Founding, Opposing, Supporting, Answering Affidavits re: Approach & Rule that a Case Stands or Falls on Founding Affidavit

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

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

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

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

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

(i) Vacate stand 648 Ballantyne Park.

(ii) Remove its cell phone base station.

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

ALTERNATIVELY:

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

(b) Costs of suit.

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

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

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

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

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

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

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

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

"Re: Cellphone Mast in Ballantyne Park

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

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

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

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

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

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

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

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

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

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

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

HH88-09 : ALLIANCE FRANCAISE vs ADRIEN ORFORD and LESLEY ORFORD (T/A ALO ALO RESTAURANT)
Ruled By: PATEL J

The original lease agreement of 2006 was filed of record as Annexure A to the applicant's founding affidavit. In terms of the Second Clause, the lease “shall continue to run for the term or period of 36 months on and up to 31st December 2008”. The Third Clause stipulated the monthly rent for the first 12 ...

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

In his heads of argument, counsel for the second respondent (City of Harare) took issue with the date on the Power of Attorney that was prepared in respect of the transfer to Agro Chem. This averment, which is evidentiary in nature, is made as a submission in the heads of argument. If indeed there was issue to ...

SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

This is an appeal from a judgment of the High Court given on 9 March 2006 dismissing with costs an application for an order compelling the first respondent to transfer Stand 151 of Plot 216 of Good Hope Township of Good Hope into the appellant's name in terms of an agreement of sale entered into ...

The appellant and the late Robert Mubayiwa Marere (“the deceased”) entered into a written contract on 30 October 1998 in terms of which the latter agreed to sell and the former agreed to purchase Stand 151 of Plot 216 of Good Hope Township of Good Hope (“the property”) for $230,000=.

The parties provided for two alternative methods of payment of the purchase price under Clauses 12 and 7. Under Clause 12, they agreed that the purchase price would be paid as follows:

“1. The sum of $50,000= (fifty thousand dollars) to be paid to ERS REALTY'S TRUST ACCOUNT on signing of this Agreement of Sale.

2. The balance of $180,000= (one hundred and eighty thousand dollars) to be paid at the rate of $30,000= (thirty thousand dollars) per month commencing on the 1st of July 1998 with interest at the rate of 25% effected if the purchaser does not meet the deadline of 30 December 1998.”

Under Clause 7, headed “TRANSFER”, the parties agreed that:

“Transfer shall be effected by the seller's conveyancers and the purchaser shall, within a period of fourteen days, pay or furnish a Bank or Building Society guarantee for payment of the purchase price against transfer. If such payment or guarantee shall not be furnished to the seller's conveyancers the purchase price shall bear interest at 19% per annum from the expiry of such period of fourteen (14) days until transfer shall be effected.”

The details of payment provided for under Clause 7 are so different from those under Clause 12 that an inference must be drawn, as a matter of construction from the terms used, that the parties intended that the appellant would have to decide which of the two methods of payment to follow and be bound by the terms.

Under Clause 10, the parties agreed that in the event of the purchaser failing to pay any sum owing under the agreement on the due date or in the event of any breach of any other condition of the agreement, the seller had to give the purchaser written notice to remedy the breach within fourteen days of the posting of such notice failing which the seller would be entitled to cancel and terminate the agreement of sale, or, alternatively, have the option to institute legal proceedings against the purchaser for the balance of the purchase price then owing under the agreement.

Lastly, they agreed, under Clause 11, that the agreement of sale constituted the entire contract between them and no variation of it would be valid unless reduced to writing and signed by or on behalf of the parties.

No payment of the sum of $50,000 was made by the appellant on signing of the agreement on 30 October 1998 in terms of Clause 12(1) of the contract. An amount of $50,000 had been paid to ERS Realty on 21 May 1998. The receipt states that the money was paid as a deposit of the purchase price in respect of Stand 21G of Lot 216 of Good Hope Township.

Counsel for the appellant argued, on appeal, that Stand 21G of Lot 216 was in fact the same as Stand 151 of Lot 216 of Good Hope Township.

Whilst that may be the case there was nothing said by the appellant in the founding affidavit to support the contention. Similarly, the founding affidavit was silent as to whether Stand 21G of Lot 216 of Good Hope Township in respect of the purchase price of which an instalment of $3,000 was paid to ERS Realty on 31 July 1998 was the same as Stand 151 of Lot 216 of Good Hope Township.

Five receipts of payments of $30,000 made by the appellant to Messrs Manase & Manase, a firm of legal practitioners appointed as the seller's conveyancers, were annexed to the founding affidavit. The payments were all made between 31 March and 12 October 1999. Each receipt states that the payment was a deposit for a purchase price for an unidentified piece of land. The payment is said to be to the credit of an entity called NYIKA Engineering.

Counsel for the appellant suggested, in argument on appeal, that NYIKA Engineering was a company owned by the deceased.

There was no reference to NYIKA Engineering in the founding affidavit.

HH66-12 : OTILIAH ZULU vs EZRA ZULU
Ruled By: MAWADZE J

The explanation given for the default by the applicant is not clear in her founding affidavit. In fact, in her founding affidavit, the applicant did not see it fit and proper to give any reason as to why the order granted by CHITAKUNYE J should be rescinded. The applicant had only this to say: “The exact details ...

“The exact details of the order I seek will be expressed in the affidavit that has been deposed to by my attorney, Bruce Mujeyi. I incorporate the contents of his affidavit as is specifically traversed herein.”

The applicant, in her wisdom, decided to shy away from proffering any explanation to her default in her founding affidavit which is crucial to her case. In other words, the applicant gave no explanation as to what she did about this case after she instructed her attorneys to enter an appearance to defend on 25 February 2011 until four months later, on 13 June 2011, when she filed an application for rescission of the order granted in default. It is not clear whether she was, during that period, in Zimbabwe or not. She does not explain again if she communicated with her attorneys, and, if so, how she did that. The applicant does not explain if indeed she gave her attorneys any instructions to file a plea to the plaintiff's claim. All these questions are not answered in Mr Mujeyi's supporting affidavit which the applicant seeks to rely upon. It is therefore clear to my mind that the applicant had not, in her founding affidavit, given any explanation for the default save to leave matters in the hands of her erstwhile legal practitioners….,.

The applicant only made a bald and un-substantiated assertion that the division of the matrimonial estate was unfair and unjust without explaining how with specific reference to Annexure B. These omissions in the applicant's founding affidavit are fatal as such averments are crucial as her application is premised within the four corners of the founding affidavit.

There is therefore nothing in the applicant's founding affidavit to show that the matrimonial estate was not justly and equitably shared taking into account the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13].

HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI
Ruled By: KAMOCHA J

On 14 May 2008 Sarah Mlangeni applied for and was granted an order in the following terms: “It is ordered that:- 1. The defendant's plea be and is hereby struck off. 2. Plaintiff be and is hereby granted leave to set this matter down on the unopposed roll. 3. Defendant be and is hereby ordered to pay today's costs.” The order was granted ...

On 14 May 2008 Sarah Mlangeni applied for and was granted an order in the following terms:

“It is ordered that:-

1. The defendant's plea be and is hereby struck off.

2. Plaintiff be and is hereby granted leave to set this matter down on the unopposed roll.

3. Defendant be and is hereby ordered to pay today's costs.”

The order was granted after Treziah Ndlovu, the applicant in this case, who was the defendant in the main case, and her legal practitioners had failed to attend a pre-trial conference after proper service of the notice to attend the pretrial conference was effected on them.

Following the above order, Sarah Mlangeni (herein referred to as “Sarah”), on 26 June 2008, sought and was granted a default judgment in these terms:

“It is ordered that:-

Judgment be and is hereby entered in favour of the plaintiff in the following terms;

1. Defendant be and is hereby ordered to deliver to applicant 27 heads (sic) of cattle together with their progeny failing which the Deputy Sheriff, Bulawayo be and is hereby authorized and directed to seize same and deliver to plaintiff.

2. Defendant to pay the costs.

Alternatively

3. Judgment be and is hereby granted to plaintiff against defendant in the sum of $54 trillion together with costs and interest thereon from the date of judgment.”

The genesis of this matter is briefly the following.

On 2 August 2006, Sarah Mlangeni issued summons out of this court claiming delivery of 27 heads of cattle together with its progeny which the defendant, Treziah Ndlovu (“Treziah”) had allegedly registered in her name fraudulently and still had them in her possession.

Alternatively, she claimed payment of the sum of $1,620,000,000 Zimbabwe dollars being the value of the plaintiff's cattle unlawfully appropriated by the defendant plus interest thereon from January 1999 at the prescribed rate.

The defendant had to meet the costs of suit.

In her declaration, the plaintiff alleged that sometime in the 1940s she had inherited a number of cattle from her grandmother, Hubayi Gumbo. She, at some stage, entered into an agreement of loan with Juqu Ndlovu of the said cattle under the customs and usages of the Ndebele people known in Sindebele as “amasiso”. She and the late Juqu Ndlovu enjoyed a cordial relationship and she would from time to time receive proceeds of sale of cattle from Juqu after instructions to sell by her. Juqu Ndlovu was the husband of the defendant. She averred that she kept on visiting Jugu Ndlovu's homestead in order to see him and her cattle and sold some of them from time to time and gave him some money thanking him for keeping the cattle for her. The defendant had always known about the arrangement.

Trouble started after the death of Juqu Ndlovu in 1987. The plaintiff made several visits to the defendant's homestead with a view to make new arrangements about the “amasiso” cattle but got no joy.

In the 1990s she went to the defendant's homestead to claim the “amasiso” cattle without success. Initially, the defendant told her that her children were not available, she therefore could not release the cattle in their absence. She would give the plaintiff a new date on which to return but each time she returned the defendant would have one excuse after the other for not releasing the cattle.

While that was happening the defendant registered the cattle into her own name in the year 1996. The plaintiff claimed that her cattle were 27 in number when she instituted proceedings in the Customary Law Court in 1999. The matter has been in the courts ever since and has ended up in this court.

In her plea the defendant had this to say.

She denied that the plaintiff inherited any cattle from Hubayi Gumbo in the 1940s. She went on to deny that her late husband had entered into the “amasiso” agreement with the plaintiff. She further denied that the plaintiff used to go to sell some cattle from time to time and thanking her husband by giving him money as a sign of gratitude for keeping the cattle. She in fact denied being aware of such an arrangement and averred that the arrangement never existed at any stage.

She flatly denied ever fraudulently registering the plaintiff's cattle into her name and averred that the cattle transferred from her husband's stock card into her name were hers. She accordingly denied ever possessing the plaintiff's cattle.

It was her story that if the cattle were brought to her late husband in the 1940s that was long before she got married to him in 1959. She was not yet a daughter-in-law of the Juqu Ndlovu family. She therefore could not be called to account for the cattle which she never had possession of.

In her plea, she merely claimed ownership of cattle that were transferred from her late husband's stock card into her name without stating how she had acquired them. It was only in her summary of evidence that she mentioned that the cattle she currently had were acquired through the sale of grain. This was a material point in her case as the plaintiff was alleging that those were “amasiso” cattle.

The defendant should have raised that point in her plea. Mentioning that material point belatedly seems to suggest that it was an after-thought.

SC17-09 : ELIZABETH MUTIZHE vs LOVENESS GANDA and THE REGISTRAR OF DEEDS and FANNIE MUTIZHE
Ruled By: MALABA DCJ

In Chambers in terms of Rule 31 of the Rules of the Supreme Court (“the Rules”).

This is an application for an extension of time in which to note an appeal against the whole judgment of the High Court given on 27 February 2008.

The applicant and the third respondent were married to each other until the High Court granted him a decree of divorce on 22 February 2005 in case no. HC8877/03. The High Court made an order with regard to the division of the assets of the spouses.

Of relevance to the determination of this application is the fact that the third respondent was awarded 80% of the market value of the matrimonial house situated at Stand No.2711 Mahogany Circle, New Marlborough, Harare (“the property”). The applicant was awarded 20% of the market value of the matrimonial house.

The order further directed that:

“5. If the parties cannot agree on the value of the matrimonial home within ten (10) days of the date of this order, the property is to be evaluated within 30 days thereafter by a registered firm of Estate Agency agreed upon by the parties legal practitioners or failing such agreement by an Estate Agent nominated by the Registrar of this Court.

6. The cost of evaluation are to be borne by both parties in equal shares.

7. The plaintiff shall pay to the defendant on or before the 1st of November 2005, 20% of the net value of the property.

8. Failing compliance with the provisions of clause 7 above, the matrimonial home shall be sold on the open market to the best advantage and the net proceeds therefrom to be shared between the parties as set out in the paragraph above.”

On 16 June 2004, the applicant had obtained, from the High Court, an interdict prohibiting the second respondent from registering transfer of the property without her prior written consent.

On 11 August 2005, the first respondent entered into an agreement of sale with the third respondent in terms of which he sold and she purchased the property for $750,000,000. She paid the purchase price to the third respondent's conveyancers.

At the time she entered into the agreement of sale, the first respondent was not aware of the court order awarding the applicant 20% of the value of the property.

When she subsequently got to know of the order, she raised the question of its possible effects on the sale of the property. The third respondent assured her that the order would not affect transfer of the property into her name provided the applicant was paid the 20% share of the value of the property.

Upon request by the third respondent, she authorized the release of $150,000,000, which was 20% of the purchase price, into his bank account for payment to the applicant.

The applicant confirmed, in the founding affidavit, that an amount of $149,000,000 was paid into her bank account.

After the payment of the purchase price by the first respondent, the applicant instituted an appeal against the order of the High Court.

A perusal of the record in case no. HC8877/03 shows that the appeal had been noted out of time.

It appears that there was an application for an extension of time in which to note the appeal which was granted.

The Notice of Appeal, however, remained fatally defective for non-compliance with Rule 29(1)(d) of the Supreme Court Rules. Under the heading 'Grounds of Appeal' it is stated as follows:

“1. With new evidence before the court, the court a quo's apportionment of shares in the matrimonial house called House No.2711 Mahogany Circle, New Marlborough, Harare is amendable.

2. Without all evidence, the court a quo failed to award Stand 6839 Borrowdale.”

By no stretch of imagination can it be said that what is stated constitutes grounds of appeal against the order given by the court a quo on 22 February 2005 in case no. HC8877/03?

In light of the appeal which the applicant had purported to institute, the third respondent sought to cancel the Agreement of Sale.

The first respondent rejected the cancellation and commenced action in case HC1545/06 claiming an order against the third respondent of specific performance of his obligation to transfer the property into her name. She also claimed an order of upliftment of the caveat of 16 June 2004 and eviction of the applicant and all those claiming the right of occupation of the property through her.

The third respondent did not appear at the trial to oppose the claim. A default judgment was entered against him. That had the effect of confirming the third respondent's right to transfer of the property.

The court a quo found that the first respondent had adduced sufficient evidence to establish her entitlement to an order of upliftment of the bar. It granted the order. The decision took into account the fact that the applicant had not adduced evidence in opposition of the granting of the order.

The applicant had defended the claim on the ground that the order of 22 February 2005 gave her a real right in the property.

The court held that her right was to have 20% of the proceeds of the sale of the house. It held that the right was enforceable against the third respondent and could not operate to defeat the transfer of the property to the first respondent in terms of the Agreement of Sale.

The judgment was given on 27 February 2008.

The Registrar had given notice to the parties, through the roll of the court relating to unopposed matters for that day, that the judgment was to be handed down.

Whilst the legal representative of the first respondent attended court to note the handing down of the judgment; neither the applicant nor her legal practitioner attended.

No appeal was instituted against the judgment within fifteen (15) days as is required by Rule 30(a) of the Supreme Court Rules.

The applicant averred, in the founding affidavit, that she had knowledge of the judgment for the first time on 22 August 2008 when a copy of it was served on her by the Deputy Sheriff.

On 26 August she filed a notice of appeal with the Registrar. The document contained all the formalities required by Rule 29 of the Supreme Court Rules to be stated in a Notice of Appeal.

Strict compliance with the mandatory requirements of the provision of Rule 29 suggests that the applicant had read the relevant Rules before noting the appeal.

The Notice of Appeal was, however, fatally defective because it was filed six months after the date the judgment appealed against was given.

Rule 30(a) of the Supreme Court Rules had not been complied with.

No application for condonation of failure to institute the appeal within fifteen (15) days of the date the judgment was given and extension of time in which to appeal was made in terms of Rule 31 of the Supreme Court Rules.

The explanation given by the applicant for non-compliance with the Rules was that she was a self-actor. She said she did not know that she was required to make an application for condonation of non-compliance with Rule 30(a) of the Supreme Court Rules and extension of time in which to appeal.

She said she did not know that the Notice of Appeal was defective.

On 13 November 2008, the first respondent's legal practitioners wrote to the Registrar drawing her attention to the defective Notice of Appeal. The letter was copied to the applicant.

Notwithstanding the fact that the letter made it clear that the effect of the defective Notice was that there was no appeal against the judgment, the applicant did not act to regularize the situation.

On 25 November 2008, the Registrar wrote to the first respondent's legal practitioners accepting the contention that there was no appeal against the judgment of the High Court given on 27 February 2008. The letter was copied to the applicant.

She did not act immediately to secure compliance with the Rules of Court. It was sixteen (16) days later that the applicant made an application for extension of time in which to appeal.

The explanation for failure to act, after having been made aware of the defective Notice of Appeal and consequences thereof was again that the applicant was a self actor. She pleaded ignorance of the requirements of Rule 31 of the Supreme Court Rules.

The factors a court has to consider in the determination of an application for condonation and extension of time in which to appeal have been stated in numerous decisions of this Court and the High Court.

In Maheya v Independent African Church SC58-07, it is stated…, that:

“In considering application for condonation of non-compliance with its Rules, the court has a discretion, which it has to exercise judicially, in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are:

(i) The degree of non-compliance;

(ii) The explanation therefor;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) Avoidance of unnecessary delays in the administration of justice.”

See De Kuszab Dabrowski Uxor v Steel N.O. 1966 RLR 60 (A)…,; Bishi v Secretary for Education 1989 (2) ZLR 240 (H)…,; Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S).

The period of time marking the delay by the applicant in taking steps to note a valid appeal is nine months. The right to appeal is now dependent on the exercise of the court's discretion.

The application was made on 8 December 2008. The inordinate delay may be divided into three parts:

(i) The first part extended from 27 February to 26 August 2008.

(ii) The second extended from 27 August to 25 November.

(iii) The last part extended from 26 November to 7 December 2008.

The applicant gave different explanations for her inaction during each of the three periods of delay:

(i) In relation to the first period of delay, she said that she had no knowledge that the judgment had been given on 27 February.

(ii) In respect of her inaction in the second part of the period of delay, she said, as a self-actor, she was not aware of the requirements of Rule 30(a) of the Supreme Court Rules. She said she was also not aware of the provisions of Rule 31 of the Supreme Court Rules providing a remedy to a party who would have failed to exercise the right to appeal against a judgment of the High Court timeously.

(iii) She had no explanation for her inaction during the last part of the period of delay.

Is the explanation of the delay reasonable?...,.

In Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…, GUBBAY CJ cited with approval from Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) where…, MULLER JA said:

“Where there has been a flagrant breach of the Rules of this Court in more than one respect, and where, in addition, there is no reasonable explanation for some periods of delay, and, indeed, in respect of other periods of delay, no explanation at all, the application should not be granted whatever the prospects of success may be.”

As I am unable, in this case, to go so far as to hold that the applicant was in flagrant breach of the Rules of this Court, I have considered the question whether there are good prospects of the appeal succeeding despite the finding that there is no reasonable explanation for the inordinate delay in making the application for extension of time in which to appeal.

The grounds of appeal were stated as being that:

“1. The court a quo erred at law and in fact in failing to uphold that the appellant's appeal in HC8877/03 had an effect of suspending the whole judgment of the High Court in the divorce proceedings.

2. The court a quo erred in fact and at law by holding that the appellant had no real rights over the disputed property known as Stand 2711 Marlborough Township of Stand 2575 Marlborough Township.

3. The court a quo misdirected itself by failing to regard the appellant's evidence that the interdict obtained by the appellant on 16 June 2004 had an effect of interdicting any transfer of the disputed property pending the determination of the appeal in case no. HC8877/03.

4. The court a quo erred in fact and at law by failing to uphold that the cancellation of the agreement of sale by the third respondent was valid and lawful.”

One looks at the founding affidavit for evidence of the facts stated as grounds of appeal.

Considering these facts together with the reasons for the judgment appealed against and applying the relevant law, one can decide whether there are good prospects of success on appeal.

All that is stated in the founding affidavit on the grounds of appeal is this: the applicant said:

“20. I strongly believe that there are prospects of success on appeal. I say so because -

1. As appears from the Notice of Appeal, I insist that there was a valid and lawful cancellation of the Agreement of Sale.

2. I was also not satisfied by the court's ruling that the issue between me and the first respondent was whether or not I had a real right to the property.

3. For instance, if the Appeal Court in case no. HC8877/03 were to up my share from the 20% given by the court a quo to a higher percentage, this would affect the issues of enforceability of the judgment. This aspect is normally addressed by way of giving one party a time frame within which to pay out the other party of its share failing which that property can be sold and the proceeds are shared.

4. Assuming the transfers were to be done to the so-called innocent buyer, and then the Appeal Court were to up my share, such court order would be difficult to enforce. The house, in a case of this nature, is a surety that one gets their share.”

Nothing is said in the founding affidavit about the first ground of appeal.

What was stated in the Notice of Appeal against the judgment of 22 February 2005 did not constitute grounds of appeal required under Rule 29(1)(d) of the Rules of the Supreme Court. There would be no valid appeal pending in the Supreme Court against the judgment in case HC8877/03.

In any case, the appeal would not have been instituted against the whole judgment of the court a quo. There was no appeal against the order granting the decree of divorce. The court a quo could not have erred in failing to hold that the appeal suspended the whole judgment in case HC8877/03 when in fact the appeal could not have had that effect.

It is clear from the founding affidavit that the applicant took issue with the fact that the court a quo perceived the question in dispute between her and the first respondent as having been whether she had real rights in the property.

Contrary to the contention advanced in argument on her behalf by counsel, the applicant was not even claiming that the order of the court in case HC8877/03 gave her real rights in the property.

She did not challenge the fact that the right she was given was 20% of the share of the value of the house. Her view was that 20% of the value of the property was too low.

These facts do not render any support to Ground No.2 of the defective Notice of Appeal.

The law is to the effect that the person in whose name immovable property is registered is prima facie its owner.

The order of the court a quo did not alter the fact, that, as the third respondent was the person in whose name the house was registered, he was the sole holder of the real rights in it.

It must be borne in mind that the rights of spouses in the division, apportionment or distribution of assets upon dissolution of marriage, are dependent upon discretionary remedies.

In this case, in the exercise of the broad discretion conferred on it, the court, in case HC8877/03, gave the applicant a right to 20% of the value of the property as opposed to 20% share of the real rights in the property. It was not a share in a joint ownership of the house.

The third respondent could sell the property to a third party without the consent of the applicant
provided he paid her 20% of the proceeds.

That right did not give her power to veto the exercise by him of the right to dispose of all the real rights he alone held in the house as long as the sale met the conditions prescribed by the order.

There is no basis in fact on which the allegation in Ground No.2 of the defective Notice of Appeal could be established.

On the third ground, the interdict did not in fact have the effect the court a quo was accused of having disregarded. It preceded the judgment in HC8877/03 and did not interdict transfer of the property pending determination of the appeal against that judgment. What the interdict prohibited was the registration of transfer of the property without prior written consent of the applicant. In other words, the interdict would have given the applicant an absolute right to veto the transfer of the property even when the subsequent order gave her the right to 20% of value of the property with no power to veto the sale of the property to best advantage.

So, even if the applicant adduced evidence, it would not prove that the interdict had the effect of prohibiting transfer of the property pending the determination of the appeal in case no. HC8877/03….,

Nothing of substance was said in the founding affidavit on Ground No.4..

Cancellation of a contract is lawful when it is in accordance with the terms and conditions of the contract between the parties. It is also lawful where there has been a repudiation of the contract which is accepted by the innocent party as a breach relieving him from future performance of his obligations, otherwise the innocent party has a right to elect to accept or reject the unilateral act by the other party to try and bring a contract to an end. If he rejects the repudiation as a breach of contract, the innocent party can hold the other party to his side of the bargain provided he discharges his own obligations under the contract.

The court a quo found that the third respondent had not shown that the cancellation was in terms of the Agreement of Sale. It accepted the evidence of the fact that the first respondent had elected to reject the cancellation of the contract by the third respondent as a breach. The first respondent was found to have held the third respondent to his side of the bargain.

The applicant did not place before me facts on the basis of which a determination could be made to the effect that there were good prospects of Ground No.4 succeeding on appeal.

HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy. On 21 December 2006, and before the pre-trial conference, the plaintiff amended ...

On 21 December 2006, and before the pre-trial conference, the plaintiff amended its claim by the addition of paragraph 10 which is a claim for consequential damages in the sum of $100,000,000= being the replacement value of the vehicle.

The first defendant pleaded that it first acted as the second defendant's agent and its obligation ended as soon as the policy was in place and that the premium had not been paid at the time of the accident hence the policy was revoked.

The second defendant, in its plea, pleaded ignorance of the policy and put the plaintiff to the proof thereof.

At the commencement of the trial, the second defendant applied for, and was granted an amendment to its plea. The amendment was a withdrawal of the initial plea and its substitution with a plea to the effect that;

1. The first defendant, as agent of plaintiff, entered into an agreement with the second defendant that the plaintiff should pay the insurance policy premium of $3,524=26 in equal installments over a period of 3 months as from 25 February 2004.

2. That the plaintiff did not comply with this agreement, and, as at the date of the accident the plaintiff had not performed its obligations to pay the instalments.

3. In any event, the plaintiff is covered for a total of $60,000= in terms of the policy and is contractually precluded from claiming more.

The plaintiff gave evidence through its Managing Director, Mr. Zisengwe. Mr. Gideon Muchakwa gave evidence for the first defendant after which Mr. Moses T. Chakaringa and Mr. Member Murasiranwa gave evidence for the second defendant.

From the evidence adduced in court the following are common cause.

The plaintiff entered into an insurance contract with the second defendant. This was done through the first defendant who acted as broker. The premium was put at $3,524,259=. The insured value was put at $60,000,000= (old currency). On 10 February 2004, the plaintiff paid $200= (revalued) towards the premium. The plaintiff was then issued with a policy document dated 18 February 2004. The period of insurance was stated as 'From 10/02/ 04 to 31/01/05 (both dates inclusive)'.

On 23 March 2004 the motor vehicle so insured was involved in an accident and was declared a write off. As at the time of the accident, the plaintiff had not paid the balance of the premium. Such balance was only paid on 7 April 2004 to the first defendant. When the plaintiff attempted to make a claim on the policy the second defendant refused to honor the claim on the basis that the plaintiff had not paid the premium as per policy.

The testimony by Mr. Zisengwe was to the effect that the plaintiff had been asked to pay the premium in three months. It was never stated that the instalments had to be equal. At the time of the accident the three months period had not lapsed. When the accident occurred the plaintiff was asked to pay the balance in order that its claim can be sent to the second defendant - and it did so. In this regard he tendered two receipts as exhibits 1 and 2 for the payments.

The first defendant's evidence, on the other hand, was to the effect that when Mrs. Zisengwe came to insure the plaintiff's motor vehicle she was told the premium that had to be paid. As she did not have the full amount she was allowed to pay $200= on her undertaking to pay the balance in two weeks time. She was warned of the consequences of not paying the full premium. After failing to pay within that period the first defendant extended the period to three (3) months. According to Mr Muchakwa, this extension was at the plaintiff's risk.

At the pre-trial conference, the issues were viewed as;

“1. The interpretation of clause 1 of the contractual document. It being admitted that plaintiff paid its premium on 25 February 2004; and

2. The quantum of damages.”

After hearing evidence from the witnesses, it was apparent that the parties were not agreed that the premium was paid on 25 February, 2004. The receipts tendered showed the initial payment was on 10 February 2004 and the second payment was on 7 April 2004.

The main issues would thus be;

1. Whether or not the plaintiff had paid the premium in terms of the policy;

2. Whether or not the defendants are liable to the plaintiff as per claim;

3. Whether or not the plaintiff is entitled to payment of the sum of $100,000,000= in respect of its claim for the loss of its motor vehicle in terms of the policy agreement; and

4. Who between the defendants is liable to pay the plaintiff....,.

In his closing submissions, the plaintiff's legal practitioner argued that it is not unheard of that even where a party is contractually bound to perform certain obligations, should he do so negligently the wronged party may sue both in contract and in delict.

Unfortunately, counsel could not cite any authority in support of this, and, in any case, the suit here was in contract and not delict. The nature of the amendment did not change the nature of the suit at all.

Nowhere in the amendment is there any allegation of negligence on the part of the defendants.

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues....,.

In his second procedural issue, counsel for the respondents raised the issue of the applicants not having filed an answering affidavit.

He submitted that, that means the applicants have accepted the respondents averments in the opposing affidavit.

Counsel for the applicants response was that most of the issues had already been put in contention by the applicants founding affidavit deposed to by Tendai Biti.

That may be so in respect of the delay and aspects related to it. It is however not correct in respect of the reason for the delay averred to in CHIWESHE J's opposing affidavit.

CHIWESHE J said the delay is due to the Zimbabwe Electoral Commission (ZEC) having received complaints about miscounting and is considering the evidence for it to decide whether or not to order a recount of the Presidential votes before announcing the results.

The failure to file an answering affidavit disputing that fact means the fact that complaints have been received is not in dispute. However, the legality of the re-count can still be challenged as it is a matter of law.

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were;

(i) Whether or not the petition was served on time;

(ii) Whether there was proper service on the second respondent;

(iii) Whether security for costs was provided; and

(iv) Whether or not the second respondent was properly joined to the petition.

At the hearing, on noticing that the petition had been lodged with the Registrar of this Court on 15 April 2008, I raised the further issue of whether it was presented within the time limits set out in section 168(2) of the Electoral Act [Chapter 2:13], hereinafter called the Act.

The brief facts were these:

Tsitsi Veronica Muzenda, the petitioner, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) party, stood as a Senatorial candidate for the Gweru-Chirumanzu senatorial constituency during the harmonized elections held in Zimbabwe on 29 March 2008. She competed for office with Patrick Kombayi, the first respondent, of the Movement for Democratic Change-Tsvangirai party MDC-T. The election was run and conducted by the Zimbabwe Electoral Commission, the second respondent.

The petitioner became aware that the first respondent had won the seat on 5 April 2008 and filed the petition on 15 April 2008.

It was served on 6 May 2008, by the Deputy Sheriff, at Harvest House, the headquarters of the first respondent's political party. The return of service indicates that a court application was served on one Muzuva, a security officer, who accepted service on behalf of the first respondent.

Another copy was served on the second respondent at its place of business on the same day.

The petition did not show that security for costs had been furnished. The first respondent was not served with any recognizance.

Counsel for the petitioner was to advise the Court, from the bar, in argument, that the security for costs was paid in the sum set by the Registrar, and, out of an abundance of caution, recognizance entered at the same time on 23 April 2008.

The first respondent received the petition on 19 May 2008.

The petitioner provided minimal facts of the events that triggered the application. She did not provide the date on which the first respondent was declared the winner by the Constituency Election Officer in terms of section 66(1) of the Electoral Act. She referred to a recount of votes but did not provide any details on the date it was held and its outcome. Some of the facts that appear in her heads of argument were not pleaded in her founding affidavit.

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.2. Whether the failure to file security for costs timeously renders ...

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:

1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.

2. Whether the failure to file security for costs timeously renders the petition void.

3. Whether the first respondent was properly joined as a party.

THE FACTS

The brief facts in this matter are as follows:

On 29 March 2008, the harmonized Presidential, Parliamentary and Council elections were held in Zimbabwe. Hillary Simbarashe, the petitioner, stood as an independent candidate for the House of Assembly seat in the Mutoko North constituency. The elections were run and conducted by the Zimbabwe Electoral Commission, the first respondent. Mabel Chinomona, the second respondent, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) was one of the candidates who battled it out with the petitioner. On 31 March 2008, she was declared the winner.

The petitioner was unhappy with the pre-election and post-election environment as well as the manner in which the election was conducted. Accordingly, he lodged the present petition with the Registrar on 16 April 2008.

The date of service was not disclosed, but, the second respondent filed her opposing papers on 15 May 2008. She, amongst other things, raised the first two preliminary issues referred for trial.

The first respondent opposed the petition on the basis of misjoinder, hence the third issue.

When I set down the matter for hearing, I directed the parties to furnish me, at the hearing, with information from the Zimbabwe Electoral Commission indicating the date on which the result in the last constituency for election to the House of Assembly was announced by the Constituency Election Officer for that constituency.

This was not done.

I, however, proceeded to hear the matter on the understanding that I would deliver this judgment after that information had been availed. It was only provided by counsel for the first respondent in the morning of 6 June 2008.

He produced a document which has three columns. The first column indicates the province in which the House of Assembly seat is found, the second indicates the constituency, and the last the date on which the V23 Form was signed by the Constituency Elections Officer. The signature is appended on the date on which the Constituency Elections Officer declares the winning candidate. The last V23 Form was signed on 4 April 2008 for the Kariba constituency.

The parties were therefore agreed that the declaration of the result in the last constituency was made on 4 April 2008....,.

Counsel for the second respondent submitted that the petitioner is non-suited for lodging the petition outside the 14-day period. He computed the period from 31 March 2008, the date on which the second respondent was declared the winner.

Counsel for the petitioner, on the other hand, contended that the petition was not filed out of time.

He contended, in his heads of argument, that the second respondent had not shown that the result of the election had been notified in terms of the Electoral Act [Chapter 2:13] hereinafter referred to as the Act. He based this argument on the provisions of section 67 and 68 of the Electoral Act.

In his view, the effect of these provisions is to establish the date on which the winner is officially declared as such in an election of this kind.

This argument was made despite the petitioner's averment, in his founding affidavit, that the second respondent was duly declared the winner on 31 March 2008.

Clearly, on the basis of this averment, his line of argument was unsustainable.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

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

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

2….,.

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

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

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

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

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place....,.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found…, that I do not believe his testimony in ...

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town. In June 2007, the plaintiff consulted the defendant complaining of sensitivity to ...

In June 2007, the plaintiff consulted the defendant complaining of sensitivity to his teeth. She examined him at the police hospital and later invited him to her surgery where she carried out some work on him. The work entailed extracting a tooth that was embedded in his gum. The extraction was not successful and she referred him to Professor Chidzonga, a specialist in the field, who finally extracted the tooth and also found out that, in the process, the plaintiff had suffered a fractured jaw. When the plaintiff's superiors visited him at his house, a decision was made that he be flown to South Africa for further management and treatment. He was duly attended to in South Africa and the fracture was reduced.

On 24 January 2008 the plaintiff issued summons out of this court against the defendant. He alleged that she had been negligent and had caused the fracture in his jaw. He claimed against her the sums of R10,000= for pain and suffering, R10,000= for loss of comfort and R78,000= as special damages.

The suit was defended.

In her plea, the defendant denied that she was negligent as alleged or at all. She further denied knowledge of the injury sustained by the plaintiff, and, in particular, that she fractured his jaw and suggested that this occurred at Professor Chidzonga's surgery where the tooth was extracted.

At the pre-trial conference of this matter, the parties settled the issues for trial as follows:

1. Whether or not the defendant undertook to perform surgery on the plaintiff with such professional skill as is reasonable for a qualified dentist?

2. Whether or not the defendant carried out the surgery on the plaintiff negligently as alleged by the plaintiff?

3. Whether or not the plaintiff suffered damages as a result of the defendant's negligence, and, if so, the quantum thereof.

At the trial of the matter, the plaintiff gave evidence. His evidence was as follows.

In early 2007, he visited the Police Camp Hospital. He was complaining of sensitivity in his teeth. He sought professional assistance from the defendant. She advised him that he required a dental cleaning session and that she needed to examine the exposed roots of his teeth. On the first visit, she applied some medication to his gums. She did not have adequate equipment at the hospital and could offer him treatment at her surgery. He accepted the offer. A week later he visited her surgery and she requested him to have an x-ray. A week later she called him and advised him that she had discovered a buried molar on the right side of his mouth. The tooth had to be extracted. On 26 June, he attended at her surgery for the tooth to be extracted. After taking him through the process, the defendant attempted to extract the tooth using a variety of tools. After some time he grew tired and was also in pain. She advised him that she had almost exposed the tooth. He then felt a sharp pain and told her to stop. He had been on her chair for two and a half hours. She advised him that he now required theater and she would refer him to Professor Chidzonga. She telephoned Professor Chidzonga's surgery and explained to them what she had already done. She wrote him a letter of referral and he left her surgery. He could feel that his jaw was heavy. It was painful.

At Professor Chidzonga's place he was taken into the consulting room, and, by that time, he could not talk. Professor Chidzonga took a small x-ray of the area. He then extracted the tooth in about 20 minutes. He suspected that the plaintiff had fractured his jaw. He could not develop the xray at that time and allowed the plaintiff to go home on a prescription for a mouth wash, a pain killer, and some antibiotics.

As he was driving home, he sent a message on his mobile phone advising the defendant that he was in terrible pain and was suspected of having fractured his jaw. His mouth was now quite heavy and he had to keep on holding his lower jaw. He was also bleeding profusely.

When he reported back to Professor Chidzonga's rooms the following day, the fracture was confirmed. Professor Chidzonga cleaned his mouth and immobilized the jaw. He placed him on a special diet and prescribed more medication.

The Commissioner-General of police visited him at home. At this time his entire face was swollen. He was incoherent. Arrangements were made for him to be flown to South Africa where he was accompanied by his wife.

In South Africa, the wires that had been used by Professor Chidzonga to immobilize his lower jaw were removed and replaced by bracelets. He was placed on a liquidized diet. On 29 July, he returned to the clinic in South Africa where a few of the bands holding his jaw together were removed. He could open his mouth by a fraction and could now use a spoon to eat porridge and yoghurt. In August, all the bands were removed and he was referred for physiotherapy. Around September, he returned to have all the bracelets removed. He was still on physiotherapy. He had to return for reviews in September and December 2007. In January 2008, he attended the final physiotherapy session here in Zimbabwe.

At the time of testifying, he could not chew hard things with his right hand side. He still felt some numbness in the side which he hoped would go away after some time.

The witness then applied to have affidavits by the three medical practitioners who attended to him in South Africa adduced into evidence. Also adduced were various documents, including air tickets from Harare to Johannesburg and invoices for the services rendered him in South Africa.

The witness gave his evidence well. He is fairly articulate. His responses to questions put to him under cross-examination were forthright. He did not seek to exaggerate. It is my finding that the witness was honest and truthful.

The plaintiff called Professor Median Chidzonga. He holds qualifications in dentistry and is a professor in maxillo-facial, oral and dental surgery. He has specialized in facial surgery and has thirty years experience under his belt. His evidence was as follows.

The plaintiff was referred to him by the defendant who wrote a note to him explaining that he should continue with the removal of a wisdom tooth that she had started working on as the plaintiff was now in severe pain.

After sitting the plaintiff in the chair, he took a radiograph of the site and then proceeded to examine him. He saw a socket where an incision had been made. He attempted to remove the tooth and it was during this process that he noticed that the jaw was not moving in unison. He requested the plaintiff to go for an x ray of the jaw. The following day the plaintiff brought back the x-ray and it showed that there was a fracture passing through the socket where he had removed the tooth. He reduced the fracture by wiring. He also obtained the results of the first radiograph he had taken when the plaintiff first visited him. It also showed that there was a fracture. Based on that radiography, he was of the view that the jaw was fractured before he started working on the plaintiff.

He further testified that it is not normal for jaws to be broken during tooth extractions. It is however possible. The possibility of this happening can be assessed through x-rays of the area taken before the extraction.

He was aware that the plaintiff later sought medical attention in South Africa. He was also aware that what was done in South Africa is similar to what he did on the plaintiff in reducing the fracture. The equipment used in South Africa is not available in this country but the expertise is.

Under cross-examination, the witness testified that the breaking of a jaw during a tooth extraction does not, in itself, denote negligence. Each case must depend on its facts. Even where a practitioner exercised all due care, at times, a jaw could still break.

Regarding the plaintiff's subsequent visit to South Africa to seek medical attention, he was of the view that this was not necessary as he could have attended to the plaintiff himself had the deteriorating condition of the plaintiff been brought to his attention.

The evidence of this witness was of great benefit to the court and great reliance shall be placed upon it in the resolution of the matter. He is an expert in his field and I would have been unable to form some of the conclusions I formed in this matter without his expert opinions.

After the evidence of this witness, the plaintiff closed his case.

The defendant testified. She narrated most of the facts that are common cause in this trial as to how the plaintiff approached her for assistance and what she did up to the time she referred the plaintiff to Professor Chidzonga. Regarding the allegation that she was negligent, her evidence was as follows;

The plaintiff's tooth was a difficult one. She did the best that she could to extract it without resorting to surgery. During the process, the plaintiff did not bleed profusely as he alleges. She however was putting water into his mouth during the process.

She was not aware that she had fractured the plaintiff's jaw during the extraction. Had she known, she would have put it in her referral letter to Professor Chidzonga. She only received a report from Professor Chidzonga who stated that, during the time he was extracting the tooth, he felt an abnormal movement to the jaw. She personally did not feel such movement.

The witness also gave her evidence well. Her evidence was, in the main, common cause with that of the plaintiff up to the time the plaintiff left her surgery. I have no reason to disbelieve her.

The defendant also called one Lewis Chidzambwa. He is a Dentist, holding a degree from a university in Finland. He has ten years experience.

The testimony of this witness was of a very general nature. He gave the court his views on what can cause pain to a patient undergoing tooth extraction, how each case is unique, and how fractures can occur in patients.

I found the evidence of this witness to be educative in a very general way.

After this witness was stood down, the defendant closed her case....,.

The plaintiff alleges that the defendant fractured his jaw during a tooth extraction. He further alleges that the fracturing of the jaw was as a result of negligence on the part of the defendant. Finally, the plaintiff alleges that, as a result of the fracture to his jaw, he suffered the various damages whose heads appear in his summons.

The factual issues that fall for determination in this matter present themselves to me as;

(i) Firstly, whether it was the defendant who fractured the plaintiff's jaw; and

(ii) If so, whether such fracturing was as a result of negligence on her part; and, again

(iii) If so, what damages did the plaintiff suffer?

I now turn to the first issue. It is to determine whether the fracture in the plaintiff's jaw was caused by the defendant.

I do not have any direct evidence in answer to this issue. The x-ray that was taken of the tooth area, after the defendant had referred the plaintiff to Professor Chidzonga, was not produced to show whether or not the jaw was fractured before Professor Chidzonga started working on the plaintiff. What was adduced into evidence was a photocopy of the x-ray which did not show anything. The copy of the x–ray was not accompanied by any report explaining the picture, and, as was correctly stated by Professor Chidzonga in his evidence in chief, the photocopy was not useful at all.

The plaintiff was of the firm belief that he suffered the fracture whilst receiving attention from the defendant. He is of this belief because he felt a sharp pain after an hour of drilling and wedging and he stopped the defendant from further proceeding. When he left the defendant's place, he was now holding his lower jaw. He urges me to infer that the sharp pain marked the point when his jaw fractured.

This is a reasonable belief on the part of the plaintiff but it is not the only reasonable inference that one can draw from the facts.

It is common cause that the plaintiff was under a local anesthetic that was now wearing off. The tooth extraction was causing him a lot of pain. The sharp pain could have been pain from the process which would have otherwise been masked by the anesthetic had it been working.

Professor Chidzonga testified that it was during the process of extracting the tooth that he noticed that the jaw was not moving in unison. He did not notice this during the examination of the plaintiff before he commenced the extraction. He then informed the plaintiff that he suspected a fractured jaw. The fracture was only confirmed the following day from xrays.

As indicated above, it would have made my task easier had the plaintiff produced the original x-ray that was taken prior to Dr Chidzonga commencing work on him. The absence of the x- ray and the evidence by Dr Chidzonga that he only noticed the irregular movement of the jaw during the extraction places me in a position where I cannot confidently hold that the jaw was broken at the defendant's surgery. This is compounded by the fact that neither Professor Chidzonga nor the plaintiff asked for leave to and opportunity to replace the useless photocopy with the original x-ray and no explanation was tendered for this omission.

Further, it was Professor Chidzonga's evidence that the x–ray that he took would only show the tooth and nothing much. He was not asked whether it would show the jaw and the fact that he referred the plaintiff to another facility for a bigger picture that would show the jaw seems to suggest to me that the radiograph that he took did not. In any event, neither the plaintiff nor Professor Chidzonga asked for time and opportunity to have the original radiograph adduced into evidence and no explanation was tendered for this omission.

I am unable to come to a conclusion as to where and when the fracture occurred from the evidence adduced before me. It could have occurred at the defendant's surgery. It could have occurred at Professor's Chidzonga's.

On the one hand, I have the testimony of the plaintiff feeling the sharp pain and the testimony of Professor Chidzonga that when he looked at the radiograph that he had taken in his surgery, he observed a fracture. This evidence seems to suggest that the fracture may have occurred at the defendant's. On the other hand, I have the missing radiography and the testimony of the defendant that she did not notice the irregular movement of the plaintiff's jaw when she was working on his tooth or else she would have included that in her written report to Professor Chidzonga.

Further, I have the testimony of Professor Chidzonga that he only noticed the irregular movement of the plaintiff's jaw when he was in the process of extracting the tooth. I also have his evidence that the x-ray he took in his surgery is of a localized nature, showing the tooth area, hence his request to the plaintiff for him to attend the Avenues Clinic for a bigger picture showing the jaw area as well. The learned professor was not asked on whether the localized x-ray he took would show the jaw area as well and to what extent. In my view, the fact that he referred the plaintiff for a bigger picture tends to suggest his one would not show the fracture to the jaw.

I have no crystal ball to gaze into for an answer to this issue. In my view, the balance of probabilities tilts in favour of no party and remains even to the detriment of the plaintiff who bears an onus to establish the facts that he relies on for his claim.

Assuming that I have erred and there is ample evidence upon which a superior court will find that the defendant did indeed fracture the plaintiff's jaw, I will proceed to give my opinion on the next issue which arises. This is to determine whether the defendant was negligent, as alleged, or at all, assuming she did fracture the plaintiff's jaw.

In his declaration, the plaintiff alleged that the defendant was negligent in that she failed to remove the tooth with such skill as is reasonable for a qualified dentist; that she tried to remove the tooth in a way that caused the plaintiff to suffer severe bleeding and unbearable pain; and that she fractured the plaintiff's lower jaw.

In his testimony, the plaintiff confined himself, and correctly so in my view, to narrating the events leading to his visit to Professor Chidzonga's surgery, and, thereafter, to him seeking treatment in South Africa. When asked how the defendant had been negligent, he simply gave his opinion that she must have been unprofessional by failing to extract the tooth in two (2) hours when Professor Chidzonga managed to do so in about 20 minutes.

The difficulty that the plaintiff had in articulating the particulars of the defendant's alleged negligence is, in my view, understandable. He is not a dental surgeon. I understand the plaintiff to have taken the simple approach to this whole matter that because an accident occurred whilst the defendant was in charge, she must have been negligent.

In my view, the particulars of negligence alleged against the defendant can only be validating by making reference to the standard operating procedures of dentists. This is so because to test the negligence of a professional, one has to first establish what an average reasonable professional in the shoes of the defendant would have done. See S v McGowan 1995 (1) ZLR 4 (HC).

The average reasonable professional is not one who is an ace or an expert in his or her field. Thus, the skills exhibited by Professor Chidzonga cannot be used to measure whether or not the defendant was negligent. She may not have been as adept at extracting teeth as the professor was. This, however, does not automatically translate into negligence on her part. An average professional is not one who is so careful that he or she will weigh each and every risk attendant upon the task at hand and advise the client of all such risks before proceeding. He or she will weigh the obvious risks and advise the client of the same.

In casu, it was Professor Chidzonga's testimony that the likelihood of a fracture during a tooth extraction can sometimes show in an x-ray taken before the extraction. It is not in dispute that the defendant caused an x ray of the plaintiff's mouth to be taken before she started working on him. It was not suggested that this x-ray showed that possibility of the plaintiff fracturing his jaw, and, notwithstanding clear evidence of this likelihood, the defendant proceeded with the extraction without taking any steps to guard against the occurrence.

It further appears to me that the reasonable professional is one who will bring their training to bear on the task at hand to assess the attendant risks and proceed with alertness. He or she has a certain degree of confidence in their capacity and skill that allows them to proceed without undue timidity and is, to a large extent, a practical person who wishes to achieve a specified result.

As I have indicated above, to establish what a reasonable dentist would have done in the circumstances of this matter, the evidence of the plaintiff was not material. It would only have been material in showing what the defendant actually did. The evidence of another dentist was imperative to set the standards that are average in the profession and against which the conduct of the defendant would have been measured to show the deviation relied upon to form a cause of action in delict.

The evidence of Professor Chidzonga, called by the plaintiff, did not sufficiently set out the average professional standards expected of a dentist extracting a tooth. His evidence was also largely narrative of the steps he took to extract the tooth after the defendant referred the plaintiff to him. He did not testify that what the defendant had done prior to her referring the plaintiff to his surgery was negligent. He was not examined on this aspect of the matter. The only portion of his evidence-in-chief that I regard as relevant on this issue is when the professor testified that it is not normal that a jaw will fracture during a tooth extraction. He qualified that by testifying that the possibility of a fracture can be assessed by taking an x- ray before the extraction. As stated above, the defendant did cause an x-ray to be taken before she discovered the embedded tooth. The x-ray so taken was not adduced into evidence.

The issue that may have exercised my mind is whether the defendant was negligent in not noticing, from this xray, that the plaintiff's jaw was likely to fracture during the extraction had the plaintiff so pleaded.

He did not.

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA
Ruled By: MUSAKWA J

The applicant is seeking an order that she be appointed the legal guardian of Tinashe Esther Chalimba, born on 17 August 1996 and Anesu Esther Chalimba, born on 29 July 1999, plus costs of suit.

In her founding affidavit, the applicant states that she cohabited with the respondent from 1995. As a result of such cohabitation, she gave birth to Tinashe Constance Chalimba on 17 August 1996 and Anesu Esther Chalimba on 29 July 1999. Due to the violent nature of the respondent the two separated. The applicant obtained an order for the custody of the minor children in the Magistrates Court. She also sought a binding over order against the respondent in the Magistrates Court. In addition, she filed two applications for maintenance for the minor children.

In 2003, the applicant secured employment in New Zealand. With her mother having passed away she had no alternative but to leave the children with the respondent. She intended to collect the children later.

In 2005, she informed the respondent on the need for the children to join her but he refused.

Later, she learnt that the respondent had taken the children to South Africa. She subsequently visited them and she was allowed limited access to them.

In 2007, she established that the children were back in Zimbabwe and attending school in Rusape where she visited them. She concludes by stating that since she was never married to the respondent she is the legal guardian of the children. She then prays for an order in terms of the draft.

In his opposing affidavit, the respondent states that the South African High Court ruled that the children should stay with him, with the applicant having access. He contends that the applicant applied for custody of the children in the local courts but she did not prosecute the matter to finality. He also contends that he never agreed that the children would return to the applicant. He was never told that the applicant intended to leave the country. There was no communication from the applicant between January 2003 and June 2005. The applicant is said to have filed an application for custody of the children in the South African High Court and the matter had not yet been determined at the time of filing of the opposing affidavit.

Counsel for the applicant submitted that it is trite that an unregistered customary law union does not bestow guardianship on the father. He prayed for the order sought despite the issue taken up by counsel for the respondent regarding the propriety of such an order. It was further his submission that nothing turns on the criticism aimed at the draft order as it seeks to confirm the legal position that the applicant is the legal guardian of the children. He also urged the court to dispose of the matter notwithstanding that there is pending litigation between the parties in the South African courts.

On the other hand, counsel for the respondent submitted that the present proceedings are substantially similar to the matter that was pending before the South African courts. He thus urged this court to exercise its discretion by declining to determine the present matter as the applicant has not finalized the matter that is before the South African courts. It was his submission, that, as a matter of public policy, a litigant should not hop from one court to the other without good cause. In truth and substance, the present application is said to be exactly the same as the one pending before the South African courts, so counsel for the respondent further argued.

On the merits, counsel for the respondent submitted that it is incompetent to grant the order sought. This is because the law recognizes two types of orders. There is what is termed a constitutive order which confers rights to one party and imposes obligations on the other party. The other order is declaratory as it does not confer rights but states what the position of the law is regarding a particular issue.

Counsel for the respondent further submitted that a litigant's case stands or falls on its founding affidavit. Thus, the founding affidavit sets out the applicant's cause of action. If it is accepted that the father of children born out of wedlock has no rights regarding those children then that can only be the subject of a declaratory order as opposed to a constitutive one.

Counsel for the respondent further pointed out paragraph 31 of the applicant's founding affidavit in which she seeks to be appointed guardian of her children. If that is the case she does not require such an appointment as she is the natural guardian by operation of law.

Counsel for the respondent also submitted that the court must endeavor to look at the substance of the application as opposed to its form. In his view the substance of the present application is captured in paragraphs 13 to 28 of the founding affidavit. In essence, the applicant is said to be seeking custody under the guise of an application for an order for guardianship. This, according to counsel for the respondent, is evidenced by what is contained in the founding affidavit.

Finally, counsel for the respondent submitted that the case of Katedza v Chunga 2003 (1) ZLR 470 (H) in which SMITH J granted a declaratory order in favour of the applicant to the effect that she was the guardian of her child was wrongly decided....,.

As regards the merits of the application, I agree with counsel for the respondent's submission that the substance of the applicant's founding affidavit deals with her quest to have custody of the minor children.

It is quite clear that the applicant relinquished custody of the children to the respondent and wants it restored. But she is seeking that in an indirect manner. If she was awarded custody by the Magistrates Court, it is not clear why she is not seeking the appropriate relief if such order has been violated.

There is no doubt that the mother of a child born out of wedlock has sole rights of custody and guardianship. In this respect see such authorities as D v M 1986 (1) ZLR 188 (HC); Katedza v Chunga 2003 (1) ZLR 470 (H); and Paul Cruth v Michele Thora Manuel 1999 (1) ZLR 7 (S).

However, in my view, this is not the real issue between the parties as can be noted from the papers. The crux of the applicant's founding affidavit is that she wants the children to join her in New Zealand but the respondent has refused to release the children.

I do not agree with counsel for the respondent's submission that the case of Katedza v Chunga 2003 (1) ZLR 470 (H) was wrongly decided. I am mindful that that was an unopposed application; but, in my view, it sets out the law clearly.

In that case, the applicant and the first respondent stayed in an unregistered customary law union for three years which resulted in the birth of a son. The applicant had the child's surname changed to hers by Notarial Deed. Thereafter, her legal practitioners sought the issuance of a new birth certificate by the Registrar-General who declined on the basis that the consent of the father of the child was required. Despite the applicant's legal practitioners pointing out that the father's consent was not a requirement as the child was born out of wedlock, the Registrar General maintained his objection. It was also pointed to the applicant's legal practitioners that the child's father was opposed to the issuance of a new birth certificate without his consent and that he was prepared to fight the issue in the courts.

Neither the father of the child nor the Registrar opposed the application.

In Katedza v Chunga 2003 (1) ZLR 470 (H) the applicant sought a declaratory order to the effect that she was the guardian of her child and for an order that the Registrar General issue the child with a new birth certificate in the applicant's name.

Contrast that with the relief being sought in the present application.

The applicant cannot be appointed guardian of her children when the law already bestows her with such a right. There is no allegation that such rights have been violated. In short, the relief sought is not supported by the facts disclosed in the founding affidavit.

Therefore, the application is dismissed with costs.

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

I have already alluded to the uncontroverted allegations referred to by the applicant in its founding affidavit.

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

The first respondent is the registered owner of a motor vehicle Isuzu KB 250, registration number 524-884G. The applicant prays for an order that the vehicle be released to him on the basis of an Agreement of Sale he alleges was concluded in respect of the vehicle on 29 August 2008. The background to the dispute is ...

The background to the dispute is as follows:

On 29 August 2008, the applicant visited the second respondent's showroom and observed an Isuzu KB250 on display. It was apparently on sale. Since he liked the vehicle he made enquiries regarding the purchase price and other conditions attaching to the agreement. The applicant avers that he dealt with Harris Kufunga and Shadreck Dzapasi. The applicant avers in the founding affidavit that they are directors of the second respondent. The price was agreed and settled at $112,000= which had to be paid by RTGS. The applicant avers further that he was informed by Harris Kufunga that he would have the registration book and the number plates once payment had been effected. An Agreement of Sale was then concluded. The applicant then paid the purchase price and subsequently took delivery of the vehicle.

On 14 November 2008 police officers from the Vehicle Theft Section attended on him and advised him that the vehicle had been reported stolen. He surrendered the vehicle to the police. Thereafter, attempts to follow up the vehicle with the police raised his suspicions as the vehicle was not parked at the police station as would be expected. It was subsequently returned to the police station after the intervention of his legal practitioners. He avers that he is a bona fide purchaser and should not be inconvenienced by a dispute between the first and second respondents.

I find that the vehicle was indeed displayed in the second respondent's showroom.

The circumstances under which the vehicle came to be displayed in the showroom, viewed from the explanation by the first respondent, raises question marks. The first respondent's explanation is that one Dzapasi had come to his residence on the evening of 29 August 2008 and had begged that the first respondent give him his vehicle as he had a client who required an Isuzu. The first respondent avers that he had been reluctant, initially, to surrender the vehicle to him; firstly, because of the manner in which Dzapasi's uncle Shadreck and Harris had treated him in the past. He did not elaborate on what this treatment related to. Secondly, he averred that he had pointed out to Dzapasi that it was night time and it would have been proper if the transaction were conducted during the day. He states that had had relented when Dzapasi gave him an assurance that the client seeking the vehicle was Dzapasi's, and, further, that the second respondent was not going to play a part in the sale. The first respondent had been assured by Dzapasi that if the client was satisfied with the vehicle, then the former would arrange for a meeting to discuss the purchase price. He had therefore retained the registration book and number plates on the understanding that the purchase price and payment arrangements would be negotiated by himself. They had not agreed on a purchase price with Dzapasi.

The first respondent denied that he had authorized Harris Kufunga or Shadreck Dzapasi to sell his vehicle. He further denied that Dzapasi had authority to sell the vehicle. He stated that if he had authorized the second respondent to sell the vehicle, he would have been given a mandate form to sign signifying the agreement between himself and the company for the disposal of the vehicle. This is the procedure they had adopted when they sold a Toyota Hilux on his behalf. He stated that the second respondent had defrauded him in respect of the sale of the Hilux and he would not have been so naïve as to take another vehicle to the second respondent to sell on his behalf.

Whilst he does not dispute the contention by the applicant that he may have seen the vehicle in the second respondent's showroom he, the first respondent, contends that if the applicant saw the vehicle on 29 August 2009 it must have been after 20:30 hours when he gave the vehicle to Dzapasi. The first respondent states that the vehicle must have been given to the applicant that night because when he visited the second respondent's showroom the following day, the vehicle was not there. He was not unduly worried by its absence because Dzapasi had told him that he would not involve the second respondent or its directors in the deal. He subsequently met Dzapasi and asked about the whereabouts of the vehicle, which is/when Dzapasi asked if Harris or Shadreck had not phoned him. That is when he heard about the alleged sale.

He reported the matter to the police, and, as a result, charges of theft of motor vehicle were preferred against Harris and Shadreck on 14 November 2008. They persuaded him to drop the charges. When the applicant refused to surrender the vehicle, he then made a report at the vehicle theft in Southerton. He said he used to see the applicant at the showroom when he was following up the issue of his vehicle but the latter never let on that he had purchased the vehicle until the first respondent had caused the arrest of Harris and Shadreck and it then came to light that the applicant was the purported buyer of the vehicle.

The first respondent denies having sold the vehicle or authorized its sale. The applicant has not filed an answering affidavit.

The first issue that falls for determination is whether or not the first respondent authorized the second respondent to sell the vehicle on his behalf.

Earlier, I commented that the explanation by the first respondent as to how the vehicle was displayed raised eyebrows. I am fortified in this belief by the contents of a letter attached to the opposing affidavit. The letter was written by the legal practitioners of the first respondent and is dated 29 August 2008 and demand is made for payment in respect of a Toyota Hilux allegedly sold by the second respondent on behalf of the first respondent as far back as May 2008.

It is too much of a coincidence that the letter is written on the same day that the applicant alleges he obtained possession of the vehicle. However, he who avers must prove.

The applicant has not filed an answering affidavit and the averments in the opposing affidavit, no matter how ridiculous they appear, have not been denied by the applicant. They are therefore taken as having been accepted as the truth of the events which transpired between the applicant and the persons who allegedly sold him the vehicle.

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

The background to the dispute is as follows:

I find that the vehicle was indeed displayed in the second respondent's showroom.

In the heads of argument filed on behalf of the applicant it is alleged, for the first time, that the second respondent was acting as an agent for the first respondent.

It is argued, in the heads of argument, that he entered into the agreement 'on the basis of agency'.

I have not been educated on the precise meaning of that cryptic phrase. I assume, however, that it is meant to convey that the second respondent was the first respondent's agent in the sale of the vehicle. If that was the basis of the claim by the applicant it should have been pleaded from the outset and been averred in the founding affidavit.

It is trite that an applicant must make his case in the founding affidavit and not in subsequent pleadings. This averment is not even in an affidavit but in heads of argument.

Whether or not the second respondent acted as an agent of the first respondent would be a factual issue which can then be subjected to scrutiny in accordance with established principles.

In the instant case no factual basis was laid to allege that there was in existence an agency relationship between the first and second respondents. Thus, the contract that the applicant argues that he entered into with the first respondent through the agency of the second respondent has not been established. If the applicant's case had been that he had entered into an agreement with the first respondent, my view is that in the draft order he would have sought a declaration as to the validity and enforceability of the alleged agreement. Instead, in the draft order he seeks an order declaring him to be the owner of the vehicle.

The allegations of agency contained in the heads of argument appear to be an after thought when it must have dawned on the applicant and his legal practitioners that the only basis upon which an agreement could be alleged against the first respondent was through agency.

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION
Ruled By: NDOU J

These issues were raised. The applicants should have responded, either by seeking the filing of a supplementary affidavit, or, even better, in casu, by simply filing an answering affidavit dealing with these issues. It this proved difficult, then they should have withdrawn the application and instituted the proceedings afresh after attending to the points raised in limine.

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

Order 32 Rule 232 provides that the respondent shall have not less than ten (10) days to file notice of opposition and the opposing affidavit. Order 32 Rule 234 gives the applicant, where the respondent has filed a notice of opposition, a further period within which to file an answering affidavit.

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

Mr. Drury states that he was authorized by the applicants'.He may have agreed to this arrangement as he had represented the applicants in the criminal trial. In addition, there would be nothing wrong for a legal practitioner to depose to an affidavit on behalf of a client - as long as he positively swears to ...

HH39-10 : HILDA SALILA AND MARIA SALILA vs GERRY MUNYARADZI SALILA N.O. and HUGHES SALILA MUSARIRA and MASTER OF THE HIGH COURT and THREE OTHERS
Ruled By: MUSAKWA J

The second applicant deposed to a supporting affidavit in which she associated herself with the averments of the first applicant....,.

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

The applicant is standing trial in the Magistrates Court on charges he has not specified in his founding affidavit. The nature of the charges that the applicant is facing is however immaterial to the determination of this application.

What is material is that on the 15th of February 2010 the applicant made an application for discharge at the close of the State case. The application did not find favour with the trial magistrate who has now been cited as the second respondent. The trial magistrate having found no merit in the application dismissed the application and ordered that the trial must proceed at 2:15pm on the 4th of March 2010. That date was subsequently extended to today the 12th of March 2010 at 12noon.

I have further extended the time to 3pm this afternoon.

In dismissing the application for discharge at the close of the State case, the trial magistrate did not give his reasons for his determination. Aggrieved by the trial magistrate's interim determination, the applicant's lawyers wrote to the Clerk of Court on the 22nd February 2010 in the following vain:

“We refer to the above matter in an application for discharge of the Accused at the close of the State Case which was dismissed on the 15th March 2010.

We confirm that our Miss Maphosa requested for reasons for judgment for the purpose of an appeal to the High Court against the decision of his worship, Magistrate Jarabini, on the same day.

Kindly place this letter before his worship as a reminder.”

In paragraph 5(c) of his founding affidavit, the applicant had this to say:

“(c) My legal practitioner indicated that the said reasons were required for an appeal the defence intended to file with the High Court on my behalf.”

(d) The 2nd Respondent advised that the said reasons would be furnished and directed my legal practitioner to check with the court before the end of the following week.

(e) On the 22nd February 2010, the beginning of the following week, Miss Maphosa wrote a letter to the Clerk of Court which was received on 24th February 2010 as a reminder to the 2nd Respondent's commitment…,.

(f)…,.

(g)…,.

(h)…,.

(i) The 2nd respondent stated that he had not seen the letters but that he had written on the record, that, despite the request by the defence, he would only give his reasons in the main judgment.”

Aggrieved by the trial magistrate's refusal or failure to give reasons for his interim determination the applicant lodged this urgent application to this Court seeking a provisional order staying the criminal proceedings pending receipt of the trial magistrate's reasons for dismissing the application for discharge at the close of the State case.

Finally, the applicant seeks an order compelling the second respondent to furnish him with the reasons for the interim determination.

During the course of argument, counsel for the applicant made the valid concession that it would be premature and incompetent to appeal against the trial magistrate's interim determination at this stage as intimated in her letter and confirmed in the applicant's founding affidavit.

The defence having realized the folly of its written word, counsel has now made an about turn and has submitted that the defence in fact meant that it intended to seek a review of the of the trial magistrate's interim determination.

That may very well be so, but, applications are determined on the record with affidavits constituting the evidence.

While counsel may seek to amend her own letter, it is virtually impossible to amend her client's affidavit.

Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

The point has been made by the defendant's counsel that the defendant is a bona fide possessor, and, as such, has a lien or ius retentionis to enforce her right to compensation for the improvement she made on the property in issue….,. It does seem to me that the issue of a lien, not having been ...

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

In or about January 2006, the applicant and the first respondent entered into an Agreement of Sale in respect of certain immovable property called Stand Number 584 Greystone Park Township of Greystone. In terms of the written agreement, the purchase price for the property was the sum of $400,000,000= and this was to be paid in ...

HH82-10 : MILRITE FARMING (PRIVATE) LIMITED vs ENOCK PORUSINGAZI and S ZUZE and THE MINISTER OF LANDS AND RURAL RESETTELEMENT and THREE OTHERS
Ruled By: HLATSHWAYO J

Regarding the second submission, the alleged new facts are attached in the founding affidavit of the second application as “reports” by various witnesses. Only in the answering affidavit, after the objection of the first respondent, are the “reports” now filed as affidavits. The basic rule pertaining to application procedures is that the applicant's case stands ...

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police. He was charged and convicted for bringing disrepute to the Zimbabwe Republic Police in contravention of section 35 of the Police Act [Chapter 11:10] (hereinafter called the Police Act).

He was sentenced to twelve days imprisonment.

The first respondent is the Commissioner General of the Zimbabwe Republic Police, who is being sued in his official capacity as the Head of the Zimbabwe Republic Police.

The second respondents are the Co-Ministers of Home Affairs, being sued in their capacity as the Ministers responsible for the Zimbabwe Republic Police.

The third respondent is the officer in charge of Chikurubi Detention Barracks, where the applicant will be lodged for twelve days if he is to serve the sentence imposed on him by the fourth respondent.

The fourth respondent is the officer who tried, convicted, and sentenced the applicant to twelve days imprisonment.

The applicant was convicted by the fourth respondent on allegations that he had sought and obtained a bribe of US$500, and stolen a plasma television from a suspect he had arrested and was about to lodge in police cells. He was charged under section 35 of the schedule to the Police Act, which provides as follows:

“Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force.”

He was convicted and sentenced to twelve days imprisonment.

The suspect, and another witness, gave evidence at the trial leading to the conviction of the applicant.

In this application, the applicant alleges that the fourth respondent did not warn himself about the dangers of convicting on the evidence of accomplice witnesses. He also alleged, that, the fourth respondent did not warn the accomplices before they testified.

He further alleges that he is being exposed to double jeopardy as he is also being charged for the same acts under the Magistrate's Court.

He further complains that the sentence imposed by the fourth respondent induces a sense of shock.

Counsel for the applicant submitted that section 35(1) of the Police Act [Chapter 11:10] requires the trial under the Police Act to closely comply with the procedure followed in the courts of Zimbabwe. It provides as follows:

“(1) The proceedings before or at any trial by a board of officers or an officer in terms of this Act, shall, as near as may be, be the same as those prescribed for criminal cases in the courts of Zimbabwe.”

The intention of the legislature is clear.

The tribunal or trial officer must, as nearly as is possible, comply with the rules of evidence and procedure as is done in the courts of Zimbabwe. Where the tribunal or trial officer significantly departs from the procedure set for criminal proceedings in the courts of Zimbabwe the proceedings may be set aside on review.

The test applied on reviewing proceedings is whether or not the proceedings are in accordance with real and substantial justice.

That may be satisfied if a record reveals statements made by the accused admitting having done what is alleged or other things tending to support the conviction. In other words, errors, on the part of the prosecuting authority, may, if they do not go to the root of the proceedings, affect its being held to be in accordance with real and substantial justice.

A stay of sentence must therefore only be granted if the record shows prospects of success, which can only be properly assessed from the totality of the proceedings.

In this case, the applicant has not placed the record of proceedings before the court. In fact, the applicant said nothing about it in his founding affidavit.

Counsel for the applicant tried to explain from the bar, but, an application must stand or fall on the papers filed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The applicant has not pleaded statutory tenancy as its cause of action. It has instead alleged breach of a specific written agreement and I have disposed of the matter on that basis.

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

In March 2009, the applicant approached this court on a certificate of urgency and obtained a provisional order calling upon the respondents to show cause why they should not be ordered to release certain items of household goods and effects whose details were listed in an annexure to the application.

As interim relief, the second respondent was ordered not to sell or dispose of any of the property on the schedule. The second respondent was also restrained from releasing any of the property to anyone other than the applicant.

On 14 January 2010, the matter was set down before me for the confirmation or discharge of the provisional order, the first respondent having filed a notice of opposition and opposing affidavit in the matter....,.

The issue that has exercised my mind in this application is whether the applicant is entitled to the order that he seeks on the facts that he alleges.

In his provisional order, the applicant seeks an order compelling the respondents to release to him certain items of his household goods and effects that are in the possession of the second respondent.

In his founding affidavit, the applicant alleges that he was in occupation of certain property leased by the first respondent. A rent dispute arose between the parties leading to the applicant approaching the Rent Board after the first respondent had locked the applicant out of the leased property. When the first respondent requested the applicant to show, in some tangible way, how he would be able to pay whatever rental was found to be fair in respect of the property, he pointed out that he had valuable movables that could be sold to meet his obligations. The first respondent demanded that the movables be valued and this was done.

Later, the applicant learnt that the first respondent intended to have his property sold.

He approached the second respondent, who was in possession of the property, and advised it not to sell the property as such had been removed without his permission and he had not consented to the sale.

In obtaining an order restraining the second respondent from selling the property, the applicant averred that he was in peaceful and undisturbed possession of the property before he was locked out of the rented property and before the respondents removed his movables from the property.

From the concluding paragraph of his founding affidavit, and from the submissions made orally by counsel for the applicant, it is clear that the applicant approached the court for restoration of his possession under the mandament van spolie.

It is trite that for one to succeed in a spoliation, one must prove that they were in peaceful and undisturbed possession of the property and were illicitly despoiled of such possession.

In my view, the applicant drafted his affidavits so vaguely that I cannot discern at what stage he alleges he was in peaceful and undisturbed possession of the property for the purposes of the application he has brought.

From his own affidavit, it would appear that after being initially locked out, which clearly was an act of spoliation, he was restored in possession of the rented premises after the Rent Board intervened.

After the intervention of the Rent Board, it is not clear how the applicant “lost” or parted with possession of his movables. The affidavit does not say.

In my view, the absence of an averment, in the founding affidavit, to the effect that the applicant was unlawfully made to part with possession is fatal to his application - even in the absence of opposition from the respondents who are now barred.

I am aware that the applicant obtained a provisional order from this court, granting him interim protection pending the issuance of an order restoring possession of the property to him.

It is trite that the judge who granted the provisional order was satisfied that a prima facie case had been made out for the interim protection that the applicant was seeking. It is further trite, that, at this stage, for me to grant the final relief that the applicant prays for, I must be satisfied that he has established his case on a balance of probabilities.

I am not so satisfied.

(i) Firstly, I am not satisfied that the applicant has established the second element for a spoliation order. He has not shown, in his founding affidavit, in which all the necessary averments have to be made, that he was illicitly deprived of possession. He makes an attempt to do so in the answering affidavit after the first respondent had taken specifically alleged that the applicant consented to the removal of the property to the auctioneers.

It is trite, that, in the circumstances, I cannot pay regard to the averments in the answering affidavit as laying out the applicant's cause of action.

HH37-09 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LTD vs CONSTRUCTION RESOURCES AFRICA (PVT) LTD AND THREE OTHERS
Ruled By: CHATUKUTA J

It also appears to me that the founding affidavit does not specify when the applicant became aware of the respondents fraudulent acts. Upon inquiry on the issue, counsel for the plaintiff referred me to paragraph 17 of the founding affidavit. The paragraph reads - “17 That the issue of the replacement title deeds to the two ...

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

The first respondent filed a notice of opposition and an opposing affidavit sworn to by its Director, Mr Jimmy Zerenie. It also filed a supporting affidavit by Mr Tanga Matema, a Director of Plotland Investments (Pvt) Ltd, the purchasing agent of the first respondent. The applicant filed a detailed answering affidavit and annexures K1 to ...

HH02-11 : THE MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and MINISTER OF JUSTICE AND LEGAL AFFAIRS vs LANGTON CHIGWIDA and J.K. MWATSIYA
Ruled By: CHATUKUTA J

The respondents challenged the admission of Mr Majuru's supporting affidavit on the basis that it should have been filed together with the founding affidavit and not the answering affidavit as it raised issues that the applicants were aware of at the time of the filing of the founding affidavit and was deposed to by ...

HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

The defendant claimed maintenance for the minor child in the sum of 250 pounds per month per child. The plaintiff had offered an amount up to US$3,000 per month for the two minor children. The defendant, however, cannot be awarded more than what she has claimed in her summons. The ...

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

The applicant predicted that for the 2010 tobacco season there would be congestion at its floors which would stretch the facilities and possibly lead to a health hazard. The increased floor space, it contended would go a long way in reducing the delays that tobacco farmers were experiencing in having their produce sold. Apart from making ...

Apart from making these averments, the applicant did not produce any documentation in proof of the same.

It was only in answer to the contention by the respondent to the effect that the applicant did not have good and sufficient grounds for its eviction from the leased premises that the applicant then sought to produce documents to prove the alleged increase in deliveries. The applicant has, as a consequence, attached extracts from newspapers, some of which are dated, others are not. An extract from the Business Digest of September 3 to 9, 2010 contains an article which confirmed that as at that date a total of 113.1 million kgs of flue cured tobacco had been sold with a value of US$344.2 million at the tobacco auction floors that were operational nationwide. The article indicated that projected total sales were 120 million kgs for the season. An earlier article had projected that the sales from tobacco would rake in US$274 million. The article confirmed that sales of tobacco, as at the date of the article, July 10 to 22, 2010 had doubled from the same period the previous year.

The respondent has objected to the attachment by the applicant of the newspaper clippings as well as the amplification by the applicant of the projected increase in delivery of tobacco to its auction floors. The respondent has argued that the applicant is seeking to make its case in the answering affidavit as opposed to the founding affidavit. It is suggested, in argument, that the applicant did not set out a cause of action in the founding affidavit and that it was only in the answering affidavit that it sought to make out its case.

I am not convinced that the respondent is, in fact, correct.

The respondent has, in its opposing affidavit, disputed that the applicant needs the increased floor space for an expansion program. The respondent did, in fact, challenge the applicant to provide the court with information as to what percentage of expected tobacco grown was to be delivered to it. The respondent has also challenged the applicant to show that the projected increase in tobacco deliveries would see an increase in deliveries to the applicant itself. I believe that the respondent is being impracticable in seeking an assurance from the applicant that there would be an increase in deliveries to its floors. Unless the licence to auction tobacco has been withdrawn one would expect that any registered or licence tobacco auction can only benefit from an increase in tobacco cropping. There is no suggestion, on the papers, that any farmer intending to grow and market the crop must first register with an auction floor. It is enough, in my view, that the applicant has shown that there will be an increase in the production of tobacco.

HH126-13 : AMER KHAN vs INNOCENT MUCHENJE and CHARM MUCHENJE
Ruled By: MAKONI J

Change of Direction I agree with the submissions made by counsel for the respondents on this point. The applicant belatedly sought to change the whole thrust not only on the application itself but of the argument thereof from Rule 63 and Rule 449. Rule 449 is mentioned for the first time in the heads ...

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

The respondent also took issue with the prayer for eviction which only appears in the draft order when the founding affidavit is silent on it.

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

The plaintiff, on 24 February 2011, issued summons out of this court seeking an order of sharing of the assets of the parties on the basis of the common law principle of unjust enrichment.

In his declaration, the plaintiff stated that he entered into a customary law union with the defendant which union was blessed with four children two of whom are minor children. At the time he contracted the union the plaintiff said he was already married to his first wife and it was also a customary law union.

The plaintiff stated that he acquired the immovable property in issue, known as Stand No. 2573 Kuwadzana 4 Harare, when he was married to his first wife and had not married the defendant. He said the immovable property is registered in the joint names of the plaintiff and his first wife.

It is the plaintiff's case that the customary union between him and the defendant has been since dissolved as per the customary rites. The plaintiff however contended that he would be unjustly enriched if the defendant does not receive any share in the immovable property, No. 2573 Kuwadzana 4 Harare (hereinafter the house or the property). The plaintiff states, in his declaration, that it is fair and equitable to award the defendant a 20% share of the open market value of the property, a figure he later amended before the commencement of the trial to 5% share.

In her plea, the defendant sought the distribution not only of the house but also of some movable property not stated in the plaintiff's declaration which include mainly household goods itemised in paragraph 2 of her plea.

While the defendant conceded that the house was acquired by the plaintiff and his first wife, she said, in her plea, that at the time she married the plaintiff the house only consisted of a core house of two rooms. The defendant said she contributed to the extensions and improvements made to the house which is now a 7-roomed house. In her plea, the defendant alleges direct contribution to the extension of the house by raising money from the sale of clothes which money was used to purchase the building materials. She said she bought clothes in Harare for resale to illegal gold panners in Shamva, Mazowe, Chikuti and Sanyati. She said the money she raised was specifically used to pay the builders, carpenters and purchasing building materials. In her plea, she said she also used to sell uniforms sewn by the plaintiff using the family sewing machine in Makonde area and used the profits in the same manner already explained. The defendant further stated, in her plea, that she indirectly contributed by taking delivery of the building materials bought when the plaintiff was at work, assisting the plaintiff in the purchasing of the building materials and for their safekeeping, and preparing food for the builders and carpenters.

The defendant said she further contributed in the construction of the plaintiff's rural home; firstly, in Muzarabani, where she cleared virgin land, moulded bricks, constructed a homestead, cattle and goat pens at the time the plaintiff was in full employment in Harare. The defendant said she performed the task when the family moved from Muzabani to Gumbura area, Makonde in Mashonaland West Province where she said they built a rural home which now remains the sole asset of the plaintiff. The defendant stated, in her plea, that it is just and equitable that the house or property in issue be sold all the proceeds shared equally.

It would seem the purpose for replication was lost to the plaintiff as he did not seek to respond to pertinent issues raised by the defendant in her plea. The need to do so became apparent during the trial.

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE
Ruled By: NDOU J

The averments in the answering affidavit constitute a belated and inadequate attempt to rectify a fatal error. It is trite that an application stands or fails on its founding affidavit - Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H)…,. On this point alone the provisional order ...

HB45-13 : THULANI NDEBELE vs JOHN PERCIVAL BAWDEN
Ruled By: CHEDA AJ

The applicant issued summons against the defendant claiming removal of the defendant and all those claiming occupation through the defendant, from Subdivision 2 of Glenorchie Farm, Insiza District, Matabeleland South Province. At the hearing of the opposed application, the court pointed out that while the applicant's claim was for Subdivision 2 in the summons and the ...

HB75-13 : MAYDEEP INVESTMENTS vs CECIL MADONDO and MASTER OF THE HIGH COURT and ZIMBABWE TEXTLIE WORKERS UNION
Ruled By: KAMOCHA J

On 8 December 2011, an order was granted by this court placing Merlin (Private) Limited under provisional management. Cecil Madondo of Tudor House Consultants (Private) Limited was appointed the Provisional Judicial Manager of Merlin (Private) Limited with powers and duties set out in section 303 of the Companies Act [Chapter 24:03]. On 4 July 2012, Maydeep Investments ...

On 4 July 2012, Maydeep Investments (Pvt) Ltd sought and was granted a provisional order whose interim relief interdicted Cecil Madondo from being confirmed as the Judicial Manager of Merlin (Pvt) Ltd. In its opposition to the appointment of Cecil Madondo as the final judicial manager Maydeep Investments (Pvt) Ltd, inter alia, said this:-

“Without casting aspersions on the probity and standing of the 1^st respondent it is a regrettable but undeniable fact that the 1^st respondent is being investigated on allegations of dishonesty in an estate of the late Mr Njozi the 1^st respondent was administering.

A judicial manager's conduct, like that of Caesar's wife, must be beyond reproach or suspicion.

There may well be no substance to allegations made against the 1^st respondent but it would be best that he be cleared of the allegations first before he can assume functions of judicial manager.”

The above allegations were palpably false.

When Cecil Madondo refuted them in the opposing affidavit Maydeep Investments (Pvt) Ltd did not file a replying affidavit to the contrary. It is therefore taken as having accepted that what Cecil Madondo said was the true position.

Similarly, it had been alleged by Maydeep Investments (Pvt) Ltd that Cecil Madondo had contravened the provisions of section 302 of the Companies Act [Chapter 24:03] by canvassing for his appointment.

That allegation also turned out to be false. Needless to say, when Cecil Madondo refuted it, it was not persisted with.

To sum up on this issue, Maydeep Investments (Pvt) Ltd approached the court seeking a provisional order on the basis of false allegations. When Cecil Madondo pointed out that the allegations were false Maydeep Investments (Pvt) Ltd failed to respond. Not only did it fail to file a replying affidavit it also failed to set the matter down for a hearing because it was content with the provisional relief granted to it.

HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

Following the filing and service of the judgment creditor's notice of opposition and opposing affidavit Steelnet (Zimbabwe) (Pvt) Ltd had the effrontery to file what is headed “Confirmatory Affidavit of Christopher Maswi” wherein Christopher Maswi, the judicial manager, was seeking release of the attached BMA Fasteners (Pvt) Ltd goods on the grounds advanced in Erick ...

HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK
Ruled By: CHIGUMBA J

Rule 4C of the High Court Rules, 1971 provides as follows: 4C. Departures from rules and directions as to procedure The court or a judge may, in relation to any particular case before it or him, as the case may be - (a) Direct, authorize or condone a departure from any provision of these rules, including an ...

Rule 4C of the High Court Rules, 1971 provides as follows:

4C. Departures from rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as the case may be -

(a) Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;”

It is a remedy provided by the Rules of this Court for those situations where a strict adherence to the Rules would result in a miscarriage of justice. A tree that does not bend, it breaks. This Rule is designed to give the court flexibility, in appropriate circumstances, in doing justice between man and man. It is my considered view that, invoking Rule 4C is a drastic measure which should be used sparingly and reserved for the most deserving of cases where a rigid adherence to the Rules of this Court would result in a miscarriage of justice. The court is literally being prevailed upon to act as a fairy godmother and wave its magic wand to make the bad stuff go away so that justice can be done between the parties when it is asked to utilize its discretion in terms of Rule 4C.

In the case under consideration, the papers filed of record are a testimony to a slippery slope of disregard of not one but many of the Rules of this Court and it would be inappropriate for the court to exercise its discretion in favor of an applicant who has proved to be dilatory in many aspects of its conduct of this matter. Further, in my view, Rule 4C should only properly be resorted to in the absence of other suitable remedies in the Rules of this Court, where a party is in danger of being non-suited.

Clearly, in this case, Order 34 itself provides the applicant with other suitable alternative remedies. The applicant could have withdrawn the application when the respondent schooled it on the requirements of Rule 263 in its written submissions. If the time within which to file the application ran out, the applicant could have filed for condonation of late filing of the application for leave to appeal in terms of Order 34 Rule 266, and Rule 267. There is no justification for deliberately proceeding with a defective application on the basis of an unfounded hope that a judge can be persuaded to utilise Rule 4C to cure any defects, especially defects that were glaringly obvious and which were brought to the applicants attention before the matter was allocated dates for hearing.

An application stands or falls on the basis of its founding affidavit. See Mangwiza v Ziumbe & Anor 2002 (2) ZLR 489 (S) where the court stated that:

“…, in application proceedings the cause of action must be set out fully in the founding affidavit and new matters should not be raised in an answering affidavit.”

I find that neither the founding affidavit nor the proposed supplementary affidavit, combined, and in tandem, suffice to cure the application for leave to appeal of its defects.

There is thus no justification for invoking the provisions of Rule 4C in its favor.

Having found that there is no proper application for leave to appeal before the court in terms of Order 34, the matter must end there. It follows that the application for leave to appeal is dismissed with costs.

HH58-14 : MICHAEL P. HITSCHMAN and PESCA (PVT) LTD vs COMMISSIONER - GENERAL OF POLICE and CO-MINISTERS OF HOME AFFAIRS and ATTORNEY GENERAL and SUPERINTENDENT ARNOLD DHLIWAYO
Ruled By: NDEWERE J

On the merits of the application, the court observed a lot of errors in the founding affidavit. A founding affidavit is the document upon which an application is founded and as such it should be prepared seriously with the object of making the basis of the application clear to the court. If a founding ...

HH331-14 : DR. JANE MUTASA vs TELECEL INTERNATIONAL and TELECEL ZIMBABWE (PRIVATE) LIMITED
Ruled By: MATHONSI J

The bulk of what the applicant relies upon in making out a case for the relief that she seeks is contained in Heads of Argument filed by her counsel. It is not only improper but also wrong, utterly absurd and completely unacceptable to purposely avoid presenting evidence in affidavits which would put the other party ...

HH566-14 : TAWADZERA ZISHIRI and SHIRELLA PETERS and ANDRA NYANDEBVU and VIOLET CHATINDO and OTHERS vs STREAMSLEIGH INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

The applicants' affidavits founding this application are remarkable, not by what they say, but by what they do not say. They do not say who their employer is. They do not state the basis upon which they are, or were, in occupation of the premises and the basis upon which they are entitled to remain ...

CC19-17 : JONATHAN MOYO vs SERGEANT CHACHA and THE ZIMBABWE ANTI-CORRUPTION COMMISSION and THE COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and THE PROSECUTOR-GENERAL
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, UCHENA JCC and ZIYAMBI AJCC

Counsel for the applicant sought to urge the Constitutional Court to find that there were exceptional circumstances that justified the decision by the applicant to approach the Constitutional Court directly for a relief that a Remand Court had power to grant. The argument was that the applicant feared indictment to the High Court once ...

SC54-17 : NDABEZINHLE MAZIBUKO vs THE BOARD OF GOVERNORS, CHRISTIAN BROTHERS COLLEGE and THE NATIONAL INCOMES AND PRICING COMMISSION and THE SECRETARY, MINISTRY OF EDUCATION
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

The difficulty that the appellant faced in the court a quo was that he did not timeously lay a factual basis upon which the court could exercise its discretion in terms of the Consumer Contracts Act. Whether the contract was unfair was not an issue that the appellant canvassed - both in his founding ...

HH788-15 : COLLEN KWARAMBA vs WINSHOP ENTERPRISES (PVT) LTD and BLAIR CHRISTINK and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

In our law, an application stands or falls on its founding affidavit. See Mobile Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H)…,; Muchini v Adams SC47-13.That point is eminently stated by MAKARAU JP…, in Hiltunen v Hiltunen 2008 (2) ZLR 296 (H)…, where she remarked:“It is trite ...

HH15-15 : HONEYCOMB HILL (PRIVATE) LIMITED vs HERENTALS COLLEGE (PRIVATE) LIMITED
Ruled By: NDEWERE J

In Austerlands (Pvt) Ltd v Trade and Investment Bank and 2 Others SC92-05, the court said; “The general rule that has been laid down in this regard is that an application stands or falls on the founding affidavit and the facts alleged in it. This is how it should be because the founding affidavit ...

HB83-16 : PROFERT ZIMBABWE (PVT) LTD vs MACDOM INVESTMENTS (PVT) LTD
Ruled By: MAKONESE J

The respondent contends that in application proceedings, an application stands to be determined on the basis upon which it has been made. Put differently, an application based on a defective or inadequate founding affidavit must be dismissed….,. As was stated by VAN WINSEN AJA in Federated Trust Ltd v Botha 1978 (3) SA 645 (A)…,.; “Rules ...

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Founding, Opposing, Supporting, Answering Affidavits re: Approach & Rule that a Case Stands or Falls on Founding Affidavit

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

HH88-09 : ALLIANCE FRANCAISE vs ADRIEN ORFORD and LESLEY ORFORD (T/A ALO ALO RESTAURANT) Ruled By: PATEL J

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS Ruled By: GOWORA J

SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

HH66-12 : OTILIAH ZULU vs EZRA ZULU Ruled By: MAWADZE J

HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI Ruled By: KAMOCHA J

SC17-09 : ELIZABETH MUTIZHE vs LOVENESS GANDA and THE REGISTRAR OF DEEDS and FANNIE MUTIZHE Ruled By: MALABA DCJ

HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY Ruled By: CHITAKUNYE J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION Ruled By: KUDYA J

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA Ruled By: KUDYA J

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA Ruled By: MAKARAU JP

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA Ruled By: MAKARAU JP

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA Ruled By: MUSAKWA J

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT Ruled By: BERE J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE Ruled By: GOWORA J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE Ruled By: GOWORA J

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION Ruled By: NDOU J

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS Ruled By: NDOU J

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS Ruled By: MUSAKWA J

HH39-10 : HILDA SALILA AND MARIA SALILA vs GERRY MUNYARADZI SALILA N.O. and HUGHES SALILA MUSARIRA and MASTER OF THE HIGH COURT and THREE OTHERS Ruled By: MUSAKWA J

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI Ruled By: BHUNU J

Appealed HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI Ruled By: BERE J

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS Ruled By: MAKARAU JP

HH82-10 : MILRITE FARMING (PRIVATE) LIMITED vs ENOCK PORUSINGAZI and S ZUZE and THE MINISTER OF LANDS AND RURAL RESETTELEMENT and THREE OTHERS Ruled By: HLATSHWAYO J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA Ruled By: UCHENA J

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

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD Ruled By: MAKARAU JP

HH37-09 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LTD vs CONSTRUCTION RESOURCES AFRICA (PVT) LTD AND THREE OTHERS Ruled By: CHATUKUTA J

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

HH02-11 : THE MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and MINISTER OF JUSTICE AND LEGAL AFFAIRS vs LANGTON CHIGWIDA and J.K. MWATSIYA Ruled By: CHATUKUTA J

HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI Ruled By: GUVAVA J

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

HH126-13 : AMER KHAN vs INNOCENT MUCHENJE and CHARM MUCHENJE Ruled By: MAKONI J

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

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO Ruled By: MAWADZE J

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE Ruled By: NDOU J

HB45-13 : THULANI NDEBELE vs JOHN PERCIVAL BAWDEN Ruled By: CHEDA AJ

HB75-13 : MAYDEEP INVESTMENTS vs CECIL MADONDO and MASTER OF THE HIGH COURT and ZIMBABWE TEXTLIE WORKERS UNION Ruled By: KAMOCHA J

HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION Ruled By: MUTEMA J

HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK Ruled By: CHIGUMBA J

HH58-14 : MICHAEL P. HITSCHMAN and PESCA (PVT) LTD vs COMMISSIONER - GENERAL OF POLICE and CO-MINISTERS OF HOME AFFAIRS and ATTORNEY GENERAL and SUPERINTENDENT ARNOLD DHLIWAYO Ruled By: NDEWERE J

HH331-14 : DR. JANE MUTASA vs TELECEL INTERNATIONAL and TELECEL ZIMBABWE (PRIVATE) LIMITED Ruled By: MATHONSI J

HH566-14 : TAWADZERA ZISHIRI and SHIRELLA PETERS and ANDRA NYANDEBVU and VIOLET CHATINDO and OTHERS vs STREAMSLEIGH INVESTMENTS (PVT) LTD Ruled By: MATHONSI J

SC54-17 : NDABEZINHLE MAZIBUKO vs THE BOARD OF GOVERNORS, CHRISTIAN BROTHERS COLLEGE and THE NATIONAL INCOMES AND PRICING COMMISSION and THE SECRETARY, MINISTRY OF EDUCATION Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

HH788-15 : COLLEN KWARAMBA vs WINSHOP ENTERPRISES (PVT) LTD and BLAIR CHRISTINK and REGISTRAR OF DEEDS Ruled By: MATHONSI J

HH15-15 : HONEYCOMB HILL (PRIVATE) LIMITED vs HERENTALS COLLEGE (PRIVATE) LIMITED Ruled By: NDEWERE J

HB83-16 : PROFERT ZIMBABWE (PVT) LTD vs MACDOM INVESTMENTS (PVT) LTD Ruled By: MAKONESE J

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

HH88-09 : ALLIANCE FRANCAISE vs ADRIEN ORFORD and LESLEY ORFORD (T/A ALO ALO RESTAURANT)
Ruled By: PATEL J

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

HH66-12 : OTILIAH ZULU vs EZRA ZULU
Ruled By: MAWADZE J

HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI
Ruled By: KAMOCHA J

SC17-09 : ELIZABETH MUTIZHE vs LOVENESS GANDA and THE REGISTRAR OF DEEDS and FANNIE MUTIZHE
Ruled By: MALABA DCJ

HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA
Ruled By: MUSAKWA J

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION
Ruled By: NDOU J

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

HH39-10 : HILDA SALILA AND MARIA SALILA vs GERRY MUNYARADZI SALILA N.O. and HUGHES SALILA MUSARIRA and MASTER OF THE HIGH COURT and THREE OTHERS
Ruled By: MUSAKWA J

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

HH82-10 : MILRITE FARMING (PRIVATE) LIMITED vs ENOCK PORUSINGAZI and S ZUZE and THE MINISTER OF LANDS AND RURAL RESETTELEMENT and THREE OTHERS
Ruled By: HLATSHWAYO J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

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

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HH37-09 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LTD vs CONSTRUCTION RESOURCES AFRICA (PVT) LTD AND THREE OTHERS
Ruled By: CHATUKUTA J

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

HH02-11 : THE MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and MINISTER OF JUSTICE AND LEGAL AFFAIRS vs LANGTON CHIGWIDA and J.K. MWATSIYA
Ruled By: CHATUKUTA J

HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

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

HH126-13 : AMER KHAN vs INNOCENT MUCHENJE and CHARM MUCHENJE
Ruled By: MAKONI J

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

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE
Ruled By: NDOU J

HB45-13 : THULANI NDEBELE vs JOHN PERCIVAL BAWDEN
Ruled By: CHEDA AJ

HB75-13 : MAYDEEP INVESTMENTS vs CECIL MADONDO and MASTER OF THE HIGH COURT and ZIMBABWE TEXTLIE WORKERS UNION
Ruled By: KAMOCHA J

HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK
Ruled By: CHIGUMBA J

HH58-14 : MICHAEL P. HITSCHMAN and PESCA (PVT) LTD vs COMMISSIONER - GENERAL OF POLICE and CO-MINISTERS OF HOME AFFAIRS and ATTORNEY GENERAL and SUPERINTENDENT ARNOLD DHLIWAYO
Ruled By: NDEWERE J

HH331-14 : DR. JANE MUTASA vs TELECEL INTERNATIONAL and TELECEL ZIMBABWE (PRIVATE) LIMITED
Ruled By: MATHONSI J

HH566-14 : TAWADZERA ZISHIRI and SHIRELLA PETERS and ANDRA NYANDEBVU and VIOLET CHATINDO and OTHERS vs STREAMSLEIGH INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

SC54-17 : NDABEZINHLE MAZIBUKO vs THE BOARD OF GOVERNORS, CHRISTIAN BROTHERS COLLEGE and THE NATIONAL INCOMES AND PRICING COMMISSION and THE SECRETARY, MINISTRY OF EDUCATION
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

HH788-15 : COLLEN KWARAMBA vs WINSHOP ENTERPRISES (PVT) LTD and BLAIR CHRISTINK and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

HH15-15 : HONEYCOMB HILL (PRIVATE) LIMITED vs HERENTALS COLLEGE (PRIVATE) LIMITED
Ruled By: NDEWERE J

HB83-16 : PROFERT ZIMBABWE (PVT) LTD vs MACDOM INVESTMENTS (PVT) LTD
Ruled By: MAKONESE J