have, as well, expected the respondent to have responded to the notices by advising the applicant that it had concluded a verbal lease with the Managing Director and, consequently, was disregarding the notices, especially in view of the fact that the Managing Director who had brokered the lease had left the employ of the applicant. This is especially surprising given the respondent's penchant to respond at every turn to a perceived wrong in the past. It is therefore inconceivable that it would have ignored two notices demanding it vacate the premises on the basis of an expired lease agreement. Instead, the respondent did not react. All it did was to pay rent on 1 June 2010.

As part of its papers, the respondent annexed papers filed in the magistrates court by both parties. The applicant had filed an application for the eviction of the respondent which application it subsequently withdrew. The respondent had, in turn, filed an application for a mandament van spolie after the security guards employed by the applicant had denied access to the respondent's clients into the premises. In an affidavit deposed to by Lyton Shumba the following statement is made in regard to an alleged verbal lease agreement;

“On 1 of June 2010, the applicant paid rentals for the month of June 2010. A copy of the said receipt is annexed hereto as Annexure B. In terms of a verbal lease agreement between the parties, once they accept rent the lease would automatically be renewed for a period of three years.”

This statement, in my view, is very different from the one in the opposing affidavit from the same deponent to the effect that they had renewed the lease agreement with the former Managing Director. From the statement quoted above, it is clear that the respondent says that the payment of the rent would constitute renewal of the lease agreement. This is a far cry from the averment that the lease had been renewed with Mr. Mangena. It is trite that until rent or some mode of fixing the rent is agreed upon there is no contract of letting or hiring premises.

The lack of detail on the alleged verbal lease points to a lack of existence of any agreement between the parties, if the details had been agreed, the respondent would have been happy to provide them to the court. I find no evidence that a verbal lease agreement was concluded between the applicant and the respondent, and, in my view, the respondent, in the absence of renewal, had become a statutory tenant.

HH114-13 : JASSAT, MAHOMED AND ESSOF (PVT) LTD vs OAKVIEW INVESTMENTS (PVT) LTD
Ruled By: ZHOU J

On the merits, the court must decide whether the Deed of Settlement executed by the parties on 30 July 2010 was abandoned by the parties and substituted by other agreements. That fact is in dispute. Not every dispute of facts is incapable of resolution on the papers. In Soffiantini v Mould 1956 (4) SA 150 ...

On the merits, the court must decide whether the Deed of Settlement executed by the parties on 30 July 2010 was abandoned by the parties and substituted by other agreements.

That fact is in dispute.

Not every dispute of facts is incapable of resolution on the papers. In Soffiantini v Mould 1956 (4) SA 150 (ED)…, PRICE JP said -

“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 simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on 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 affidavits.”

See also Executive Hotel (Pvt) Ltd v Bennet NO 2007 (1) ZLR 343 (S)…,.

The respondent has not placed before the court evidence of the agreements which were concluded by the parties which replaced the Deed of Settlement. Other than a bald statement about the existence of such agreements, which is made in the opposing affidavit, the documents attached to the affidavit do not prove the facts alleged. The respondent does not state when those agreements were concluded - if at all they ever existed. The fire equipment inspection reports prepared on behalf of the Chief Fire Office for Harare do not in any way relate to the existence of the alleged agreements. The mere fact that the respondent was paying a monthly rent which is different from what the Rent Board would have considered to be reasonable does not help. The letter from the Rent Board is not an affidavit. It is worded in general terms without specific reference to the premises occupied by the respondent. Given the background to the Deed of Settlement, it is improbable that there would be nothing in writing to confirm its abandonment. The first time that the respondent makes reference to the alleged agreements was in its letter of 19 July 2012 - which was written almost two years after the Deed of Settlement was executed. Further, those oral agreements were only raised after the respondent was reminded of its undertaking to vacate the premises by the end of July 2012. The reference by the respondent to “several agreements” which superseded the Deed of Settlement is not supported by the contents of the letter of 19 July. The respondent's assertion that the applicant is evicting it in order to lease the premises to some Chinese business people is not supported by evidence. In any event, the genuineness of the applicant's need to have the premises for the operation of its own business was not challenged by the respondent, but was accepted, at the time that the parties executed the Deed of Settlement….,.

In all the circumstances, this is a matter in which the court can readily determine the dispute on the papers without doing an injustice to either of the parties involved. See Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S); compare Ex-Combatants Security Co v Midlands State University 2006 (1) ZLR 531 (H)…,. In my view, no viva voce evidence can tilt the probabilities in favour of the respondent. The respondent has not pointed to such evidence.

In the result, it is ordered as follows:

1. Respondent and all persons claiming occupation through it be and are hereby ejected from the premises situate at No.61 Leopold Takawira Street, Harare.

2. In the event that the respondent and all persons claiming occupation through it fail to vacate the premises referred to above after being served with this order, the Sheriff or his Deputy shall take all steps necessary to eject them from the premises and give vacant possession thereof to the applicant.

3. …,.

4. Respondent shall pay the costs of this application.

HH332-13 : NIGHERT SAVANIA and NORWICH TRADING (PVT) LIMITED vs NATHAN MNABA
Ruled By: MATHONSI J

Counsel for the respondent took a point in limine that there are serious disputes of fact as cannot be resolved on affidavits and as such the matter should not have been brought by court application but by summons action. In his view, the insistence by the first applicant on withholding the purchase price as a penalty ...

Counsel for the respondent took a point in limine that there are serious disputes of fact as cannot be resolved on affidavits and as such the matter should not have been brought by court application but by summons action.

In his view, the insistence by the first applicant on withholding the purchase price as a penalty and damages for breach of the Agreement cannot be resolved on the papers placed before the court given the substantial amount that was paid which then begs the questions: What is the quantum of damages suffered by the first applicant as a result of the breach? Is the amount withheld proportionate to the prejudice suffered? If it is not, the extent to which the penalty should be reduced.

Counsel for the applicants retorted that the respondent went into the Agreement with his eyes wide open, he breached the Agreement, was given notice to remedy the breach in compliance with section 8 of the Contractual Penalties Act [Chapter 8:04] and must now face the consequences of the breach. Although he was unable to quantify the damages suffered by the first applicant, he took the view that Clause 9.2.2 of the Agreement allows the first applicant to take the forfeit to the extent of all that was paid towards the purchase price. To him the respondent bears the onus to prove that the penalty stipulation is out of proportion, and, as he has not done so, the first applicant is entitled to the relief that he seeks.

While the Agreement of the parties gives the first respondent an election, upon a failure by the respondent to make any payment before due date, to either enforce the Agreement or cancel it and forfeit all sums paid towards the purchase price as rouwkoop in consideration of value of damages sustained, the court cannot blindly enforce such stipulation without regard to justice and fairness. Here we have a situation where the respondent paid the greater part of the purchase price leaving a smaller part. The first applicant claims the whole of it without even beginning to justify why he is entitled to it. The first applicant does not even ask the court to order forfeiture. To him it is enough for him to retain the money and seek only confirmation of the cancellation and an eviction of the respondent which has not even been pleaded.

Section 4 of the Contractual Penalties Act [Chapter 8:04] enjoins the court to act on a penalty stipulation if it appears to it that it is out of proportion. It provides:

“(1) Subject to this Act, a penalty stipulation shall be enforceable in any competent court.

(2) If it appears to a court that the penalty is out of proportion to any prejudice suffered by the creditor as a result of the act, omission or withdrawal giving rise to liability under a penalty stipulation, the court may -

(a) Reduce the penalty to such extent as the court considers equitable under the circumstances; and

(b) Grant such other relief as the court considers will be fair and just to the parties.

(3) Without derogation from its powers in terms of subs(2) a court may –

(a) Order the creditor to refund to the debtor the whole or any part of any instalment, deposit or other moneys that the debtor has paid; or

(b) Order the creditor to reimburse the debtor for the whole or part of any expenditure incurred by the debtor in connection with the contract concerned.”

I have stated that the first applicant did not attempt to set out any prejudice that he may have suffered as a result of the breach. Neither did he attempt to justify why he is entitled to retain the $250,000= paid towards the purchase price while also reclaiming the property. It is not enough for counsel for the applicants to simply say prejudice was suffered because the first applicant was not trading. In my view, the penalty appears out of proportion especially as the respondent was still showing a willingness to pay but had the money returned by a litigant bent of taking advantage of a slip up.

I am not equipped with any evidence upon which I may invoke the powers reposed in me by section 4(2) of the Contractual Penalties Act [Chapter 8:04]. The first applicant elected not to submit any such evidence. Therefore, there exist disputes of fact which I cannot resolve by application procedure. As remarked by MAKARAU J…, in Ex Combatants Security Co v Midlands State University 2006 (1) ZLR 531 (H)….,:

“The resolution of the dispute without doing an injustice to the other party appears to me to be one of the prime considerations in allowing or disallowing the use of application procedures….,.

Further, a claim for damages arising from an alleged breach of contract, unless the damages are pre-set and agreed to between the parties, should not be brought on application procedure. A claim for damages, by its very nature, always puts in dispute the quantum of damages that are due to the applicant - even where the defendant has not defended the matter. While a claimant may quantify his damages, the assessment of such damages is done by the court on evidence adduced and on principles of law applicable for that claim and on a comparative basis with decided cases.”

I have found that there are disputes of facts which I cannot resolve.

Having done that I have to decide whether to dismiss the application by virtue of the use of wrong procedure or to stand down the matter to trial. Generally, where it should have been apparent to the applicant before undertaking application procedure, that disputes of fact exist as would not be resolvable on the affidavits, the court is at liberty to dismiss the application; Williams v Tunstall 1949 (3) SA 835(T); Mavurudza v City of Harare HH139-13.

Had it not been for the fact that the Agreement of the parties ostensibly gives the first applicant sweeping powers to cancel the Agreement and forfeit the purchase price, which may have encouraged the applicants to hazard an approach to this court by court application, seeking to enforce that provision, I would have dismissed the application out of hand. I am, however, sympathetic to the applicants in light of the outrageous powers given to the first applicant by the Agreement. As it is I have had to rely on the provisions of section 4(2) of the Contractual Penalties Act [Chapter 8:04] to achieve justice and not the mere interpretation of the Agreement of the parties.

This court has the power and discretion to regulate its process. For that reason, and in the interests of the concerned parties, I will stand the matter down for trial. I do not consider it necessary therefore to determine the question of costs at this stage as I believe the trial court will be best suited to do so.

Accordingly, it is ordered that:-

1. This matter is hereby referred to trial with the documents filed of record all to stand as pleadings.

2. The parties are granted leave to file whatever additional documents they consider necessary for the purpose of completion of pleadings including the making of discovery in terms of the Rules of Court.

3. The costs of this application shall be costs in the cause.

HH146-11 : LEO ELECTRICAL (PRIVATE) LIMITED vs ROSEMARY NYAHUYE N.O. [in her capacity as Executrix dative of the Estate of the late Farai Benjamin Njiwah]
Ruled By: CHITAKUNYE J

The difficulties the parties found themselves in could have been avoided had they sought the reasons for judgment in HC10165/04. Those reasons would have clarified whether the main application was dismissed on the merits or not and whether the counter application was dismissed for not serving the notice of termination, as against a notice ...

HB92-11 : MINISTER OF DEFENCE vs RANGARIRAI GUNDA
Ruled By: KAMOCHA J

The next point raised in limine was that the applicant had allegedly adopted a wrong procedure by proceeding by way of court application when he was aware that there were serious disputes of fact which could not be resolved on the papers. The respondent contended that her late husband was given an offer to purchase the property ...

The respondent contended that her late husband was given an offer to purchase the property by the army but that contention was vehemently disputed by the army. She further asserted that the applicant was aware that in the Magistrates Court witnesses, including herself and those from the army, were called to testify and disputes became clear. She concluded that the applicant was well aware of the existence of the disputes of fact and should have proceeded by way of action so that viva voce evidence could be adduced to resolve the dispute.

On the other hand, the applicant's contention was that the respondent merely claimed that her late husband was promised the house in question without laying any foundation for her claim. She produced no evidence on the papers showing that indeed such promise was made to her late husband.

There is merit in that submission.

The respondent does not state who exactly in the army made that promise and when and where it was made. She has stated that witnesses testified in the Magistrate's Court but chose not to take the court in her confidence by stating whether or not those witnesses confirmed her story that her late husband had been promised the sale of the house. Her story remains a bald and unsubstantiated assertion. There are no facts to support her story. It is not enough to merely allege disputes of facts without demonstrating to the court the disputed facts by, for instance, producing a letter offering the property for sale to the late husband of the respondent or by averments in her affidavit to the effect that at a meeting between her late husband and a named officer or officers of the army held on such and such date, at such and such place her late husband was offered the sale of the house.

Her claim that there are serious disputes of fact is without merit and must fail.

HH184-14 : FATIMA MAGEDI and KENNEDY SAMURIWO vs RURAMAI SAMURIWO and YVONNE SAMURIWO and TINASHE SAMURIWO and A.CHITAUNHIKE (as executor testamentary) NO and THE MASTER OF THE HIGH COURT NO
Ruled By: MAWADZE J

The second point in limine taken is that there are serious material disputes of facts in this matter which cannot be resolved on the basis of the papers filed. It was submitted that both applicants chose the wrong procedure by approaching the court by way of a court application in view of serious disputes of facts ...

HB154-11 : NATIONAL BLANKETS LIMITED vs DAVID WHITEHEAD TEXTILES LIMITED
Ruled By: KAMOCHA J

David Whitehead, “respondent”, raised a point in limine wherein it alleged that there were glaring irreconcilable disputes of facts in the matter. The defendant contended that the applicant had submitted at least four argumentative affidavits from no less than three deponents in an endeavour to support its application. Surely, there was need for the veracity of ...

David Whitehead, “respondent”, raised a point in limine wherein it alleged that there were glaring irreconcilable disputes of facts in the matter.

The defendant contended that the applicant had submitted at least four argumentative affidavits from no less than three deponents in an endeavour to support its application. Surely, there was need for the veracity of such conflicting affidavits to be tested by the court. Moreso, when the applicant was unable to produce documentary evidence to clearly demonstrate the existence of the transaction. The case was loudly calling for viva voce evidence from the authors of the conflicting statements to explain the glaring discrepancies under cross examination. The court was denied the opportunity to have the conflicting statements relating to the transaction clarified through viva voce evidence from the deponents of the statements. Further, the deponent of the applicant's founding affidavit averred that the parties held meetings between themselves whereat the respondent's representatives denied knowledge of the existence of the said transaction. In particular, George Maulidi professed ignorance of the said transaction. The fact that the applicant was unable to produce a single document where the alleged transaction was recorded exacerbated the confusion in the matter. In light of the foregoing, the respondent concluded that the applicant knew, or ought to have known, that there were glaring serious disputes of facts but nevertheless instituted this court application and moved that this court should not stand over the matter for trial for oral evidence to be heard but should simply dismiss the application with costs on a punitive scale.

This court was referred to the case of Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H).., where McNALLY J…, quoted with approval the South African case of Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398…, where MILLER JA had this to say:

“A litigant is entitled to seek relief by way of notice of motion. If he has reason to believe that facts essential to the success of his claim will probably be disputed, he chooses that procedural form at his peril, for the court, in the exercise of its discretion, might decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be placed before it, but to dismiss the application.”

Jeremy Musgrave stated, in paragraph 36 of the applicant's founding affidavit. that:-

“To applicant delegates' utter shock and disbelief, at the meeting, George Maulidi, the author of the letters I have referred to, professed ignorance of the transaction. Upon being asked to explain why he had written the letters he had in support of the transfer to applicant he claimed to have acted on instructions given by Chinyame and was otherwise unaware of the reason behind the transfer.

This is surprising because in his letter to Miss Coyne, dated 22^nd October 2003, he said David Whitehead Textiles and National Blankets demerged in October 2001 and it was resolved that the above property be split…, and requested the split be effected “soonest”.”

It therefore admits of no doubt that Jeremy Musgrave and his delegation knew that the transaction was being hotly disputed and ought to have known that a full trial was the only way the applicant could prove its claim.

Yet it was submitted, on behalf of the applicant, that the following factors, taken either singly or cumulative, point to the transaction having been entered into:-

(i) The affidavits of Jeremy Musgrave;

(ii) The supporting affidavit of Vernon Lapham;

(iii) The supporting affidavit of Edwin Chimanye;

(iv) The supporting statement of Daphne Ritson;

(v) The application to the City of Harare by the respondent for a sub-divisional permit;

(vi) Letter by George Maulidi to Gill, Godlonton & Gerrans giving instructions for the transfer to the applicant and confirming there was such a resolution;

(vii) Letter by E Chivaura confirming the transaction;

(viii) Use and occupation of the property rent-free by applicant at all material times;

(ix) Failure by respondent to demonstrate by what transaction, if not this transaction, of how respondent ceased being an 88.06% subsidiary of the applicant.

HH212-14 : SUSAN TAURAI MAPUNDE DUBE NO (In her capacity as the Executrix Dative Estate Late Daniel Dube) vs ROBERT MATOKA and THE REGISTRAR OF DEEDS and THE MASTER OF THE HIGH COURT
Ruled By: MAWADZE J

The question one should answer in relation to the deceased's mental state at the material time is whether there is a material dispute of fact in that regard which cannot be resolved on the papers - even after taking a robust approach. The same applies to the question of whether the element of fraud has ...

The sum total of the applicant's argument, on the issues in dispute, is that I should adopt the approach enunciated in Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 388…, where it was stated that;

“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.”

I am satisfied that there are real and material disputes of facts in this matter, both in relation to the allegation of fraud and the deceased's alleged mental state, which cannot be resolved on the papers filed. I have already summarised in much detail the contrasting versions of the applicant and the first respondent on the contentious issues. I shall therefore simply highlight the difficulty the court has faced in resolving these disputes.

(a) Whether proper service was effected in HC6820/11:

While it is accepted that service was not effected at the domicillium in terms of the Agreement of Sale, the question which arises is whether the first respondent acted fraudulently or proper service on the instructions of the deceased was effected.

The applicant's case is that there was no basis to serve the court application at an address the deceased was not residing which is a place the first respondent was staying except to ensure that the deceased would not receive the court application and to fraudulently obtain a default judgment. The first respondent has given an explanation as to why service was not done at the domicillium and insisted that proper service was therefore effected and that the deceased was aware of the court process.

The affidavit of Webster Mandimutsa cannot be simply dismissed as false without showing why it is false. I am unable to agree, on the basis of the applicant's assertion, that Nickson Chibvonda, who deposed to an affidavit, is a fictitious person and that he does not exist. I am also not able to disregard Mr Chinyama's evidence that he served the court order on the deceased. In my view, both versions by the applicant and the respondent remain probable. In other words, there are legitimate concerns raised in relation to the propriety of the service of the court application and there is a prima facie plausable explanation tendered by the first respondent.

The dispute cannot be resolved on the papers filed of record.

(b) The allegation that the transfer was improper:

The applicant has put into issue the Agreement of Sale and the manner the first respondent allegedly hurriedly effected transfer of the property a few days after the deceased's death. The applicant has also raised doubt as to whether the deceased received any purchase price in view of the inconsistencies between Itayi Munyeza, the first respondent and Mr Chinyama on when and how the purchase price was paid.

The applicant has, with good cause, questioned the role of Mr Chinyama and his legal firm in this matter. Mr Chinyama acted for the deceased as he said but thereafter acted for the first respondent - virtually in the same transaction. There is apparent conflict of interest and it is his firm which also effected the disputed service of the court application and also effected transfer of the property after obtaining the order in HC6820/11. The applicant raises several allegations against Mr Chinyama, a senior legal practitioner and officer of this court. On the other hand, Mr Chinyama has given his own version of events insisting that his conduct was above board and that due process was followed. Relevant documents, like the lease agreement, agreement of sale, cancellation of bond, acknowledgment of payment and the court order completion transfer, were provided.

It would not be possible to resolve this factual dispute I have alluded to and the propriety or otherwise of the roles played by Mr Chinyama and Itayi Munyeza in this matter.

(c) Deceased's alleged mental capacity:

The applicant has raised genuine concerns about the deceased's alleged mental illness. On the other hand, the first respondent has denied all these allegations and gave his own version. Let me just highlight some of these disputed facts:

(a) It is not in dispute that in 2006, as per the applicant and doctor Chimedza's evidence, the deceased suffered from some mental illness diagnosed as manic depression disorder. I do not believe that the applicant fabricates the story of the deceased derobing in public and all other observations corroborated by other witnesses who filed supporting affidavits. It is also correct that Doctor Chimedza is not a psychiatrist, and, most importantly, the bulk of his evidence relates to 2006 - some five years before the signing of the Agreement of Sale in May 2011.The applicant's evidence is that she last interacted with the deceased in 2009. It is also the applicant's case that at times the deceased had lucid moments.

Without giving further details, the applicant has not placed before the court clear and relevant evidence about the deceased's state of mind during the relevant period in 2011. One would have thought that the evidence of the deceased's parents who stayed with him from 2010 until his death in 2012 would be relevant. On the other hand, the first respondent, Mr Chinyama and Itayi Munyeza have disputed the deceased's state of mind. While one may be tempted to dismiss their evidence on account of the fact of them not being medical experts, they gave detailed evidence of their interaction with the deceased and why they came to the conclusion that the deceased was of sound mind.

Such evidence can only be properly interrogated in cross-examination.

(b) The fact that the deceased just abandoned the property with all movable property inside may be indicative of his mental state. However, the question remains why the applicant also abandoned the same property and why the deceased's relatives failed to take action to protect the property if at all the deceased was mentally ill.

(c) The sale of the property, probably valued at USD230,000=, for a paltry USD50,000= may be indicative of an unstable mind as the deceased would not have failed to appreciate the value of the property he acquired being an astute economist himself. On the other hand, the first respondent and Itayi Munyeza explained the possible reason why the deceased accepted USD50,000=.

It may be true that the deceased felt betrayed by those close to him when his fortunes waned and was abandoned. It may be true that the first respondent is a cunning and calculating policeman who took advantage of his role in investigating the burglary and subsequently took advantage of the deceased's mental state to dispossess him of his property through a well crafted and elaborate process. It is equally true that the first respondent can be the biblical good samaritan who helped the deceased in time of need and was genuinely rewarded by the grateful deceased after which he followed all due process to take possession of the property.

(d) The deceased may be deemed to have been non-compos mentis on account of a number of factors stated like abandoning the property, failure to pay utility bills, undressing in public, inability to hold meaningful conversion, refusing medication, staying in the streets, accusing wife of witchcraft, talking to himself, preaching and reading the bible incessantly, failure to pay for services rendered and crying for no reason. All these factors, taken cumulatively, may show that the deceased was non- compos mentis at the relevant time on 20 May 2011 when the Agreement of Sale was signed, which would render it null and void and the transfer of the property, a nullity.

On the other hand, there is evidence that the deceased exhibited lucid moments like signing all relevant documents produced. His signature has not been put in issue. He approached Wintertons to cancel the bond and went to the law firm to collect his title deeds which he signed for. His interaction with Mr Chinyama and Itayi Munyeza are of a person who was in his sound and sober senses.

I am therefore satisfied that there are material disputes of facts in this matter which cannot be resolved on the papers filed. In the exercise of my discretion, I have two options, which is to dismiss the application, see Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232…, and Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H) or to refer this matter to trial.

I have opted for the latter option because I am of the view that the interests of justice are better served if this matter is referred to trial. The matter involves the property in which the applicant and a minor child have an interest. There are serious questions which arise in this matter which can only be answered after the trial process. At this stage, it is unfair and unjust to dismiss the matter as there is a possibility that the first respondent may have acted improperly. A proper ventilation of all the issues through a trial process would resolve these material disputes of facts and put the matter to rest in a fair and just manner.

Accordingly, it is ordered that:

1. The matter be and is hereby referred to trial.

2. The court application shall stand as the summons and the notice of opposition as the appearance to defend.

3. The applicant be and is hereby ordered to file the declaration within 10 days of this order and thereafter the matter shall proceed in terms of the Rules of this court.

4. Costs shall be in the cause.

HB196-11 : MOVEMENT FOR DEMOCRATIC CHANGE and PRISCILA MISIHAIRAMBWI-MUSHONGA vs PROFESSOR ARTHUR MUTAMBARA
Ruled By: KAMOCHA J

It was also raised, in limine, that there were material disputes of fact. For instance, it was contended that the gathering of 8 and 9 January 2011 was not the 3rd congress of the party when in fact is was demonstrated that the respondent was being untruthful and perjured himself when he made those averments.

HH295-14 : SURFACE INVESTMENTS (PRIVATE) LIMITED vs MAURICE CHINYANI
Ruled By: DUBE J

The respondent has asked this court to dismiss the application and refer it to trial on the basis of the existence of a material dispute of fact over the existence of the Vehicle Scheme. The court is only required to refer a matter for trial where material disputes of facts exist and if it cannot resolve ...

The respondent has asked this court to dismiss the application and refer it to trial on the basis of the existence of a material dispute of fact over the existence of the Vehicle Scheme.

The court is only required to refer a matter for trial where material disputes of facts exist and if it cannot resolve the dispute on the papers before it. I am going to take a robust approach and resolve the issue on the papers before me. I will examine the Scheme and determine if the respondent was, in terms of that Scheme, entitled to purchase the vehicle.

Clause 4 and 5 of the Scheme reads as follows;

“4. Depreciation

Except when directed by the Board otherwise or in specific contractual circumstances, vehicles will be depreciated over a five year period. At the end of the said period, the employee will be entitled to purchase the vehicle at the residual value, being ten percent of original cost.”

5. Transitional Provisions

Where the company is not yet in a position to provide a vehicle, the eligible employee will be paid for both capital and running expenses for use of their personal vehicles on the same terms and conditions as provided in this motor vehicle scheme.”

The gist of these clauses is, firstly, that the employee is required to purchase the vehicle at the end of five years. The vehicles would be depreciated over a five year period. Secondly, clause 4 presupposes that the incumbent will be required to have driven the vehicle for 5 years before he can purchase it. That vehicle had not been depreciated over a five year period. There was no direction by the Board waiving this requirement to sell the vehicle before the 5 years had elapsed. The applicant drove the vehicle for just two years, and is not, in terms of clause 4, entitled to purchase the vehicle. The transitional provisions make provision for payment of capital and running expenses where the company is not in a position to provide a vehicle. There is no provision that the period over which an employee would have driven his own vehicle would be taken into account for purposes of calculating the five year period. He was paid his capital and running expenses and was therefore adequately compensated. Reference, under clause 5, to the effect that such employee would be entitled to capital and running expenses “on the same terms and conditions as provided for in this motor vehicle scheme'' refers to clause 6 which deals with payment of car maintenance allowances and other running costs.

The respondent has not been able to point to any right or entitlement to the car. The applicant is entitled to the return of its vehicle. The respondent therefore has no basis to continue holding onto the vehicle.

In the result, it is ordered as follows;

1. THAT the Respondent be and is hereby ordered, within 24 hours of the grant of this order (or of service of this order on him) to deliver the Applicant's motor vehicle, to wit, a Mercedes Benz Registration number ABP 7891, to the Applicant at its premises, at 20647 Masanga Road, Chitungwiza.

2. That in the event of the Respondent failing to comply with Paragraph 1 hereof, the Deputy Sheriff for Harare be and is hereby ordered, authorized and required, to seize the aforesaid motor vehicle from Respondent, or from whomsoever and wherever it be found, and to deliver same to the Applicant at the aforesaid premises.

3. That in the execution of the provisions of Paragraph 2 above, the Deputy Sheriff be and is hereby authorised to enlist the services and/or assistance of the Zimbabwe Republic Police and/or any other service providers as he may deem necessary.

4. That the costs of this application, together with any costs attendant upon giving effect to this order, shall be paid by the Respondent.

HH315-14 : TECLA KAMBARAMI vs PETER MAJONGWE and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF HARARE
Ruled By: DUBE J

The respondent contended that a dispute of fact arises on the papers. He submitted that the dispute relates to whether the sale transaction referred to in the emails and agreement document related to the sale of a half share or full Stand. The respondent submitted that the applicant, being aware of the existence of material disputes ...

HB107-14 : SITHEMBINKOSI DUBE vs SIMANGELE DUBE and RING DUBE and THE ASSISTANT MASTER N.O.
Ruled By: MOYO J

The second respondent raised a point in limine that, in fact, the applicant should not have proceeded by way of application and that the issues are obviously so contentious that only an action would resolve this matter. At the close of arguments by both counsel, counsel for the applicant conceded that, in fact, there are material disputes ...

The second respondent raised a point in limine that, in fact, the applicant should not have proceeded by way of application and that the issues are obviously so contentious that only an action would resolve this matter.

At the close of arguments by both counsel, counsel for the applicant conceded that, in fact, there are material disputes of fact in this matter and he submitted that the court should not penalise the applicant for the approach she adopted as she was under a lot of pressure since the second respondent was about to register the estate of the late Sonto Dube and have herself appointed as executrix, yet the will provided for an executor testamentary.

I will therefore not dwell on the aspect of whether there is a material dispute of fact or not as we are all in agreement that there is. What remains is for the court to then assess whether this is one of the cases that should then be referred to trial or be dismissed at this stage.

At this juncture, I will refer to the case of Masukusa v National Foods Ltd and Another 1983 ZLR (1)…, where McNALLY J…, stated thus:

“Where the facts are in dispute, the court has a discretion as to whether to dismiss the application or allow the matter to go to evidence. The first course is appropriate where an applicant should, when launching his application, have realised that a serious dispute of fact was inevitable.”

Refer as well to the case of Jirira v Zimcourt Trustees Ltd and Another HH98-10.

In the case before me, the applicant filed this application seeking an order that the Will of the late Sonto Dube be declared null and void. She states, in paragraph 7 of her founding affidavit, that:-

“That I would like to oppose and challenge the admission of the Will alleged to have been made by Sonto Dube for a number of reasons. Inter alia, I do not believe it was made by Sonto Dube, and even if it is proved to have been made by him, I challenge the legal basis on which he could bequeath the property that he purports to bequeath on the ground that he was not the owner of the property.”

This paragraph gives the very basis of this application.

The applicant does not believe that the Will was made by the late Sonto Dube hence her challenge to its validity. How will the applicant prove to the court, on paper, her lack of belief? Evidence obviously is needed, factual averments as to why there is this perception on the applicant's part that the Will was not made by the late Sonto Dube.

Can this aspect be resolved on paper? Certainly not.

It should have been so obvious at the inception of this application that the applicant's beliefs or otherwise regarding the validity of the late Sonto Dube's Will can only be resolved through viva voce evidence and in no other way.

Again, the applicant states Sonto Dube (who according to her own affidavit is the registered owner of the Stand in issue), is, in fact, not its true owner hence he could not bequeath the property.

There are serious factual issues here.

There is need for oral evidence to be led on who, in fact, acquired this property; ownership of this property, that is, and how the late Phineas Dube is the owner of a property registered in Sonto Dube's name. Viva voce evidence has to be led to establish why the late Phineas Dube acquired the immovable property in his father's (the late Sonto Dube's) name.

This is one case whose factual disputes are so glaringly obvious that the applicant is expected to have foreseen the practical difficulty of presenting her case on this platform.

I am unable to exercise my discretion in the applicant's favour.

I hold the same view as McNALLY J's views in Masukusa v National Foods Ltd and Another 1983 ZLR (1). The applicant in this case should have realised that her own allegations and beliefs on the validity or otherwise of the late Sonto Dube's Will, were, in fact, allegations that by their very own nature required viva voce evidence to be led to support and establish same. The applicant accordingly approached this court on a wrong platform.

I accordingly dismiss the application with costs.

CC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

This is an application under section 24(1) of the former Constitution for declaratory and consequential relief pursuant to the Declaration of Rights enshrined in that Constitution.

The applicant in this matter is HIV positive. He started his anti-retroviral treatment in 2003. On 19 February 2011, he was arrested at a meeting held to commemorate an AIDS activist. On the day of his arrest, he was detained at Harare Central Police Station and then taken to Harare Remand Prison on 23 February 2011.

The applicant avers that he was subjected to various forms of ill-treatment during his detention at both prisons and that his fundamental rights were consequently violated by the respondents.

In particular, he complains, that, at Harare Central Police Station, he was not allowed to use his cell-phone and was thereby denied access to his anti-retroviral medication. Furthermore, he was required to remain barefoot and with only one layer of clothing. In addition, the toilet facilities in the holding cells were unhygienic and deplorable. At Harare Remand Prison, he was denied access to his prescribed medication regime. Moreover, together with other inmates, he was stripped and made to jump up and down, and placed in solitary confinement for four days when he complained.

Having regard to this ill-treatment, the applicant seeks a declaratur to the effect that the respondents contravened sections15(1) and 20(1) of the Constitution relative to the protection against inhuman or degrading treatment and his freedom of expression, and that the conditions in the holding cells at Harare Central Police Station and the practice at Harare Remand Prison, of requiring inmates to strip naked, be declared inhuman and degrading.

He also seeks an order requiring the respondents to ensure that inmates be allowed full access to their respective anti-retroviral regimes, that no inmate be required to walk barefoot or be left with inadequate clothing, and that the toilet facilities in the holding cells at Harare Central Police Station be rehabilitated.

The respondents deny most of the applicant's assertions.

As regards Harare Central Police Station, they aver that the governing Police Manual prescribes that every inmate be required to surrender all his possessions, other than clothing for personal use, so as to avoid his harming himself; again, cell phones, and other valuable articles, are ordinarily taken for safe custody.

The applicant did not request his cellphone and did not tell the police officers concerned about his HIV status and anti-retroviral regime.

All inmates in holding cells are given three blankets each and the toilets are cleaned and inspected every day. However, the toilet flushing mechanisms are placed outside the cells and therefore cannot be used by the inmates themselves. The respondents also concede that the conditions in the holding cells are not entirely acceptable. However, their rehabilitation is not immediately practicable.

With respect to Harare Remand Prison, the respondents aver that they employ qualified doctors to administer appropriate medication and that inmates may only bring their own medication if it is unavailable in the prisons stock. Moreover, the applicant did not lodge any complaint about his medication either upon admission or on discharge.

As regards strip searches, these are procedurally done and strict decency is observed.

Finally, the respondents aver that the practice of solitary confinement has been abolished and that the applicant was never subjected to this practice.

At the hearing of the matter, counsel for the applicant submitted that the respondent's assertions and denials are based on what should be in place as a matter of practice. In effect, they have failed to ascertain and rebut what actually happened to the applicant in relation to his medication and conditions of incarceration. He further submits that these bare denials do not raise any material disputes of fact that are not resoluble on the papers. The court should therefore take a robust view of the facts in order to do justice as between the parties.

Counsel for the respondents concedes that there are certain facts, for instance, the conditions in the cells at Harare Central Police Station, which are common cause. However, apart from this, there are substantial disputes of fact that were foreseeable before this application was instituted. Consequently, he submits that the matter should be dismissed or struck off to be instituted afresh.

MATERIAL DISPUTES OF FACT

As a general rule, in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party: see Masukusa v National Foods Ltd & Another 1983 (1) ZLR 232 (S)…,.; Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S)…,.; Ex-Combatants Security Co. v Midlands State University 2006 (1) ZLR 531 (H)…,.

The first enquiry is to ascertain whether or not there is a real dispute of fact.

As was observed by MAKARAU JP…, in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)…,:

“A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed 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.”

In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence: see Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd 1949 (3) SA 1155 (T)…,.; Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd SC146-86; Boka Enterprises v Joowalay & Another 1988 (1) ZLR 107 (S)…,.; Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.

The respondent's defence must be set out in clear and cogent detail. A bare denial of the applicant's material averments does not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard.

See Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd 1949 (3) SA 1155 (T) cited with approval in Vittareal Flats (Pvt) Ltd v Undenge & Others 2005 (2) ZLR 176 (H)…,; Van Niekerk v Van Niekerk & Others 1999 (1) ZLR 421 (S)…,.

DISPUTES OF FACT IN THE PRESENT MATTER

In their opposing papers, the respondents make certain clear concessions in response to the applicant's averments concerning the conditions at Harare Central Police Station.

The second respondent (Officer Commanding Harare Central District) admits that the toilets in the holding cells are not screened and that there is no flushing mechanism for use by inmates within any given cell. He also accepts, that, although each inmate should be given three blankets, no mattresses are provided for inmates to sleep on.

Apart from this, all the other averments of the applicant are denied, either in their totality or in terms that substantially contradict the applicant's assertions.

In certain respects, the respondents' denials are not sufficiently detailed.

For instance, the sixth respondent (Commissioner General of Prisons) admits that strip searches are conducted in prisons, but avers simply that they are carried out procedurally and that strict decency is observed. He also asserts, rather tersely, that the practice of solitary confinement has been abolished and that the applicant was never subjected to such confinement.

Nevertheless, despite the laconic nature of these denials, and the failure to elaborate them, they are quite categorical in contradicting the applicant's averments.

Taken in the overall context, they cannot be rejected or disregarded as mere fabrication.

In the final analysis, I am of the considered view that the conflicting positions of the parties in casu are irreconcilable on the papers in several critical respects.

The affidavit evidence does not clearly establish the veracity of all of the applicant's complaints to the extent that it can be said that there is a “ready answer to the dispute between the parties in the absence of further evidence.” As was properly conceded by counsel for the applicant, all of the relief sought herein involves having to make findings of fact, and only a few of the relevant facts are resoluble on the papers.

I accordingly conclude, that, there are material and significant disputes of fact that can only be resolved by the calling of oral evidence in trial proceedings.

DISPOSITION

In determining this matter, it is necessary to have regard to the primary purpose of section 24 of the former Constitution. As was succinctly explained by BARON JA in Mandirwhe v Minister of State 1986 (1) ZLR 1 (S)…,:

“The purpose of section 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual's fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value: and even where speed is not of the essence, there are obvious advantages to the litigants, and to the public, to have an important constitutional issue decided directly by the Appellate Division without protracted litigation.”

The facts of the present matter do not evince any need for its speedy resolution.

The applicant is no longer in custody and he does not stand in jeopardy of any immediate harm or privation being inflicted upon him. The redress that he seeks arises from events and practices that have already occurred, but relates to the prevention of their recurrence in the future.

In either case, I do not perceive any urgency warranting a rough and robust approach to the facts under consideration.

In terms of section 24(4) of the Constitution, the court is endowed with the power to:

“…, make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights.”

Given the factual disputes alluded to earlier, it is clearly not possible for this Court to proceed with this application as it stands at this stage. Matters of evidence and credibility are generally beyond the practical remit of this Court, and, without firm findings of fact, the court is unable to entertain the substantive relief sought by the applicant.

It is of course open to the court to strike off or dismiss the application on the technical ground that the applicant has adopted the wrong procedure and should have instituted this matter by way of action in the High Court. However, in view of the unquestionable public importance of the issues raised, both generally, and, in the particular context of persons with HIV or AIDS, I take the view that the discretion of this Court should be exercised in favour of retaining this matter on the roll until the constitutional issues raised are properly resolved.

I therefore consider it prudent and necessary to refer this application to the High Court for it to proceed as an action for trial and for that court to determine the matter in its entirety.

It is accordingly ordered that:

1. This application be and is hereby referred for trial to the High Court for determination on the facts and on its merits.

2. For the purposes of trial, the notice of application and notice of opposition filed of record herein shall respectively stand as the summons and notice of appearance to defend.

3. The plaintiff (the applicant herein) shall file his declaration within 10 days from the date of this order.

4. The matter shall thereafter proceed in accordance with the Rules of the High Court.

5. In the event that any party is aggrieved by the decision of the High Court, whether on the facts or on the merits, he is hereby given leave to appeal to this Court within 10 days from the date of that decision.

6. The costs of this application shall be costs in the cause.

SC08-13 : NOBILITY DIMBI vs RONWEN INVESTMENT (PVT) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

In Sumbereru v Chirunda 1992 (1) ZLR 240 (H) it is stated that opposition to an application on notice of motion is a shield of defence not a sword of attack. A respondent who has an attack must mount a counter application in terms of Rule 229A of the High Court Rules. The ...

SC19-16 : PATRICIA DARANGWA N. O. (Capacity as Executrix Dative of Estate Late Juliet Munjeri) vs ELLA MUNJERI and OLIVER NAKOMA (Capacity as Executor Dative of Estate Late Bookwet Munjeri) and OTHERS
Ruled By: UCHENA JA

It is true that there is, on file, correspondence from Ella Munjeri talking of divorce and Bookwet Jonathan Munjeri being granted custody. It seems to me that the applicant has an arguable case on whether, on the facts of this case, it was proper for the court a quo to take a robust ...

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

The applicant is a Trust duly registered in terms of the laws of this country whereas the fifth respondent is a limited liability company registered in terms of the laws of this country. The first to fourth respondents are sole shareholders and directors in the fifth respondent, Saltana Enterprises (Pvt) Ltd.

The fifth respondent is currently under judicial management. Its judicial manager, Mr C Madondo, has, however, since filed a letter saying that he has no interest in this case and will abide by the decision of this Court and has sent a representative for an observation brief.

That being the case, the question of the fifth respondent's locus standi, that is to say, the right to stand and be heard in court, becomes a non-issue.

The first and second respondents are husband and wife. The same applies to the third and fourth respondents.

At the commencement of this hearing, the first and third respondents requested that their wives be excused from the hearing and that they be allowed to represent and speak on behalf of their respective wives to save costs.

There being no objection from counsel for the applicant, I granted the two respondents permission to represent and speak on behalf of their wives.

In any case, the two wives were already in default and would have had default judgments entered against them anyway. It is highly unlikely that they can successfully apply for rescission of judgment seeing that the defaults appear to be willful and deliberate. For that reason, I cannot perceive any prejudice which cannot be redressed by an appropriate order of costs if their husbands are allowed to speak on their behalf with the applicant's consent.

In this regard, I find the applicant's attitude commendable in that it is not trying to snatch at default judgement but to obtain judgment on the merits.

In granting this unusual request, I was alive to the peculiar relationship between husband and wife in that they normally have a common interest and household.

Generally speaking, at common law, the husband is the head of the family and has the marital power although the position has been somewhat altered by statute. In Christian parlance, they are said to become one flesh and blood at marriage.

That being the case, I could perceive no impediment or impropriety in a husband representing his wife in a case in which they are jointly being sued and there is no objection from the other party.

The respondents objected to the matter being placed before this Court arguing that the dispute ought to have been referred for arbitration in terms of clause 13 of the contract which provides as follows:

“In the event of a dispute or a claim arising as a result of a breach of this agreement or other cause arising from this agreement, then, the purchaser shall be entitled, after notifying the seller beforehand, to have the dispute or claim or other cause referred to arbitration.”

My reading of the above clause is that it does not compel the applicant to refer the matter for arbitration in the event of a dispute arising. It merely entitles, without directing, the applicant to refer the dispute for arbitration.

In other words, the clause merely confers a discretion on the applicant whether or not to refer the matter to arbitration without impeding its right to approach the Courts for redress.

For that reason, I hold that the applicant was within its rights in referring the dispute to court for resolution.

Having said that, I now turn to determine the matter on the merits.

The facts giving rise to this application are to a large extent common cause. The undisputed facts are that some time in March 2005 the first to fourth respondents (hereinafter referred to as the respondents) concluded a written contract in terms of which they sold to the applicant their entire shareholding in the fifth respondent to the applicant.

The written contract of sale was subject to various suspensive conditions in favour of the applicant. The contract however conferred upon the applicant the right to waive the suspensive conditions thereby bringing the terms of the contract into force.

The applicant subsequently waived its rights under the suspensive conditions sometime in June 2005 and demanded that the respondents perform their part of the bargain in terms of the written contract.

The respondents took exception and objected on the basis that they had already cancelled the contract on account of breach of contract. In particular, they objected on the basis that the applicant had not discharged its obligations under clause 1. 2.18 of the contract. That clause falls under the definition section of the agreement and it provides as follows:

“'Signature date' means the date of signature of this agreement by the party last signing.

As soon as possible thereafter the amount of $100 million shall be paid to the Sellers in equal portion of $25 million each in such consideration as the Purchaser shall determine at its sole discretion. A further amount of $100 million shall thereafter be paid to the Sellers on similar terms, on the Effective Date.”

The respondents acknowledged having been paid the initial $100 million dollars in terms of the above clause but denied having been paid the remaining $100 million dollars.

The alleged non-payment of that amount forms the basis of the respondents' refusal to perform their part of the bargain and purported cancellation of the contract.

The applicant denies that it breached any material terms of the contract as alleged or at all thereby entitling the respondents to cancel the contract.

Firstly, it denies that it failed to pay the remaining $100 million dollars as alleged by the respondents.

This is a factual dispute incapable of determination on the papers. Fortunately, it is not necessary to resolve that factual dispute for the purpose of determining this matter.

HH95-17 : THOMAS PASI vs WONDER MUSHURE and LINDA MADZIVAIDZE N.O. [Executrix Dative Estate Taurayi Madzivaidze] and LINDA MADZIVAIDZE and THE REGISTRAR OF DEEDS N.O. and MASTER OF THE HIGH COURT N.O.
Ruled By: MAFUSIRE J

A party wanting to illustrate and rely on a dispute of fact must put forward cogent facts of his own version of events that must contrast with that of the other party.

HH51-15 : JUSTIN MUPAMHANGA vs SAUL GOMWE and JUSTICE DHLIWAYO and BLESSING DOMBOJENA and MINISTER OF LAND AND RURAL RESETTLEMENT (N.O)
Ruled By: MAKONI J

Although the respondents are correct regarding the issues of material disputes of facts, my view is that I can adopt a robust approach and determine the matter on the papers…,.

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

Material disputes of facts From the way I outlined the facts of this matter at the onset, it is clear that there are material disputes of facts. The versions of the parties as to the events in this matter are so divergent that this court cannot reconcile them on the papers. Both deponents to the affidavits in ...

Material disputes of facts

From the way I outlined the facts of this matter at the onset, it is clear that there are material disputes of facts. The versions of the parties as to the events in this matter are so divergent that this court cannot reconcile them on the papers. Both deponents to the affidavits in this matter aver that they are the shareholders and directors of the applicant. They both produce share certificates and allege that the other share certificates are fake. The deponent to the founding affidavit avers that he purchased the respondent's shares. There is no agreement attached.

Counsel for the applicant did not make any meaningful submissions on this issue.

It is clear that there are material disputes of fact which cannot be resolved on the papers. The respondent applied for the application to be dismissed on that basis. It must have been clear to the applicant that there is a “bona fide and not mere illusion dispute of fact.” See Zimbabwe Bonded Fibre Glass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…,. The same approach was adopted in Mashingaidze v Mashingaidze 1995 (1) ZLR 219…, where ROBINSON J…, stated -

“It is necessary to discourage the too-oft recurring practice whereby applicants who know, or should know, as was the case with the applicant in this matter, that real and substantial disputes of fact will, or are, likely to arise on the papers, nevertheless resort to application proceedings on the basis that, at the worst, they can count on the court to stand over the matter for trial.

Unless this practice is seen to be curbed, applicants will continue to believe that there have nothing to lose and everything to gain, tactically, by embarking upon application proceedings notwithstanding their knowledge, or belief, at the time of doing so, that the respondent will be able to show that genuine and serious disputes of fact exist on the papers.”

I will have no difficulty in dismissing the application.

I will grant the point in limine and proceed to grant the following order. It is ordered that:

1. The application is dismissed.

2. The applicant to pay the respondent's costs.

HH747-15 : BARRY JAMES WARWICK vs MERCY JONGA
Ruled By: MATHONSI J

The second point in limine relates to a perceived dispute of fact which probably exists in the imagination of the respondent.

HH85-15 : CROWHILL COMPANY (PVT) LTD vs CYNTHIA MAADZA and THE ZIMBABWE WAR VETERANS ASSOCIATION
Ruled By: MUREMBA J

5. Material dispute of facts It was submitted that there were material dispute of facts which did not enable this matter to be decided on paper but through action procedure. Counsel for the respondents said that there was need to lead oral evidence to resolve issues that are were in dispute; for example, the dispute on who had title ...

HB136-16 : ZAMBUKO APOSTOLIC CHURCH and ONISIMUS TAKAVADIYI vs EUNICE MLAUZI and CITY OF BULAWAYO
Ruled By: MATHONSI J

Counsel for the first respondent submitted that there are disputes of fact which cannot be resolved on the papers. As I have said, those facts which are common cause resolve the dispute. There is therefore no merit in that submission.

Appealed
SC05-18 : JENNIFER BROOKER and ADRIENNE PIERCE vs RICHARD MUDHANDA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

The failure by the court a quo to call evidence was akin to a court which determines a matter through the application procedure in the face of material disputes of fact…,. In my view, the court should have, in terms of the Rules, given directions to the parties on how the matter should have proceeded. There was nothing which ...

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

WHETHER THERE WERE MATERIAL DISPUTES OF FACT In the court a quo, the respondent submitted that there were serious disputes of fact which could not be resolved on the papers without the parties giving viva voce evidence and being cross-examined. The disputes related to the following issues: (i) Whether the maintenance payment of $2,000= per annum was for the appellant personally or the ...

WHETHER THERE WERE MATERIAL DISPUTES OF FACT

In the court a quo, the respondent submitted that there were serious disputes of fact which could not be resolved on the papers without the parties giving viva voce evidence and being cross-examined. The disputes related to the following issues:

(i) Whether the maintenance payment of $2,000= per annum was for the appellant personally or the children;

(ii) The amount actually paid by the respondent to the appellant per month – whether it was $307= or $560=;

(iii) The identity of the assets owned by the respondent and their value;

(iv) The respondent's monthly income;

(v) The amount that the appellant herself channels towards the maintenance of the children;

(vi) Whether there has been an increase in the cost of living since 2009; and

(vii) Whether the document produced by the appellant, which purports to have been prepared by the respondent, and which reflects a number of assets and considerable annual income, is genuine.

The court a quo accepted that “there were contentious issues that require ventilation.”

Despite that acceptance, the court went on to find that the appellant appeared to have realized that she had not been able to get a good bargain and for that reason was seeking to revisit the consent paper. It found that this cannot amount to good cause. Further, the court found that the appellant was aware, at the time the parties entered into a consent paper, that maintenance would be payable only until the children attained the age of majority after which they would choose who to stay with. The court further found that even the claim for an increase of maintenance for the children was not substantiated. It also found that no good cause had been shown why, having agreed that maintenance terminates when the children attained the age of majority, the appellant now wanted the respondent to maintain her in perpetuity. In the result, the court found that the appellant had not shown any change of circumstances amounting to good cause warranting variation of the maintenance in respect of herself. The court accordingly dismissed the application both in respect of the appellant and the minor children.

At the hearing of the matter before this court, counsel for the appellant accepted that there were disputes of fact but urged this court to take a robust approach and take into account all salient factors and the fact that the general cost of living had gone up. Counsel also accepted that the matter could be remitted for the hearing of viva voce evidence.

Counsel for the respondent, on the other hand, submitted that, if this Court comes to the conclusion that the court a quo was correct in finding that the application by the appellant was an attempt to revisit the consent paper, then that would be the end of the matter and the question whether disputes of fact exist would not arise. Secondly, he submitted that the appellant had chosen the application procedure well aware that there were disputes of fact which disputes may warrant the dismissal of the application for that reason. Lastly, he submitted that the document which purports to shed new light on his assets and income was attached for the first time in the answering affidavit and the court a quo correctly found that the appellant could not make her case in an answering affidavit.

There is no doubt at all that there were disputes of fact which required resolution before the court a quo could consider the question of good cause. Without resolving those disputes, and this goes without saying, the court was handicapped in coming to a proper conclusion on whether indeed there was good cause, as such good cause depended on the findings that the court would make on those disputed facts.

In determining the issue of good cause, without resolving the dispute on the facts, the decision of the court resulted in an injustice. The interests of the minor children were not addressed at all and the application for an upward variation of their maintenance was treated in the same cursory manner as the application by the appellant herself - which application was viewed by the court as an attempt to correct what she believed had been a bad bargain. The court should either have heard evidence itself in order to determine the issues before it, or, alternatively, referred the matter to trial.

It did neither. In this respect it was therefore wrong….,.

The High Court Rules permit a court hearing an application to allow any person to give oral evidence if it is in the interest of justice for such evidence to be heard (Rule 229B and Rule 239(b)). Alternatively, the court can direct that the matter be referred to trial.

In the circumstances of this case, the court a quo should, itself, have heard evidence in order to properly determine the issues before it….,.

1….,.

2….,.

3. The matter is remitted to the High Court for the resolution of the following issues, with viva voce evidence being led, if necessary:-

(a) The extent of the upward variation of the maintenance payable in respect of each of the children;

(b) The duration of the maintenance referred to in paragraph (a) above;

(c) Whether, in terms of the order of the High Court, the sum of $2,000= payable per annum by the respondent is in respect of the maintenance of the appellant, and, if so, whether this should be increased and the extent thereof. In the event that it is found that there is need for the upward variation of the maintenance due to the appellant, personally, whether this should be made payable until her death or remarriage but excluding any periods during which she cohabits with another man as if married.

4. The High Court may give such directions on the discovery, inspection and production of documents to be used during the hearing as it considers necessary.

View Appeal
HH394-16 : TRACEY LEIGH MACKINTOSH (nee PARKINSON) vs ANTONY WILLIAM McDONALD MACKINTOSH
Ruled By: MWAYERA J

It is trite that the court will not resolve disputed issues on affidavit. In this case, the applicant imputes dishonesty on the part of the respondent and alleges the respondent lied. This, of necessity, calls for a finding on who is telling the truth, which aspect cannot be decided on application proceedings. I subscribe to the sentiments echoed ...

View Appeal
HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

The respondent has alleged that there are material disputes of fact that justify the calling of oral evidence. They allege that there is a dispute over who controls the majority faction and that this dispute cannot be determined in the absence of evidence being led on that subject. They argue that the applicant should have come by ...

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR
Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

The position is now well established that not every dispute of fact in motion proceedings has to be sent for trial. The correct approach in this regard was enunciated by this Court in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 where GUBBAY JA…, stated…,: “It is, I think, well established that in motion proceedings a ...

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS
Ruled By: DUBE J

DISPUTES OF FACT Counsel for the thirty-fourth respondent submitted that there is a dispute of fact on the basis that all the councils do not charge all the taxes in issue and have denied that they do not charge all the taxes, levies and charges in issue. The resolution of the question of joinder disposes of the issue regarding the ...

HB149-16 : MUNATSI SHOKO vs OLD MUTUAL ZIMBABWE LIMITED
Ruled By: MOYO J

There is not much factual dispute and where factual disputes are present, I hold the view that they are not so material to the issues for determination.

Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

The approach on apparent disputes of facts has been set out in a number of cases. In Zimbabwe Bonded Fibreglass [Pvt] Ltd v Peech 1987 [2] ZLR 338 [SC] GUBBAY JA…, stated 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 ...

HB237-16 : PETROS MOYO vs ROBERT NCUBE
Ruled By: BERE J and MATHONSI J

The so-called dispute of fact was illusory. While it is true that the resolution of the dispute without doing an injustice to the other party is one of the prime considerations in allowing or disallowing the use of application procedure, the respondent must at least disclose that there are material issues in which there is bona fide dispute of ...

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO
Ruled By: MATHONSI J

The resolution of the dispute without doing an injustice to the other party is one of the prime considerations in allowing or disallowing the use of application procedure; Ex-combatants Security Co v Midlands State University 2006 (1) ZLR 531 (H)…,. My attention has also been drawn to the remarks of WESSELS JA in Da Matta v Otto ...

My attention has also been drawn to the remarks of WESSELS JA in Da Matta v Otto N.O 1972 (3) SA 858 (A) 882 I, that:

“In the preliminary inquiry, i.e as to the question whether or not a real dispute of fact has arisen, it is important to bear in mind that, if a respondent intends disputing a material fact deposed to on oath by the applicant in his founding affidavit or deposed to in any other affidavit filed by him, it is not sufficient for a respondent to resort to bare denials of applicant's material averments, as if he were filing a plea to a plaintiff's particulars of claim in a trial action. The respondent's affidavits must at least disclose that there are material issues in which there is a bona fide dispute of fact capable of being properly decided only after viva voce evidence has been heard.”

A party does not create a real dispute of fact by merely denying the allegations made by the applicant in the founding affidavit. That party must present a story in its defence which would lead the court to the conclusion that indeed a dispute of fact exists as cannot be resolved on the papers.

In any event, even where there exists a material dispute of fact, the court should still try to take a robust and common sense approach to the dispute and endeavour to resolve the dispute. If it succeeds, that would be a first prize. If it does not, then it still has an election to either dismiss the application, where the dispute must have been apparent when the applicant embarked on application procedure, or refer the matter to trial for a resolution of that dispute.

That is the recommendation made by GUBBAY JA…, in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…, where the following pronouncement appears:

“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 the 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. See Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1165; Soffiantini v Mould 1956 (4) SA 150 (E) at 154; Joosab and Others v Shah 1972 (1) RLR 137 (G) at 138 G-H; Lalla v Spafford NO and Others 1973 (2) RLR 241 (G) at 243 B; Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (HC).”

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM
Ruled By: MAKONESE J

2. Material disputes of fact The second preliminary point taken by the respondents is that the courts will not grant an order on application where there are material disputes of facts. The applicants allege that their houses and property have been destroyed and that they have been evicted or have been threatened with such eviction. The court has been ...

2. Material disputes of fact

The second preliminary point taken by the respondents is that the courts will not grant an order on application where there are material disputes of facts.

The applicants allege that their houses and property have been destroyed and that they have been evicted or have been threatened with such eviction. The court has been given the benefit of pictoral evidence of the situation obtaining on the ground by the applicants. An examination of the pictures attached to the application does not depict any destruction of any dwelling structure as alleged by the applicants. It is my view that, if any house, home or property had been destroyed there would be evidence of debris, furniture, scattered or strewn all over the place.

The respondents contend that the allegations of demolitions of property are a fabrication designed to create urgency. The first respondent avers out that it owns a certain piece of land adjacent to the communal land where the applicants reside. The piece of land measures 1,000 hectares in extent. The first respondent contends that none of the applicants reside in the area owned by the first respondent. There is only one single homestead which is situated close to the boundary of the estate owned by the first respondent. This property has not been damaged or destroyed.

The dispute of fact lies on two grounds;

(i) The first is that the respondents deny destruction of any property or eviction of any form.

(ii) The second is that there are no homesteads within the estate boundaries of land owned by the first respondent.

The nature of these disputes is exacerbated by what appears to be very scant information in the founding papers. The applicants all seem to allege that they were evicted or have their property destroyed. None of the applicants alleges, with any degree of specificity, the exact nature of property damaged as claimed or stated.

There is clearly a material dispute of fact which cannot be resolved on the papers.

See the case of Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (HC) where the court stated…, as follows:-

“It is necessary to discharge the too–oft recurring practice whereby applicants who know, or should know, as was the case with the applicant in this matter, that real and substantial disputes of fact will or likely to arise on the papers, nevertheless resort to application proceeding on the basis that, at the worst, they can count on the court to stand over the matter for trial.”

The court is satisfied that …, there are material disputes of fact which the applicants reasonably foresaw and which cannot be settled without leading oral evidence.

HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE
Ruled By: MAKONI J

Disputes of Facts The respondents contented that there are material disputes of fact that cannot be resolved on the papers. The applicant ought to have known of these material disputes of fact before embarking on the present proceedings. This is more particularly so as the applicant initially filed an urgent chamber application which was dismissed. The respondents, in ...

Disputes of Facts

The respondents contented that there are material disputes of fact that cannot be resolved on the papers. The applicant ought to have known of these material disputes of fact before embarking on the present proceedings. This is more particularly so as the applicant initially filed an urgent chamber application which was dismissed. The respondents, in those proceedings, pointed out to the applicant the existence of the material dispute of fact. The respondents made reference to Zimbabwe Bonded Fibre Glass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…, and Mashingaidze v Mashingaidze 1995 (1) ZLR…,.

The disputes of fact are contained in paragraph 45 of the respondents' Heads of Argument and they centre on the fact that the applicant relies upon certain undertakings given to it by the Government of Zimbabwe. These were not placed before the court. If the undertakings were accepted then the applicant, as it contends, acted upon such undertakings. There was a contract between the Government of Zimbabwe and the applicant other than the contracts attached to the applicant's founding affidavit.

The applicant alleges breach of the contract by the Government. The material terms of the contract have not been placed before the court. The applicant also attempted to give a breakdown of the amounts it alleges to have overpaid and expects the court to accept its statements on its mere say so.

The applicant contends that the issue before the court is a question of law and the applicant has furnished the courts with the necessary affidavits and written documents attached thereon from which the court can ascertain the facts and apply the law to establish a declaratur. The applicant referred to Room Hire Co. (Pvt) Ltd v Jeppe Street Mansions (Pvt) Ltd 1949 (3) SA…, and Mpumela v Berger Paints (Pvt) Ltd 1999 (2) ZLR 146 (S).

In Room Hire Co. (Pvt) Ltd v Jeppe Street Mansions (Pvt) Ltd 1949 (3) SA MURRAY JA observed, pertinently, that apart from those two (2) matters there where the procedure is prescribed by law such as ammonal matters and illiquid claims among others in which motion proceedings are not permissible at all -

“There is an area in which according to recognised practice a choice between motion proceedings and trial action is given according to whether there is or is not an absence of a real dispute between the parties on any material question of fact…,; the deciding factor is the existence of a dispute of fact, not as to law, and it is (with respect) difficult to appreciate what greater advantages are denied by a judicial officer from viva voce evidence, than from affidavits, when he has to ascertain only the law to be applied.”

I agree with the position adopted by the applicant that the issue that is before the court is a question of law.

The issue is whether or not Part 14 of the Mines and Minerals Act applies in ascertaining what royalties the applicant pays of the Mining Agreement. The applicant has placed before the court facts which are not disputed by the first respondent. It has placed before the court the Mining Agreement. There is no dispute as to whether it was amended. It has placed on record all the correspondence between it and the fourth respondent which the fourth respondent has not challenged. The court is being merely asked to interpret the documents attached and apply the law.

As was stated by MURRAY AJP in Room Hire Co. (Pvt) Ltd v Jeppe Street Mansions (Pvt) Ltd 1949 (3) SA, it is difficult to appreciate what greater advantages the court would derive from viva voce evidence other than from affidavits and written documents attached hereon when all the court is being asked to do is ascertain which law to apply.

In view of the above I will dismiss the point in limine.

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

In the application for joinder, the ninth respondent presented itself as a juristic person with the capacity to sue and be sued in its own name. The dispute of fact pertaining to its juristic status is not one that can be determined on the papers.

HH689-15 : THE SHERIFF OF THE HIGH COURT vs MUNYARADZI MAJONI and PAULINA MAJONI and MANDY M MAJONI and JAMES GUMBI
Ruled By: MAFUSIRE J

The court will adopt a robust and common sense approach and not an over fastidious one. See Room Hire Company (Private) Limited v Jeppe Street Mansions (Private) Limited 1949 (3) SA 1155 (T)…,; Soffiantini v Mould 1956 (4) SA 150; Masukusa v National Foods Limited Anor 1983 (1) ZLR 232 (H); and Zimbabwe Bonded Fibreglass (Private) Limited v Peech 1987 ...

HH654-14 : JAMES GUMBI vs MANDY MARGARET MAJONI
Ruled By: CHIGUMBA J

The plaintiff challenged the averments made on behalf of the defendant that there are material disputes of fact in this matter. The challenge was aimed at the alleged failure to disclose the nature of the disputes and at the alleged lack of substantiation of the disputes. The plaintiff submitted that the alleged disputes are “illusory” and “are of imaginative conjury”. The plaintiff referred the court to the case of Zimbabwe Bonded Fibreglass (Private) Limited v Peech 1987 (2) ZLR 338 (S)…, where the court said that:

“It is, I think, well established that in motion proceedings a court should endeavor to resolve disputes raised in affidavits without 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.”

Other cases which have pronounced on the issue of the cogency of evidence that is necessary to establish a real dispute of fact are: Room Hire Company (Private) Limited v Jeppe Street Mansions Private Limited 1959 (3) SA 115 (T)….,.

In Soffiantini v Mould1956 (4) SA 150E…, the court said the following:

“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 simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded by an over fastidious approach to a dispute raised in affidavits.”

See also Joosab & Ors v Shah1972 RLR 137 (G)…,.; Lalla v Spafford N.O. & Ors1973 RLR 241 (G)…,.; Masukusa v National Foods Limited & Anor1983 (1) ZLR (HC).

In Chisese v Alluvial Exploration Services (Private) LimitedHH13-12 this court said that:

“It is not all disputes of fact that matter in the determination of applications. It is the material disputes of fact that matter.”

Here is a brave attempt to summarise and restate the principles which ought to guide a court, in motion proceedings, where the oft heard lament of “there is a dispute of facts which cannot be resolved on the papers” is heard:

(a) If it is possible to take a bold and rational approach, which is not overly exacting or picky, and there is no real possibility of being unfair to the other party concerned, the dispute may be resolved on the papers.

(b) If it appears that the submission 'that there is a material dispute of fact' is a deliberate and transparent ploy, which is calculated to delay the resolution of the matter by making it appear to be difficult to do so on the papers, the court must be careful not to allow such a strategy to hamper its effectiveness or to defeat or delay the resolution of the matter.

(c) If the dispute of fact appears to be one that can confidently be relied on as being genuine, authentic, true and above board, and it is not merely deceptive or false, it is a material dispute of fact which may require viva voce evidence for it to be resolved.

(d) If the dispute of fact is one of substance, and has a bearing on the issue to be determined, it is a material dispute of fact which may require viva voce evidence for it to be resolved.

HH13-12 : YVONNE CHISESE vs ALLUVIAL EXPLORATION SERVICES (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

It is not all disputes of fact that matter in the determination of applications. It is the material disputes of fact that matter. I am not persuaded that there are such material disputes of fact as to have required the applicants to proceed by way of action.

prev 1 2 3 next

Back Main menu

Law Portal Zimbabwe

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

HH220-10 : BACHI FARM (PVT) LTD and COBBLESTONE INVESTMENTS and TRIBACK (PRIVATE) LIMITED vs OLIVER DZVENE and HOWARD MATARE and OTHERS Ruled By: CHIWESHE JP

HH223-10 : LOVEMORE GOREDEMA (In his capacity as the Executor of the Estate Late Robert Tendayi Magwenzi) vs PATRICIA MAGWENZI and CHARITY MAGWENZI and LUCKSON MAGWENZI and MASTER OF HIGH COURT Ruled By: GUVAVA J

HH236-10 : NATIONAL SOCIAL SECURITY AUTHORITY vs ALEC RYALS AND SKOTRIL (PRIVATE) LIMITED and ALEC KAGURU Ruled By: MUTEMA J

HH278-10 : RADIATOR AND TINNING (PVT) LTD vs RADIATOR AND TINNING (PVT) LTD WORKERS COMMITTEE and WALTER DUBE and LITOS CHIKWANDA and OTHERS Ruled By: MTSHIYA J

HB12-10 : BETTY GASELA vs LEONARD MALINGA and BULAWAYO CITY COUNCIL and THE REGISTRAR OF DEEDS Ruled By: KAMOCHA J

HH217-10 : HEIKO PETER HORSTMAN vs GARFIELD INVESTMENTS (PRIVATE LIMITED) and GODFREY MAKONI Ruled By: GOWORA J

HB39-10 : UNITED ASSOCIATES vs HIPPO VALLEY ESTATES LIMITED Ruled By: KAMOCHA J

HB62-10 : CORNIEL DUBE vs GEORGE GRAHAM and OFFICER-IN-CHARGE, MBEMBESI POLICE STATION and DEPUTY SHERIFF FOR BULAWAYO Ruled By: NDOU J

HH16-11 : WILLARD MAZHAWIDZA and DORNICA MAZHAWIDZA vs ISAYA MASHAYAKARARA Ruled By: CHATUKUTA J

HH48-11 : LEON GEOFFRY HEATHCOTE vs MP MATONGO and MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: BHUNU J

HH47-13 : ELLEN CHARI (nee CHAKAUNYANA) (In her capacity as Executrix Dative in estate of the Late YOBE CHARI) vs TAKUDZWA MUNOPFUKUTWA and THE MASTER OF THE HIGH COURT Ruled By: MAWADZE J

HH71-11 : NIGEL DAMIAN MORRIS vs CHIQUITA MORRIS and MASTER OF HIGH COURT Ruled By: MAWADZE J

HH111-11 : TOBACCO SALES FLOOR LIMITED vs SWIFT DEBT COLLECTORS (PVT) LTD t/a RUBY AUCTIONS Ruled By: GOWORA J

HH114-13 : JASSAT, MAHOMED AND ESSOF (PVT) LTD vs OAKVIEW INVESTMENTS (PVT) LTD Ruled By: ZHOU J

HH332-13 : NIGHERT SAVANIA and NORWICH TRADING (PVT) LIMITED vs NATHAN MNABA Ruled By: MATHONSI J

HH146-11 : LEO ELECTRICAL (PRIVATE) LIMITED vs ROSEMARY NYAHUYE N.O. [in her capacity as Executrix dative of the Estate of the late Farai Benjamin Njiwah] Ruled By: CHITAKUNYE J

HB92-11 : MINISTER OF DEFENCE vs RANGARIRAI GUNDA Ruled By: KAMOCHA J

HH184-14 : FATIMA MAGEDI and KENNEDY SAMURIWO vs RURAMAI SAMURIWO and YVONNE SAMURIWO and TINASHE SAMURIWO and A.CHITAUNHIKE (as executor testamentary) NO and THE MASTER OF THE HIGH COURT NO Ruled By: MAWADZE J

HB154-11 : NATIONAL BLANKETS LIMITED vs DAVID WHITEHEAD TEXTILES LIMITED Ruled By: KAMOCHA J

HH212-14 : SUSAN TAURAI MAPUNDE DUBE NO (In her capacity as the Executrix Dative Estate Late Daniel Dube) vs ROBERT MATOKA and THE REGISTRAR OF DEEDS and THE MASTER OF THE HIGH COURT Ruled By: MAWADZE J

HB196-11 : MOVEMENT FOR DEMOCRATIC CHANGE and PRISCILA MISIHAIRAMBWI-MUSHONGA vs PROFESSOR ARTHUR MUTAMBARA Ruled By: KAMOCHA J

HH295-14 : SURFACE INVESTMENTS (PRIVATE) LIMITED vs MAURICE CHINYANI Ruled By: DUBE J

HH315-14 : TECLA KAMBARAMI vs PETER MAJONGWE and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF HARARE Ruled By: DUBE J

HB107-14 : SITHEMBINKOSI DUBE vs SIMANGELE DUBE and RING DUBE and THE ASSISTANT MASTER N.O. Ruled By: MOYO J

CC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

SC08-13 : NOBILITY DIMBI vs RONWEN INVESTMENT (PVT) LTD Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC19-16 : PATRICIA DARANGWA N. O. (Capacity as Executrix Dative of Estate Late Juliet Munjeri) vs ELLA MUNJERI and OLIVER NAKOMA (Capacity as Executor Dative of Estate Late Bookwet Munjeri) and OTHERS Ruled By: UCHENA JA

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL Ruled By: BHUNU J

HH95-17 : THOMAS PASI vs WONDER MUSHURE and LINDA MADZIVAIDZE N.O. [Executrix Dative Estate Taurayi Madzivaidze] and LINDA MADZIVAIDZE and THE REGISTRAR OF DEEDS N.O. and MASTER OF THE HIGH COURT N.O. Ruled By: MAFUSIRE J

HH51-15 : JUSTIN MUPAMHANGA vs SAUL GOMWE and JUSTICE DHLIWAYO and BLESSING DOMBOJENA and MINISTER OF LAND AND RURAL RESETTLEMENT (N.O) Ruled By: MAKONI J

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING Ruled By: MAKONI J

HH747-15 : BARRY JAMES WARWICK vs MERCY JONGA Ruled By: MATHONSI J

HH85-15 : CROWHILL COMPANY (PVT) LTD vs CYNTHIA MAADZA and THE ZIMBABWE WAR VETERANS ASSOCIATION Ruled By: MUREMBA J

HB136-16 : ZAMBUKO APOSTOLIC CHURCH and ONISIMUS TAKAVADIYI vs EUNICE MLAUZI and CITY OF BULAWAYO Ruled By: MATHONSI J

Appealed SC05-18 : JENNIFER BROOKER and ADRIENNE PIERCE vs RICHARD MUDHANDA and THE REGISTRAR OF DEEDS Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

Appealed SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

View Appeal HH394-16 : TRACEY LEIGH MACKINTOSH (nee PARKINSON) vs ANTONY WILLIAM McDONALD MACKINTOSH Ruled By: MWAYERA J

View Appeal HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE Ruled By: DUBE J

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS Ruled By: DUBE J

HB149-16 : MUNATSI SHOKO vs OLD MUTUAL ZIMBABWE LIMITED Ruled By: MOYO J

Appealed HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: MAFUSIRE J

HB237-16 : PETROS MOYO vs ROBERT NCUBE Ruled By: BERE J and MATHONSI J

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO Ruled By: MATHONSI J

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM Ruled By: MAKONESE J

HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE Ruled By: MAKONI J

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: ZHOU J

HH689-15 : THE SHERIFF OF THE HIGH COURT vs MUNYARADZI MAJONI and PAULINA MAJONI and MANDY M MAJONI and JAMES GUMBI Ruled By: MAFUSIRE J

HH654-14 : JAMES GUMBI vs MANDY MARGARET MAJONI Ruled By: CHIGUMBA J

HH13-12 : YVONNE CHISESE vs ALLUVIAL EXPLORATION SERVICES (PRIVATE) LIMITED Ruled By: MAVANGIRA J

Categories

Your Donation.

Law Portal
Zimbabwe