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

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HH373-16 : AL SHAMS GLOBAL BVI LIMITED vs CHRISTOPHER SAMBADZA
Ruled By: TAGU J

At the beginning of the hearing of this matter, counsels for the respondent took a preliminary point that the last sentence on paragraph 1 of page 42 on the applicant's heads of argument which reads: “…,. Respondent, at the material time, was also a director of Interfin Bank Limited (“Interfin” or “the Bank”). The Bank which ...

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

The facts relied upon by the respondent were, contrary to the law, set out in the heads….,. Curiously, the court disposed of the matter on a basis other than that argued by the parties. It was up to the respondent to prove that prescription did not start to run until demand for transfer would have been ...

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SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

I now turn to consider whether the first respondent's claim can be defeated by virtue of the alleged change of land use. The first appellant filed its opposing affidavit on 8 February 2011. The opposing affidavit was deposed to by its director, Killian Kapaso, duly authorised thereto by resolution of the company directors. Nowhere in that affidavit ...

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SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

RELIEF SOUGHT A QUO – SPOLIATORY OR INTERDICTORY? The real dispute between the appellant and the first respondent is whether the relief that the appellant sought in the court a quo was interdictory or spoliatory. The appellant says it sought an order of spoliation. The first respondent disagrees and submits that the relief the appellant sought was ...

RELIEF SOUGHT A QUO – SPOLIATORY OR INTERDICTORY?

The real dispute between the appellant and the first respondent is whether the relief that the appellant sought in the court a quo was interdictory or spoliatory.

The appellant says it sought an order of spoliation. The first respondent disagrees and submits that the relief the appellant sought was an interdict.

In order to determine what relief exactly the appellant sought, one must go to the founding papers.

THE CERTIFICATE OF URGENCY

The certificate of urgency was filed by one Jacobus Petrus Obelholzer, a legal practitioner. In that certificate, he stated that the matter involved an offer letter which, as far as the appellant was aware, had been issued in respect of land that had not been acquired by the State. He further stated:-

“The applicant stands to suffer serious prejudice of a financial nature should no interdict be granted urgently. In the event that the first respondent and/or his wife and/or persons claiming through him move onto the farm with their cattle, there will be intermixing of herds, which can barely be avoided on a farm of the size of Centenary. Inter-mixing leads to uncontrolled cross breeding and potentially to communication of diseases which are both fatal to a business of pedigree rearing…,.”

APPELLANT'S FOUNDING AFFIDAVIT

In its founding affidavit, the appellant stated:

“27. I now bring this urgent application for an order interdicting the 1^st respondent from taking occupation of the farm and/or moving cattle onto the farm until the legitimacy of the offer letter is established by this Honourable Court.

28. In other words, because of the potentiality for grave prejudice to the applicant, and to the 1^st respondent himself, as well as third parties who have financed the applicant which prejudice will follow if the 1^st respondent is allowed to occupy on the basis of an offer letter which turns out to be improperly issued, there is need for this Honourable Court to issue a temporary interdict until the legitimacy of the offer letter is ascertained.

29….,.

30….,.

31. Therefore, from all appearances, that farm has not been gazetted and the offer letter cannot, therefore, be valid.

32. The applicant, therefore, prays for an interdict to be issued pending disclosure of the full circumstances of the authority of the offer letter…,.”

ORDER OF THE COURT A QUO

The High Court issued the following provisional order:-

“TERMS OF FINAL ORDER SOUGHT

1. The offer letter issued by the 2^nd respondent herein on the 13^th February 2014 be and is hereby declared invalid and set aside.

2. The 1^st respondent, and all persons claiming occupation through him, be and are hereby permanently interdicted from taking occupation of, or bringing cattle onto the piece of land, namely, a farm known as Subdivision A of Centenary, measuring 1,304,5441 hectares situate in the Bulilima District until such a time as the applicant and all claiming occupation through it have been removed by order of a court of competent jurisdiction.

3. The 1^st respondent, and all persons claiming occupation through him, be and are hereby directed to remove all cattle and belongings that may have been brought onto, or may remain on, the said farm forthwith.

4. The 1^st respondent, and all persons claiming occupation through him, be and are hereby interdicted from interfering with the applicant's business operations on the said farm.

5. The respondents shall pay the costs.

INTERIM RELIEF GRANTED

Pending the return day, the following relief is granted:

1. The 1^st respondent be and is hereby interdicted and barred from taking occupation of, or bringing cattle onto the piece of land, namely, a farm known as Subdivision A of Centenary, measuring 1,304,5441 hectares situate in the Bulilima District.

2. The 2^nd respondent is interdicted from taking any steps to evict the applicant from the farm described above.

3. It is hereby declared that until this application is determined on the Return Day, the applicant and all claiming occupation through it are entitled to remain in peaceful occupation of the farm and to continue operations on the farm undisturbed.

4. In the event that the 1^st respondent, or any party claiming occupation through him, has, by the time of service of this order, taken occupation of the farm, it is ordered that the 1^st respondent or any such person shall vacate the farm immediately and restore occupation and possession to the applicant.

5. In the event of a party referred to in paragraph 4 above failing to vacate the farm in accordance with this order, the Deputy Sheriff is authorised and directed to evict such party from the farm.”

As already noted, following the issuance of the provisional order, the first respondent filed an opposing affidavit. In that affidavit, he denied interfering with the appellant's farming operations. He stated that the land in question had, in fact, been acquired by the State and attached a copy of the Government Gazette of 17 September 2003.

He therefore opposed the confirmation of the provisional order.

In its answering affidavit, the appellant then averred that by the time the provisional order was granted, the first respondent's wife had taken occupation of the farm and evicted the appellant's labour force from the farm compound. It further alleged that in the absence of an order for the eviction of the appellant, the act of moving onto the farm was unlawful and in contempt of court. The appellant then prayed for confirmation of the provisional order and specifically stated that “an order of this Honourable Court is necessary in order to prevent self-help.”

In its heads of argument, the appellant conceded that the farm had indeed been acquired by the Government. It then sought alternative relief. It also argued that it had established the clear right to remain in peaceful occupation of the property until such time as an order of court was issued for its eviction. The appellant then proceeded to cite a number of authorities in which it sought to argue that it had the right to remain in occupation and that the first respondent had, in fact, despoiled it of its possession of the farm….,.

SPOLIATION PLEADED FOR THE FIRST TIME IN ANSWERING PAPERS

It is clear that the issue of spoliation only surfaced for the first time in the answering affidavit and heads of argument filed on behalf of the appellant. In that affidavit, the appellant conceded that the farm had been lawfully acquired by the State.

In its heads of argument before this Court, the appellant exerted much energy on the issue of spoliation. It argued that its petition “was merely for confirmation of an order of spoliation that the very same court had already determined to be deserving and granted.” It further argued that the proceedings, having been spoliatory, “consideration of the factors relevant in an application for an interdict were irrelevant.” The illegality or otherwise of the possession was not an issue as the aim of spoliation is to prevent the kind of self-help that the first respondent resorted to in this case.

AN APPLICANT STANDS OR FALLS ON ITS FOUNDING PAPERS

The position is now settled in this jurisdiction that an applicant stands or falls by his founding affidavit and the facts alleged in it. Although it is sometimes permissible to supplement the allegations contained in the founding affidavit, the main basis of the application is the allegation of facts stated therein.

A number of decisions of the courts in this country have stressed this position – see Moven Kufa & Anor v The President of The Republic of Zimbabwe & Nine Ors CC22-17 and the authorities cited on pages 14-15 of the cyclostyled judgment.

More to the point are the remarks of McNALLY JA in Keavney & Anor v Msabaeka Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S). At page 608 C, the learned judge cited with approval the remarks by MULLINS J in Nieuwoudt v Joubert 1988 (3) SA…, that:-

“The purpose of pleadings is to define the issues and to enable the other party to know what case he has to meet.”

The learned judge further cited with approval the remarks of MILNE J in Kali v Incorporated General Insurance Ltd 1976 (2) SA 179 (D)…, that:

“A pleader cannot be allowed to direct the attention of the other party to one issue; and then at the trial attempt to canvass another.”…,.

Indeed, the learned judge went further to suggest that the failure to plead the real defence or cause of action may suggest shear idleness or incompetence on the part of the legal practitioner, or a deliberate and unconscionable attempt to avoid attracting an onus or burden of adducing evidence or, lastly, that the defence was an afterthought.

The above sentiments apply with equal force to this matter.

The appellant approached the court applying for interdictory relief. Indeed, at that stage, there was a mere threat of occupation by the first respondent. No spoliation had taken place. This is common cause. The provisional order was granted on that basis. What therefore fell for determination on the return day was whether the provisional order should be confirmed. As already noted, it could not have been confirmed once the appellant had accepted that the land had indeed been lawfully acquired.

It was not permissible, on the part of the appellant, and on the same papers, to introduce the issue of spoliation later in the proceedings and seek to obtain that relief in place of the interdictory relief initially prayed for….,.

The appellant's argument is that the issue that fell for determination on the return day was whether or not spoliation had occurred.

The inevitable corollary of that argument is that an interim order of spoliation was granted in terms of the provisional order issued by TAKUVA J and that before MUSAKWA J the issue that fell for determination was its confirmation.

Clearly, this does not accord with the law.

In any event, counsel for the appellant did concede, before this Court, that at the time the founding papers were drawn and commissioned, the act of spoliation had not taken place.

ALLEGATION OF SPOLIATION AROSE AFTER GRANT OF PROVISIONAL ORDER

The allegation that spoliation had taken place only arose after the grant of the provisional order. It is common cause that the first respondent, in his opposing papers, disputed having taken occupation and that the alleged act of spoliation formed the subject of separate proceedings for contempt of court which remain pending before this Court.

I agree with counsel for the first respondent that the course open to the appellant, after the alleged spoliation had taken place, was to launch a new application for spoliation and not seek to substitute spoliation in place of the interim interdict that had been granted on the faulty basis that the offer letter issued to the first respondent was not a legally binding document.

Appealed
SC23-18 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

The Master Risk Participation Agreement (MRPA) further provides that the Acceptance Agreement would prevail over it. However, the Acceptance Agreement was not produced by the appellant and it was not part of the appellant's case that the Acceptance Agreement contained instructions requiring the appellant to ensure that payments were made offshore.

HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP
Ruled By: CHIGUMBA J

I am further persuaded by the submissions made on behalf of the plaintiff that the defendant has no defence in terms of the pleadings filed of record. It is trite that the 'object of pleadings is to define the issues'. It is also trite that 'the parties will be kept strictly to their pleas where any departure ...

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

It is trite that an application stands or falls on its founding affidavit. See Fuyana v Moyo SC54-06; Muchini v Adams Ors SC47-13; and Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd Ors SC80-06. In cases where the headings on the cover of an application tell one thing and the contents ...

Appealed
SC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

An application must be disposed of on the basis of the founding affidavit.

HH477-14 : KUKURA KURERWA BUS COMPANY vs SIMBA MUKWENA and TRUST SINANI and RAYMOND CHIGWAZE and MESSENGER OF COURT, MUTARE
Ruled By: MATHONSI J

It is trite that an application stands and falls on the founding affidavit and that evidence cannot be led from the Bar.

HH119-15 : ALSHAMS GLOBAL LIMITED vs INTERFIN BANK LIMITED and SAVANNAH TOBACCO (PRIVATE) LIMITED
Ruled By: MAKONI J

The import of Rule 67(c)…, is that the court may permit the plaintiff to supplement his affidavit with a further affidavit in response to issues raised by the defendant which the plaintiff could not reasonably be expected to have dealt with in his founding affidavit.

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS
Ruled By: MATHONSI J

I am aware that an application stands or falls on its founding affidavit, which, in the present case, seeks only a declaratory order I am disinclined to grant. See Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67…,. Considering that this is a labour dispute in which equity demands that it ...

HH130-15 : ISRAEL CHIRANGWANDA vs ZIMBABWE LEAF TOBACCO and ADVOCATE DAVID OCHIENG
Ruled By: MAKONI J

Counsel for the respondent contended that the issue of illegality was not raised before the Arbitrator…,. It was also not raised in the founding papers….,. I agree with counsel for the respondent that…, most of the issues that he raised were fresh matters which were not alluded to in the founding affidavit and which were not before the arbitrator.

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU
Ruled By: TAKUVA J

I am aware that the applicant has filed what he called an “answering affidavit” in which he rather belatedly stated that he was despoiled on 12 June 2016. In my view, the applicant's case must stand or fall on the basis of the affidavits. In casu, the founding affidavit, and the certificate of urgency, do not give the ...

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU
Ruled By: TAKUVA J

An answering affidavit is provided for in court applications in Rule 234 of the rules and not in chamber applications. In terms of Rule 235, after an answering affidavit has been filed no further affidavits may be filed without the leave of a court or a judge….,. Further, the applicant filed his answering affidavit after the ...

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Further, the court a quo certainly misdirected itself on a point of law in finding that the appellant's witness should have produced authority to represent it in court. This is not a requirement at law. A witness needs not produce any authority as they are coming to testify or give evidence on facts pertaining to the matter, which facts are in ...

HH801-15 : ENNOCENT T. MAPOSA vs CHRISTOPHER MATABUKA
Ruled By: CHITAKUNYE J and MWAYERA J

The appellant could not explain away the consent to judgment he signed and his own admission as contained in paragraphs 2 and 5 of his founding affidavit.

HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE
Ruled By: ZHOU J

The submission that the cause of action in the application for joinder has now prescribed must be rejected for two reasons; (i) Firstly, it was only raised from the bar during argument. The first respondent's opposing papers do not seek to rely on that ground....,.

HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MATHONSI J

I have deliberately quoted extensively from the applicants' founding affidavit to demonstrate the case which the first respondent was called upon to answer to because, at the hearing of the application, the applicants sought to advance a completely different case - a case not borne by the papers before me…,. It is a principle of our law ...

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

A matter stands or falls on its founding papers…,. The applicant's application is deficient in many respects….,.

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR
Ruled By: MAWADZE J

It is trite that an application falls on the founding affidavit.

HH168-15 : ARAFAS MTAUSI GWARADZIMBA vs AKA JULIE PANAGIOTA MERCURI N.O. and THE MASTER OF THE HIGH COURT N.O.
Ruled By: MWAYERA J

The purpose of an answering affidavit, among others, is to answer issues raised by the opposition and such evidence cannot be disregarded. In answering affidavits, the applicant is accorded an opportunity to answer issues raised in opposition papers.

View Appeal
CC22-17 : MOVEN KUFA and VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE and OTHERS
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

The appellants, as applicants, made it clear that they were bringing the application in terms of section 18(9) of the former Constitution. The first applicant stated that, as a taxpayer, he is prejudiced by such unlawful appointments, and, as a citizen of Zimbabwe, he is entitled to demand that the Constitution be respected and that the rule of law be upheld. The second applicant, on the other hand, indicated that it is a Trust established by notarial deed whose objective is to promote democracy, transparency and accountability to ensure that institutional structures and processes uphold the rights of citizens….,.

Asked by the court to state precisely in terms of what provision of the Constitution the appellants had approached the court, counsel for the appellants told the court that they had done so pursuant to the provisions of section 18(1)(a) of the Constitution and that this section, to some extent, restores the actio popularis….,.

THE APPLICATION WAS PREDICATED ON SECTION 18(9) OF THE FORMER CONSTITUTION

In their founding papers, the appellants made it clear in the court a quo that they were bringing the application in terms of section 18(9) of the former Constitution of Zimbabwe. That section provided:-

“Subject to the provisions of this Constitution, every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.”

As already noted, the Attorney General, acting for the first and second respondents, raised certain objections in limine in the opposing affidavit on the applicants' cause of action. He stated, in paragraph 5 of the affidavit:-

“5 1^st applicant alleges in paragraph 1 of his founding affidavit that the right he possesses is his right to protection of the law as enshrined in section 18(9) of the Constitution. In my respectful view that particular provision does not, in itself, confer the kind of right 1^st applicant maintains he is possessed of in this application. That provision merely confers the right to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law in the determination of this existence or extent of his civil rights or obligations. As 1^st applicant's application is predicated on the existence of a right the determination and extent of which are not required to be adjudicated upon, he cannot be possessed of a right protected in terms of section 18(9) of the Constitution. As such, the 1^st applicant has not established the basis of the right he claims to be possessed of, and, as such, he has no locus standi to bring this application.”

In his answering affidavit, the first appellant remarked:

“Section 18(9) of the Constitution allows me to be heard by an independent and competent court, such as this Honourable Court, to determine the existence and extent of any civil rights and obligations. I assert the existence of a right to a lawfully constituted Government, and that I am entitled to be heard by this Honourable Court, which must determine whether such a right exists, and, if so, the extent of that right. The right that I claim arises out of the fact that the Constitution is the Supreme law of the land, and, its infringement gives the right to any citizen affected by such infringement to seek redress…,.”

In oral submissions before this court, counsel for the respondents argued that both appellants had not alleged a right in respect of them which had been violated and that section 18(9) of the Constitution was merely an enactment of a bundle of procedural rights which relate to the private individual to whom the Administrative Justice Act applies.

In response, counsel for appellants stated, for the first time, that the appellants had approached the court, not on behalf of others, but on their own behalf, in terms of section 18(1)(a) of the Constitution, which provides that every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law.

AN APPLICANT STANDS OR FALLS BY HIS FOUNDING AFFIDAVIT

The position is now settled that an applicant stands or falls by his founding affidavit and the facts alleged in it. Although it is sometimes permissible to supplement the allegations contained in the founding affidavit, still the main foundation of the application is the allegation of facts stated therein.

In Movement for Democratic Change v Minister of Justice, Legal and Parliamentary Affairs and Others 2007 (2) ZLR 1 51, this court (per CHIDYAUSIKU CJ) stated:-

“It is now settled law that in a court application the founding affidavit in support of the application sets out the applicant's cause of action. The applicant's case stands on the founding affidavit. Consequently, it can never be over-emphasised that care must be taken by legal practitioners representing applicants when drafting the founding affidavit. The founding affidavit must succinctly set out the cause of action. The cause of action should be clearly stated so that the respondent is left in no doubt as to what case he has to meet and the relief sought. The relief is usually contained in the draft order which forms part of the application. It is equally important that the opposing affidavit be sufficiently clear so that it informs the applicant, and the Court, of the defence the respondent is raising.”

In Austerland (Pvt) Ltd v Trade and Investment Bank Ltd and Others SC92-05, this court stated:-

“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 informs the respondent of the case against the respondent that the respondent must meet. The founding affidavit sets out the facts which the respondent is called upon to affirm or deny. See Pountas' Trustee v Lahamas 1924 WLD 67 at 68.”

In Hiltunen v Hiltunen 2008 (2) ZLR 296 (H) 301B, MAKARAU JP…, stated:-

“It is trite that in application proceedings, it is to the founding affidavit that the court will look to for the cause of action being alleged by the applicant and the evidence that the applicant has to sustain such a cause of action. Hence, as has been said in numerous cases before, an applicant must stand or fall by his founding affidavit and the facts alleged therein because those are the facts which the respondent is called upon either to affirm or deny. See Mangwiza v Ziumbe NO & Another 2000 (2) ZLR 489 (S) at 492 D-F.”

In Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1990 (1) ZLR…, SMITH J remarked:-

“When, as in this case, the proceedings are launched by way of notice of motion, it is to the founding affidavit that the judge will look to determine what the complaint is. As was pointed out by KRAUSE J in Pountas' Trustee v Lahanas 1924 WLD 67 at 68 and has been stated in many other cases:

'…, an applicant must stand or fall by his petition and the facts alleged therein and that, although sometimes it is permissible to supplement the allegations contained in the petition, still, the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon either to affirm or deny.'”

In Milrite Farming (Pvt) Ltd v Porusingazi & Ors HH82-10 the High Court stated:-

“The basic rule pertaining to application proceedings is that the applicant's case stands or falls on averments made in the founding affidavit and not upon subsequent pleadings. The rationale for the rule is quite clear. It is to avoid the undesirable effect of litigation assuming a snowballing character, with fresh allegations being made at every turn of pleadings. Thus, the fresh allegation contained in the answering affidavit must be ignored, leaving the same cause of action and substantially the same facts in both the first and second applications.”

APPELLANTS CAUSE OF ACTION IN FOUNDING PAPERS NOT ESTABLISHED

The facts of this case show that although the gravamen of the complaint by the appellants was that the respondents had acted unlawfully, they elected to found their cause of action on section 18(9) of the former Constitution. That section affords every person the right to be afforded a fair hearing within a reasonable time by an independent and impartial court or authority. However, there was no suggestion, nor was it the appellants' case, that they had not been afforded a fair hearing within a reasonable time by an independent and impartial court. They did not identify any other specific rights enshrined in the Constitution that they alleged had been violated. It is difficult to appreciate how the appellants could seek constitutional relief without grounding their application on a particular right they alleged had been violated.

Only during oral submissions before this court did counsel for the appellants suggest that they were approaching the court pursuant to section 18(1)(a) of the former Constitution. However, it was not indicated how that right, enshrined in the Constitution, and in respect of which they sought protection, had been violated.

DISPOSITION

In the circumstances, I am satisfied that the cause of action, as pleaded, was never proved and that the founding papers did, in fact, contradict the ultimate relief prayed for.

As stated by MALABA DCJ in Moyo & Others v Zvoma NO & Another 2011 (2) ZLR 345 (S)…, the matter:-

“Ought to have been dismissed or granted on the grounds on which the applicants made it.”

In the result, the application before the court a quo, having been fatally defective, the appeal before this court should equally fail.

In light of the above conclusion, it becomes unnecessary to consider the issue of locus standi or to interpret Article 20.1.6 of the 8^th Schedule to the former Constitution.

In the result, the appeal is dismissed with no order as to costs.

CC14-19 : GARIKAI KAMANGA vs PRINCE EDWARD SCHOOL – SDA
Ruled By: MALABA CJ and GARWE JCC and MAKARAU JCC

It is trite that an application stands or falls on the founding affidavit. The following is stated in HERBSTEIN Van WINSEN: 'The Civil Practice of the High Courts of South Africa' 5ed…,.: “The general rule which has been laid down repeatedly is that an applicant must stand or fall by the founding affidavit and ...

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

An application stands or falls on its founding affidavit.

CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

A constitutional matter must be specifically pleaded and motivated in the founding affidavit. A party is not permitted to make his, her or its case through oral argument at the hearing of the constitutional application. It is an established principle of the law that the other party must not be left in any doubt as ...

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

Counsel for the first respondent took issue with the fact that the applicant's case, as argued before the Court, was premised on a report which was contained in a set of documents that had not been placed before the Court. The report had not been served on the first respondent within seven days of the declaration of the result of the Presidential election in respect of which the application was presented in terms of section 93(1) of the Constitution.

In that regard, counsel for the first respondent submitted that the application had to stand on its founding affidavit. It failed to do so.

It was counsel for the first respondent's argument that the applicant's challenge to the validity of the Presidential election result should have been pleaded with specificity and particularity. It had to be pleaded on the basis of all relevant and admissible evidence that would have been placed before the Court within the seven days stipulated by section 93(1) of the Constitution….,.

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents submitted that the applicant's case ought to have been pleaded with sufficient clarity based on primary evidence. He argued that the applicant could not rely on responses from the Zimbabwe Electoral Commission, the Chairperson of the Zimbabwe Electoral Commission and the Chief Executive Officer of the Zimbabwe Electoral Commission to argue his case on the date of the hearing. He stressed the principle that an application stands or falls on its founding affidavit....,.

A proper interpretation of the provisions of Rule 14(4) of the Constitutional Court Rules confirms the principle that an application stands or falls on the facts or averments set out in the founding affidavit at the time the application is filed and served.

The sub-rule makes it clear that only documents which verify the facts or averments set out in the founding affidavit shall accompany the affidavit. As the documents verify the facts or averments set out in the founding affidavit, they form part of the founding affidavit. The founding affidavit must be construed as including all such documents.

Appealed
SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

A reading of the papers on record shows that nowhere in her founding papers was the allegation made by the appellant that the second respondent had unilaterally pledged his half share of the property as security for the debt that he had incurred - and without the appellant's consent. The appellant's grounds of appeal in ...

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

The law is settled that an application is decided on the basis upon which it is made. It stands or falls on its founding affidavit. In Muchini v Elizabeth Mary Adams and Others 2013 (1) ZLR 67 (S) Ziyambi ja opined…,: “It is trite that an application stands or falls on the averments made in the founding affidavit. See Herbstein ...

HH410-17 : RONALD JOHN COUMBIS vs KINGDOM BANK LIMITED
Ruled By: CHIWESHE JP

The point in limine raised by the respondent with regards section 213 of the Companies Act is not raised in the opposing affidavit but only in its heads of argument. It is not properly before the court and I am unable to relate to it in the present application.

HH494-15 : THE SHERIFF OF THE HIGH COURT vs SHEPHARD MAYAYA and DAPHNE MAKOTORE and TURNALL HOLDINGS LIMITED
Ruled By: MUREMBA J

In trying to determine whether the household goods that were attached belong to the claimant some problems arise. The first problem is that there is no evidence whatsoever to show that these goods belong to the second claimant. Receipts would have assisted. In her two affidavits the second claimant does not explain why she does not have ...

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

To quash the respondents' second leg of their second point in limine, counsel for the applicant sprung an argument that neither formed part of its grounds of impeachment in the founding affidavit nor about which any notice had been given. He argued that it was a point of law which he could raise for the first time ...

HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

The applicant relied on paragraph 11(b) of the consent order. He, however, did not aver, in his founding or answering affidavit, that the parties complied with paragraph 12 of the same. The paragraph is critical to the present application in a number of respects.

HH84-09 : LIZZIE MUKUMBA vs THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER OF POLICE
Ruled By: KUDYA J

The plaintiff is bound by her pleadings and cannot be granted the figure of US$10,000= which she sought in her evidence in chief without first amending her pleadings.

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

The issue of a top-up amount is not mentioned anywhere in the pleadings. It was only raised during the hearing in court.

HMA54-18 : IN RE: WASHINGTON FUNGISAI MUDIMBU vs X
Ruled By: MAWADZE J

This matter was brought to me in terms of section 9(6) of the Guardianship of Minors Act [Chapter 5:08] by the magistrate sitting as the Children's Court at Masvingo. After I had ploughed through the papers submitted by the magistrate I raised a number of issues with the presiding magistrate. It may be prudent to quote the query ...

This matter was brought to me in terms of section 9(6) of the Guardianship of Minors Act [Chapter 5:08] by the magistrate sitting as the Children's Court at Masvingo.

After I had ploughed through the papers submitted by the magistrate I raised a number of issues with the presiding magistrate. It may be prudent to quote the query I raised. It reads as follows;

“1. In terms of what provision of the Guardianship of Minors Act [Chapter 5:08] was this order granted.

2. If it is section 9(1) of the said Act, did the trial magistrate have jurisdiction to grant such an order where one of the parents is alive.

3. Why is the affidavit of one Delight Chikohomero written in ink where additional information is added? Is that proper for court records. Who added that information as the handwriting is patently different from the deponent's signature.”

The response by the learned magistrate makes various concessions.

This matter is an application for guardianship in terms of the Guardianship of Minors Act [Chapter 5:08]. The background facts are as follows;

The record of proceedings consists of an affidavit by the applicant, one Washington Fungisai Mudimbu; an affidavit purportedly by the minor's mother, one Delight Chikohomero; a copy of the applicant's passport which is hardly legible; a copy of the minor's birth certificate; certificate of death of the father of the minor; and an illegible copy of the passport of the minor's mother, Delight Chikohomero.

The applicant regards the minor as a nephew as he is a son to his late brother who passed on on 23 November 2004. The applicant's founding affidavit is not of much help. According to the applicant, the minor's mother is married to another man and is now resident in Botswana.

The applicant avers that on an unspecified date the minor was left in the custody of the applicant. The applicant alleges that, on that basis, he has become what he calls “a de facto guardian.” The applicant wrongly avers that since the father of the minor is late and its mother is domiciled in Botswana the minor has no natural guardian. Lastly, the applicant states, without any further elaboration, that it is in the best interests of the minor for him to be awarded guardianship. The main reason proffered by the applicant is that he is the closest available relative of the minor and that he is currently meeting the material needs of the minor who is in his custody.

The applicant does not give any other detail about himself or why he is a fit and proper person to be awarded guardianship.

The affidavit purportedly by the minor's biological mother raises serious ethical questions and puts into doubt as to who authored it. Its authenticity is clearly in doubt. Some important information is written in ink as additional information and is not countersigned. The handwriting is manifestly different from the deponent's signature or handwriting. The magistrate was unhelpful in explaining all this. In order to illustrate this point, I shall reproduce this affidavit and put the additional information written in ink in italics. It reads as follows;

“I, Delight Chikohomero, do hereby make oath and state that:-

1. I am the biological mother of the minor child, Tadiwanashe Blessing Linnel Mudimbu (born 18 August 2004). I attach a copy of my identity document as Annexure “D”.

2. The minor child's father, Blessing Taremeredzwa Mudimbu, died on 23^rd November 2004.

3. Since the death of the minor child's father, I have relocated to Botswana where I am married to another man and have started another family.

4. I left the minor child under the care of his uncle, Washington Fungisai Mudimbu, who is still in charge of the child's affairs to date. The child had no natural guardian nor tutor testamentary since his father is deceased and I have relocated to another country.

5. I have no objection to the court formally awarding guardianship to the minor child to Washington Fungisai Mudimbu as I consider it to be in the best interests of the child. The child lives with Washington Fungisai Mudimbu who cares for him as though it was his own child. Washington Fungisai Mudimbu enrolled the child in boarding school at Mutambara High School where he takes care of all the child's need.

Wherefore I pray for an order in terms of the Draft Order.”

As already said all what is in italics is additional information written in ink and not counter-signed. The handwriting is clearly different from that of the deponent as appears on her signature.

The question which lingers in the mind is who made this additional information and some cancellations in ink. Why was this not counter signed or a proper affidavit redone? Does this not put into doubt the authenticity of this affidavit?

A Magistrates Court is a court of record and all documents filed should be clear and un-altered.

I do not wish to cast any aspersions on anyone but I am alive that our courts are not immune to fraudulent practices. Fake documents and/or orders have been generated in our jurisdiction. There is no plausible reason why such a poorly drafted affidavit was deemed acceptable by the magistrate who handled this matter. It would be a dereliction of duty if I am to also endorse such an anomaly especially where the interests of a minor child are involved and the rights of the biological mother are at stake.

Another anomaly I noted is that the proceedings were held in a very perfunctory manner. The record of proceedings does not inspire any confidence at all. Indeed, advertisements were placed in both the Government Gazette and the Mirror newspaper but no meaningful inquiry was held by the magistrate. All what is recorded is as follows;

“Mr Hwacha – I have filed in the necessary papers. I have checked the record and there is no objection to the application. I therefore pray for the confirmation of the Draft Order.

Ruling

Draft order confirmation as final.”

These are the proceedings I am obliged to review!

In terms of section 9(4) of the Guardianship of Minors Act [Chapter 5:08] the court should hold an inquiry.

In the case of re: Chikombingo & Ors 2014 (1) ZLR 65) (H)…, I had this to say;

“In terms of section 27 of the Children's Act, after holding of the inquiry and granting the order, the Children's Court is enjoined, within seven days, to submit the record of proceedings to the High Court for review. Such a review can only be meaningful where a proper record of proceedings has been kept.

In re: Gonyora 2001 (2) ZLR 573 (H) it was pointed out that the record of proceedings of a Children's Court which is submitted for review (whether in terms of the Guardianship of Minors Act [Cap 5:08] or the Act [Cap 5:06] must include reasons for the court's decision. The reason for this is clear. This court cannot carry out its review powers to determine whether the proceedings were in accordance with real and substantial justice where there is no record of proceedings and no written reasons for the decision made. In the absence of a proper inquiry, the record of proceedings and the reasons for the order made, this court is hamstrung in deciding whether the Children's Court has taken into consideration the principles that bear on the child's best interests.”

In casu, I am equally hamstrung to assess the propriety of the decision taken by the magistrate.

The most glaring misdirection in this matter is that the magistrate had no jurisdiction to grant the order in issue.

The powers of the magistrate are clearly spelt out in section 9(1) of the Guardianship of Minors Act [Chapter 5:08] which provides as follows;

“9. Appointment of Guardian by Children's Court

(1) Without prejudice to the rights, powers and privileges of the High Court as the upper guardian of the minor children, and the Master in terms of section 74 of the Administration of Estate Act [Cap 6:01], the Children's Court may, on application in terms of this section, appoint a fit and proper person to be the guardian of a minor who has no natural guardian or tutor testamentary.”…,.

The minor child in this matter has a biological mother, who, in the absence of the late father, is the natural guardian.

Secondly, the magistrate has not explained at all why the applicant is deemed to be a fit and proper person. The applicant's affidavit does not deal with this issue at all and no inquiry was held to satisfy this requirement. This court, as the upper guardian of minor children, cannot say with certainty whether the applicant's appointment as the minor's guardian is in the interest of the said minor child and whether the applicant is a fit and proper person.

In the result, I am inclined to invoke the powers bestowed upon me in terms of section 28 of the High Court Act [Chapter 7:06] as read together with section 9(7) of the Guardianship of Minors Act [Chapter 5:08]. I shall proceed to set aside the order made by the magistrate as it is ultra vires the powers of the magistrate. The applicant is at liberty to seek a similar order in an appropriate court taking into account the concerns I have raised.

It is ordered that, the order by the magistrate be and is hereby set aside.

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

The court was asked to bear in mind…,. that it is a trite rule of procedure that an applicant bringing a matter by way of court application must make his or her case on the founding papers. The court was referred to the following cases as authority for this proposition: Mauberger v Mauberger 1948 (3) (SA) 731 (C)…,; Shepherd v ...

HH504-16 : GODFREY CHIPARAUSHE and 60 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND and MR S MTSAMBIWA
Ruled By: MATANDA-MOYO J

This is an opposed application where the applicant seeks that the first respondent be declared to be in contempt of High Court order in HC10776/13. The applicant also seeks that should the first respondent fail to comply with paragraphs(e) and (f) of the judgment in HC10776/13 within seven days of the granting of this order, ...

In terms of paragraphs(e) and (f) of HC10776/13 this court ordered the following;

“(e) IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to cause the determination of the applicants' basic annual salary for purposes of the calculation of applicants pensionable emoluments, from the date of this judgment onwards, in accordance with the TSSPF Rules, and that, this obligation shall be discharged, in full, within (90) ninety days of the date of this order.

(f) CONSEQUENT TO THE ABOVE DECLARATION TO THE ABOVE DECLARATIONS, TRIANGLE is hereby directed, within (90) ninety days of this order, to recommence making its contributions, and to deduct the applicants' contribution for onward transmission to the TSSPF, towards the costs of providing benefits towards the applicants in terms of the TSSPF's rules as determined by the TSSPF's actuary, and approved by the TSSPF Trustees, EXCLUDING any arrears which arose between January 2009 and the date of this order until such time as the TSSPF has been terminated in accordance with the TSSPF Fund Rules.”

Counsel for the first and third respondents raised points in limine.

(i) Firstly, he attacked the validity of the founding affidavit.

It was his submission that such affidavit was the same affidavit filed in HC11975/15, and, as such, cannot be admitted before these proceedings.

Such point was raised for the first time in the first and third respondents' heads of argument. The applicant took issue with that. It is the applicant's contention that such challenges should have been initially taken in the opposing affidavits. This, the applicant's counsel argued should have been done so as to accord the applicants an opportunity to deal with the issue in their answering affidavits.

The question of validity of a founding affidavit is a legal point and not a factual one. Factually the affidavit speaks for itself. The court can simply look at the founding affidavit and ascertain the facts. Its validity becomes a legal point.

It is trite that legal points can be raised at any time during the proceedings.

The issue of the validity of the founding affidavit was raised in the first and third respondents' heads of argument affording the applicant to deal with the issue in their own heads. See Barkhuizen v Napier (CCT 72105) (2007) ZACC 5 or 2007 (5) SA 323 (CC).

On page 8 of the proceedings is the signature page of the affidavit. It is apparent the affidavit was sworn to in Triangle on 30 November 2015. That affidavit was the one used in the application in HC11975/15 which application was withdrawn on 18 December 2015. The affidavit of the 30^thofNovember 2015 did not include the third respondent. The third respondent was then added after the 30^thof November 2015 in the present case. It follows that the founding affidavit was never commissioned. No case was however made against the third respondent.

It is trite that an application stands or falls on its founding affidavit. No case was made against the third respondent in the applicants' founding affidavit. See Bowman N.O. v De Souza Roldao1988 (4) SA 326 T…, where the court said:

“In limine, Mr Zeiss, who appears for the respondent, argued that he has not made out a case in the founding affidavit to entitle him to any relief in terms of the notice of motion; he submits that there is a material and fatal lacuna in the founding affidavit which cannot be cured.”

Generally speaking, an applicant must stand or fall by his founding affidavits, he is not allowed to make out his case or rely upon new grounds in the replying. See for example, Director of Hospital Services v Ministry 1979 (1) SA 626 (A)…, where DIEMANT JA said the following:

“When, as in this case, the proceedings are launched by way of notice of motion, it is to the founding affidavit which a Judge will look to determine what the complaint is…,.”

The founding affidavit should contain all facts upon which an applicant relies in seeking relief. Courts will not normally allow or permit a mere skeleton of a case sought to be supplemented in an answering affidavit.

It is trite that all facts and the basis of seeking a relief must be established in the founding affidavit. See also Titty Bar and Bottle Store (Pty) Ltd v ABC Garare (Pty) Ltd and Ors 1974 (4) SA 362 (T); Pountas' Trustees v Lahanas 1924 WLD 67; Austerlands (Pvt) Ltd v Trade and Investment Bank & 2 Ors SC92-05.

The applicants' founding affidavit fails to allege any conduct by the third respondent warranting the relief sought. Of major concern is that certain additions were made to the founding affidavit but it is clear that such changes were not countersigned by the applicants.

When introduction of the third respondent as a party to these proceedings was done, such affidavit with those changes was not commissioned by a Commissioner of Oaths. Such founding affidavit fails to meet the requirements of a valid affidavit. I am satisfied this matter cannot proceed on the basis of an invalid founding affidavit and on the basis of an affidavit which fails to disclose the facts relied upon to obtain the relief sought.

The supporting affidavits, as the word “supporting” meaning, entails buttressing a founding affidavit properly before the court. Once the founding affidavit cannot stand so do the supporting affidavits.

I have not called the lawyer who prepared the papers to account and therefore I shall not deal with allegations raised against such lawyer.

In the result, the applicants' founding affidavit is invalid and the point in limine taken by counsel for the first respondent is well taken. In the result, the application is dismissed with costs.

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which ...

The standard of proof in civil proceedings is proof on a balance of probabilities.

What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which of their versions of events is more likely to be true. In other words, which version is more believable, or most likely to have transpired, than the other?

It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's, or vice versa. In making this determination, we look at the pleadings, at the documentary evidence, at what the parties' representatives said and did when they were in the witness stand, and, finally, at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.

The plaintiff issued summons against the defendant on 24 March 2014 in which it claimed payment of USD$48,000= being the replacement value of soya beans that were lost while in the defendant's custody, interest at the prescribed rate, and costs of suit.

The defendant denied entering into any agreement with the plaintiff for the transportation of soya beans. It admitted that the parties entered into an agreement for the transportation of seed maize which agreement was mutually terminated by the parties.

The matter was referred to trial for the determination of the nature of the agreement between the parties; whether such agreement was terminated; whether the defendant gave instructions for the loading of a truck with soya beans; and, consequently, whether the defendant is liable for the loss suffered by the plaintiff of thirty tonnes of soya beans valued at USD48,000=.

It is common cause that the parties signed a 'Load Confirmation and Rate Agreement' on the 28^th of November 2011 in terms of which the defendant agreed to bear the risk for any loss or damage to the goods carried by it and indemnified the plaintiff against any claims.

The parties agreed that any changes to the contract would be reduced to writing and that the defendant could not subcontract without the express written consent of the plaintiff. It was a term of the contract that collection of the load was confirmation, by the defendant, of the terms and conditions of the parties' contract.

It is common cause that a load of soya beans, as opposed to seed maize, was loaded onto a thirty tonne truck on behalf of the plaintiff. It is common cause that the truck which accepted the plaintiff's load went missing and that the representative of the defendant assisted the plaintiff's representative to search for the truck.

(i) Was the agreement between the parties mutually terminated?

(ii) Was the truck that loaded soya beans a truck which had been sub-contracted by the defendant with the plaintiffs express consent - written or otherwise?

(iii) Did the truck load thirty tonnes of soya beans valued at USD$48,000=, or less or more, or maize seed instead of soya beans?

(iv) When the defendant's representative offered to and did assist the plaintiff's representative to look for the misappropriated truck, was this an acceptance of liability on the part of the defendant?

The contemplation of the possible answers to these questions will assist the court to assess the probabilities in this case and to decide which of the parties' versions is supported by the preponderance of probabilities.

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but, if the probabilities are equal it is not.”

See Milner v Minister of Pensions1947 2 All ER 372…, and Thulisani Dube Nyamambi v Bongani NcubeHB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC)the court said that:

“…,. In a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book, SA Law of Evidence4ed…, state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.''

In JOUBERT, The Law of South Africa, Vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.''

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said.

The evidence shows that the parties willy-nilly and haphazardly changed the terms of their contract verbally, and not in writing. This makes it difficult to assess whether the defendant is being candid when it says that the contract was 'mutually' terminated verbally. It is equally difficult to assess whether indeed the defendant sub-contacted to a third company as alleged by the plaintiff because neither the plaintiff's consent to such a course of action, nor the alleged sub contract itself, is in writing.

This case boils down to a question of the plaintiff's word against the defendant's.

The probabilities are evenly balanced. Unfortunately, in order for the plaintiff to win its case, the preponderance of probabilities must be tilted in its favor.

In this case they are not.

The evidence does not show that the defendant had a hand in giving loading instructions to Seed Co. The evidence shows that it was the plaintiff which faxed loading instructions to Seed Co. A copy of this fax would have assisted the court to determine who gave the instruction, which company was authorised to load, the registration number of the truck, the name of its driver and his identity number.

The plaintiff said that this information was supplied to it by the defendant. It may very well have been. There is insufficient evidence that the defendant supplied this information to the plaintiff pursuant to a subcontract. The terms of the sub-contract were not made clear to the court. There is insufficient evidence, in the absence of the loading instructions, as to the nature of the goods which were loaded onto the truck in question.

Was it soya beans or maize seed? Was it thirty tonnes or less, or more?

It is anybody's guess because there was no evidence placed before the court on which it can base any findings in answer to those questions. It is highly probable that the defendant's version is correct, that, as a player in the transport industry, the defendant referred the plaintiff to another transporter when it was unable to load the plaintiff's goods. If the defendant was unable to load the plaintiff's goods, then, in terms of the plaintiff's own contract, the defendant was not bound by the terms of the contract and not liable to indemnify the plaintiff against loss or damage.

There is no evidence that, even if it were found that the defendant was authorized, verbally, by the plaintiff to sub contract, the terms of the plaintiff and the defendant's initial contract would also be binding on the defendant as a subcontractor. No contract between the defendant and the third party was alluded to, produced, or had its terms, if they were verbal, placed before us.

We come to the inescapable conclusion that the plaintiff did not manage to discharge the onus on it to prove its case on a preponderance of probabilities.

It is more probable that the plaintiff was the victim of fraud, and that, because the alleged fraudsters were referred to it by the defendant's representatives, the plaintiff wishes to hold the defendant to account. The plaintiff cannot do so on the basis of the evidence which it placed before the court. The cause of action is not founded. The evidence before the court is inadequate, and insufficient, to tilt the probabilities in the plaintiff's favor.

For these reasons, the plaintiff's claim is dismissed with costs.

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry 1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO Anor 2000 (2) ...

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SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

Counsel for the appellant, having noticed the difficulty the appellant's case was meeting on appeal, argued that the parties entered into an oral agreement. With respect, this was never alleged before the court a quo when the parties actually gave evidence and it is not alleged as a ground of appeal.

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

At the commencement of the trial counsel for Mr and Mrs Gurupira took an objection in limine. He submitted that the trial should not proceed. He said it was a novel procedure to seek rescission by way of a trial action. By law and by practice, rescission of judgment was always via the application procedure. ...

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS
Ruled By: MAWADZE J

While our legal system allows unrepresented litigants to approach the High Court in civil matters, this case brings into focus the need, in some cases which involve intricate issues of law, for such litigants to be legally represented. My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant ...

My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant who insisted that he had the experience, knowledge, and confidence to argue his case.

My misgivings arose after I had, with the patience of the biblical Job, ploughed through the applicant's founding affidavit, answering affidavit, and heads of argument but still was unable to appreciate the applicant's case.

The relief sought by the applicant is couched in the following terms:

“IT IS ORDERED THAT;

1. The Resolutions signed on the 1^st of December 2011 by the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Respondents are null and void and have no effect at all.

2. The Resolution signed on 22^nd April 2012 by the 1^st and 8^th Respondents is null and void and has no effect at all.

3. The Constitution used to sit for the meeting of 2^nd November 2011 and 22 April 2012 is null and void and has no effect at all.

4. The 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents pay the costs of the proceedings.”

The application is opposed by all the respondents except the seventh respondent who apparently was not served.

The manner in which the relief sought is couched is so vague that one has to plough through numerous documents filed in order to find out what these Resolutions relate to. To compound the problem, the applicant does not state in what capacities all the nine respondents are being cited.

TOC H Zimbabwe, from the reading of the papers filed, is a non-governmental welfare organization. The applicant, as per his founding affidavit, is a member of TOC H Zimbabwe since 1994 although his membership is currently being disputed by the respondents (respondents hereinafter refer to all but the seventh respondent).

The respondents are members of TOC H Zimbabwe although the positions they hold in that organization are not specified by the applicant.

It is extremely difficult to summarise the facts giving rise to this application. This is so because the founding affidavit does not seek to identify each and every respondent and in what capacity each respondent is joined in this matter. Further, the founding affidavit is vague and embarrassing as it is long, winding, but still not clear in what the applicant's grievances are and what the applicant wants this court to do for him.

Put simply, the cause of action is unclear.

Let me briefly illustrate the point made above by referring to the founding affidavit. The founding affidavit comprises of 8 pages (page 4–11) or 30 paragraphs. Attached to the founding affidavit are Annexures A to V (page 13–55). The answering affidavit covers 10 pages (page 62–72) and further Annexures A to N (page 72–90) are attached. This is clearly improper for the applicant to attach new annexures to the answering affidavit.

In his founding affidavit, the applicant said he was co-opted as a member of TOC H Zimbabwe Executive Committee in July 2010 until he was barred on 2 November 2011 as per the minutes of the meeting held on that date. At this meeting it was resolved that the TOC H Zimbabwe motor vehicle which was registered in the applicant's name, after being purchased in South Africa, should, with immediate effect, be transferred to TOC H Zimbabwe and that the applicant should hand over the said motor vehicle. At the same meeting, it was also resolved that all extension work of TOC H Zimbabwe be suspended with immediate effect and that the applicant and others involved in this outreach and extension voluntary work should be advised accordingly.

As per Annexures C and D, the applicant, on 12 February 2011, attended, as a member, a meeting for TOC H Zimbabwe Management Committee, and, on 24 September 2011, as a member of the National Executive Committee. The applicant then refers to a meeting he said he was not invited on 25 September 2011 by the National Executive Committee but paragraphs 7 and 8 of the founding affidavit are difficult to comprehend just like paragraph 9. The applicant said he took issue with the cancellation of the Management Committee meeting scheduled for 29 October 2011 and that this was the genesis of his problems.

The applicant does not explain the nature of these problems, but, instead, refers to Annexure H in which TOC H Zimbabwe National Chairman, the seventh respondent, Rodreck Phiri, resigned due to personal commitments. On 16 November 2011, the applicant said he received a letter written by the second respondent terminating the applicant's and others' services as extension workers and for the applicant to surrender the motor vehicle registered in his name but belonging to TOC H Zimbabwe.

According to the applicant, this directive violated Article 5E(viii) (see Annexure E page 21 being a copy of TOC H Zimbabwe Constitution). The applicant does not explain how that provision infringes the Constitution or the applicant's rights.

As per Annexures L and M, the applicant protested as regards the directive in the letter dated 16 November 2011. According to the applicant this invited further harassment and psychological abuse. The applicant does not explain who harassed him and in what way. In May 2012 the applicant said he was arraigned before a Harare Magistrate on charges he did not specify but insists they were trumped up charges. Nonetheless, the applicant was convicted and he alleges he has appealed to this court.

The applicant said on 14 July 2012 the second respondent, in HC6417/12, filed an urgent chamber application seeking an order to compel the applicant to surrender the said motor vehicle to TOC H Zimbabwe. The applicant alleges the second respondent used forged documents in support of this application, being annexure A and the National Council Resolution (Annexure N). Apparently this matter was decided by my sister DUBE J against the applicant who was ordered to surrender the motor vehicle to TOC H Zimbabwe.

The applicant said he decided not to appeal against the order granted by DUBE J but to challenge it through this application.

I do not understand how he intends to do that.

As per the founding affidavit, the applicant refers to another TOC H Zimbabwe Constitution, Annexure U…,. It is not clear what issue the applicant raises in relation to this Constitution except to allege that TOC H Zimbabwe is a Private Voluntary Organisation and that it is a juristic person. The applicant further alleges that the first respondent is in contempt of the Constitution as he had breached section 21(i)(a) to (k) of the Private Voluntary Organisations Act [Chapter 17:05]. This provision however deals with the suspension of Executive Committee members by the Minister responsible for administering that Act.

The applicant alleges that the first respondent's term of office expired on 21 November 2011.

In the concluding paragraphs of the founding affidavit the applicant alleges, in a general way, that his rights have been violated (see paragraph 29). It is not clear in what specific manner his rights have been trampled upon. Instead, the applicant said this is the case because the respondents have used forged documents to persecute him and that they are not ascribing to the aims and objects of TOC H Zimbabwe.

As already explained, it is extremely difficult to appreciate the cause of action in this matter. The story narrated in the founding affidavit, while full of sound and fury, clearly signifies nothing which is legally discernable to found a cause of action. It is not therefore surprising that counsel for the respondents has taken a number of points in limine which she believed, if upheld, disposes of this matter.

I now turn to the points in limine raised. The respondents have raised the following points in limine;

(a) That there are material dispute of facts in the application.

(b) The non joinder of TOC H Zimbabwe in these proceedings.

(d) The incompetence of the relief sought in paragraph 2 of the draft order.

I turn to the issues;

Material Dispute of Facts

It is clear that there are indeed several material dispute of facts which cannot be resolved on the papers filed of record.

(i) The dispute relates to the correct Constitution of TOC H Zimbabwe. There are two Constitutions attached to the founding affidavit, Annexure E…, and Annexure U…,. The applicant contends that the Constitution relied upon by the respondents is a forgery and he tenders his own version of the Constitution, being Annexture E.

This position is vehemently disputed by the respondents in the opposing affidavits.

I have no doubt in my mind that the applicant, who attached the two Constitutions to his founding affidavit, was aware at the time of instituting these proceedings that the respondents would challenge the other version of the Constitution. There is therefore a dispute as to which is the applicable version of the Constitution.

(ii) The respondents stated that some of the documents used to support the applicant's case, and are attached to the applicant's founding affidavit, are not authentic documents for TOC H Zimbabwe.

Reference is made to Annexure G…, which relates to minutes of the meeting held by the National Executive Committee on 26 October 2011. The respondents submitted that the minutes are not confirmed or signed by the President of TOC H Zimbabwe. On the other hand, the applicant insists that the document is authentic.

(iii) The applicant has challenged the resolutions allegedly passed by TOC H Zimbabwe alleging that the resolutions were improperly passed and not in accordance with the Constitution of TOC H Zimbabwe.

This is vehemently disputed by the respondents who maintain the resolutions were duly passed in accordance to the applicable Constitution of TOC H Zimbabwe. As an example, the applicant alleges that the National Council Resolution, Annexure R…, is forged. The respondents allege that the resolution was duly passed.

(iv) The membership of the applicant in the National Executive Committee and Management Committee is put into the issue.

Similarly, the allegations of fraud and mismanagement made against the respondents are disputed.

The respondents stated that the applicant would be co-opted to attend the meetings by invitation as a member of TOC H Zimbabwe; see Annexure D…, in which it was stated that the applicant is not an Executive Committee member as provided for by the Constitution and that he had no voting right in the Executive Committee. While the applicant contended that he had no proof of such membership he still insists he is a member of the Executive Committee.

The disputed allegations of fraud and management are not supported by any evidence filed of record. There would be need to lead viva voce evidence in that regard.

The nature of the material dispute of facts is such that I am unable to adopt the approach enunciated in the case of Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 388…, where it was said;

“It is, I think, well established that in motion proceedings a court should endevour to resolve the dispute raised in affidavits without hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned.”

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

I am unable to refer this matter to trial as the papers filed by the applicant cannot stand as summons and declaration. Consequently, the only available option is to dismiss the application.

The Non Joinder of TOC H Zimbabwe

In terms of Rule 87(1) of the High Court Rules, 1971 no cause of action or matter shall be defeated by reason of misjoinder on non-joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

It is common cause that TOC H Zimbabwe is not party to these proceedings. The applicant has sought to rely on Rule 87(1) of the High Court Rules, 1971. The inescapable conclusion however is that the non-joinder of TOC H Zimbabwe is clearly fatal to these proceedings.

I say so because of a number of reasons.

It is clear from the applicant's founding affidavit that TOC H Zimbabwe, which is a juristic person, is intricately involved and implicated in the actions done by both the applicant and the respondents. The Constitution of TOC H Zimbabwe is in issue as well as the propriety of its operations. The resolutions made by TOC H Zimbabwe are put in issue either as illegal or as nullity. I have no doubt that TOC H Zimbabwe has a direct and substantial interest in this application. See Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232…,. While the non-joinder of TOC H Zimbabwe, on its own, may not defeat this application, I am of the view that the cumulative effect of the non-joinder of TOC H Zimbabwe, coupled with the material dispute of facts, is fatal to this application.

Applicant's Locus Standi in Judicio in the dispute or matter

I find no merit in relation to this point in limine. While the applicant's membership in the National Executive Committee and Management Committee of TOC H Zimbabwe has been put in issue there is no evidence placed before the court to show that the applicant is no longer a member of TOC H Zimbabwe. Even if he had ceased or failed to pay subscription fees he would be entitled to challenge adverse decisions made against him by TOC H Zimbabwe.

The Incompetence of the Relief Sought in Paragraph 2 of the draft order

The National Council Resolution passed on 22 April 2012 (Annexure R…,.) authorizes Ponds Phiri, the Acting National Chair of TOC H Zimbabwe, to represent TOC H Zimbabwe in any litigation and to sign any documents on behalf of TOC H Zimbabwe relating to litigation issues or matters.

This is the resolution the applicant seeks, in paragraph 2 of the draft order, to be declared null and void and to be of no effect of law.

This relief sought is incompetent.

The applicant concedes that the said resolution was recognized by this court in a matter dealt with by DUBE J in HC7180/12 wherein the second respondent successfully represented TOC H Zimbabwe in an application against the applicant for transfer of a motor vehicle. The plea of res judicata is available to the respondents. See Wolfenden v Jackson 1985 (2) ZLR 313…,. It is therefore futile for the applicant to seek to challenge the same resolution in these proceedings when the applicant did not appeal against the judgment by my sister DUBE J.

The relief sought by the applicant, in paragraph 2 of the draft order, is incompetent.

In conclusion, I am satisfied that there are material dispute of facts in this matter. The non-joinder of TOC H Zimbabwe in this application adversely affects the applicant's case. The relief sought by the applicant, in paragraph 2 of the draft order, is incompetent. All these points in limine, taken cumulatively or together, are fatal to the application and dispose of the matter. The question of costs should follow the result.

Accordingly, it is ordered that:

1. The application be and is hereby dismissed.

2. The applicant shall pay the costs.

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;“INTERIM RELIEF GRANTEDPending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed ...

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;

“INTERIM RELIEF GRANTED

Pending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;

1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed pending the finalisation of this matter.”

The terms for the final order sought are couched as follows;

“TERMS OF THE FINAL ORDER

1. It is hereby declared that property and assets of the State are immune from the process of judicial attachment by virtue of the provisions of section 5 of the State Liabilities Act [Chapter 8:14].

2. It is hereby further declared that the property and assets appearing hereunder are property and assets of the State, and, consequently, should be released from judicial attachment they were placed under by the 3rd respondent acting pursuant to a writ of execution issued in case No. HC10108/13 on 20 May 2014, on which Notice of Seizure and Attachment was issued on 17th February 2015, that is to say;

2.1 ABT 8829 Isuzu – white Reg 3228.

2.2 ADF 3648 Toyota Hilux- ABH 5021.

2.3. Land Rover Discovery – ACH 1225.

2.4. Mazda Swaraj, staff bus T3500 - CCH 06.

2.5. Mazda Swaraj staff bus T3500 - CCH 02.

2.6. Mazda Swaraj staff bus T3500.

2.7. Tata Mini Bus 1391 GHCW.

3. First respondent to pay the cost of suit.”

The appellant is a Government hospital. In terms of section 18(1) of the Health Service Act [Chapter 15:16] it is capable of being sued and suing in its own right. The relevant section 18(1) of the Health Service Act provides as follows:

“18 Corporate status of Central, Provincial, District and General Hospitals

(1) Subject to subsection (3), each central, provincial, district or general hospital shall be a body corporate capable of suing and being sued in its own name, and, subject to the Act, performing all acts that bodies corporate may by law perform.”

The first respondent is a duly incorporated company in terms of the laws of Zimbabwe.

The second and third respondents, being the Registrar of the High Court of Zimbabwe and the Sheriff of the High Court, are cited both in the official capacities.

The background facts of this matter are as follows;

The first respondent instituted proceedings by way of action in HC10108/13 against the applicant and the applicant apparently did not enter an appearance to defend. On 12 March 2014 my sister CHIGUMBA J granted a default judgement in the following terms;

“IT IS ORDERED THAT;

1. The defendant be and is hereby ordered to pay the sum of US$74,068= to the plaintiff.

2. The defendant to pay interest at an prescribed rate calculated from the date of summon to date of payment in full.

3. Defendant to pay cost of suit.”

After obtaining the said default judgement, the first respondent caused a writ of execution against the applicant's movable property to be issued on 20 May 2014, by the second respondent.

Pursuant to the writ of execution, the third respondent, on 17 February 2015, issued a Notice of Removal. The Notice of Seizure and Attachment, dated 17 February 2015, shows that the following motor vehicles were attached;

(a) ABT 8229 Isuzu white.

(b) ABP 3228 Isuzu.

(c) ABH 5021 Isuzu.

(d) ADF 3648 Toyota Hilux.

(e) Staff bus Swaraj Mazda T3500 CCH 06.

(f) Staff bus Swaraj Mazda T3500.

(g) Tata mini bus 1391 GHCW.

(h) Land Rover Discovery 4 ACH 1225.

The removal date of the attached property was 20 February 2015, but, the third respondent, through a letter dated 5 March 2015, filed of record, indicated that the removal of the attached goods has been stopped pending this outcome of this urgent chamber application which was issued on 20 February 2015.

As per the founding affidavit deposed to by the applicant's Chief Executive Officer, one Dr Obadiah Moyo, while the applicant does not deny or dispute liability, the applicant contends that in terms of section 5 of the State Liabilities Act [Chapter 8:14] no execution or attachment or process shall be issued against in State or any property of the State.

The applicant contends that the correct position of the law is that the nominal defendant, who should have been cited by the defendant in its initial claim, is the one which may cause to be paid out of the Consolidated Revenue Fund such sum of money to satisfy the judgement or order of this court.

The basis of the provisional order sought is that the property attached, listed in the Notice of Seizure and Attachment, is State property.

The relevant provisions of section 5 of the State Liabilities Act [Chapter 8:14] are as follows;

“5. No execution or attachment to be issued, but nominal defendant or respondent authorised to pay the sum awarded.

(1)…,. not relevant.

(2) Subject to this section, no execution or attachment or process in this nature thereof shall be issued against the defendant or respondent in any action or proceedings referred to in section two or against any property of the State but the nominal defendant or respondent may cause to be paid out of the Consolidated Revenue Fund such sum of money as may, by a judgment or order of this court, be awarded to the plaintiff, the applicant or the petitioner, as the case may be.

(3)…,. not relevant.”

The basis of the provisional order sought is that the property attached is State property, and, as such, the attachment has been done in breach of the cited statutory provisions which would render the whole process or procedure unlawful.

Counsel for the first respondent took the point in limine that this matter is not urgent, and, on that basis, should he dismissed….,.

In argument, counsel for the first respondent submitted that there are a number of reasons as to why this matter should not be treated as urgent. He submitted that when the default judgement was granted, on 12 March 2014, the applicant, who had been served with summons for the money owed and had not entered an appearance to defend, should have known that judgment against the applicant would be granted.

Counsel for the first respondent submitted that the debt, which has been owing as far back as 2012, is acknowledged and has never been disputed as the applicant has absolutely no defence to offer.

In addition to that, counsel for the first respondent said after the default judgement had been granted he wrote, on 20 January 2015, to the applicant, on behalf of the first respondent, advising them of the amount due as per the order of the court.

Counsel for the first respondent argued that the writ of execution which was subsequently issued should not have come as a surprise to the applicant as the applicant ought to have known that a writ follows judgement. Counsel for the first respondent submitted that this was also the case since, in November 2014, the first respondent had engaged the applicant on the modalities of liquidating the judgment debt to no avail.

It is the first respondent's contention that the applicant, after having been aware of this default judgement as way back as 2014, did nothing about the matter by either seeking to have this default judgment set aside or to ensure that no writ is issued. Counsel for the first respondent submitted that all what the applicant did was to wait until the day of reckoning arrived, when the attachment of the property was done through the Notice of Removal on 17 February 2015, as the applicant only filed this urgent application three (3) days later on 20 February 2015. It is submitted that the applicant only sprung into action because of this attachment hence the urgency is self-created.

Counsel for the first respondent concluded by stating that the point in limine raised should be upheld and this matter dismissed as the applicant has not been able to overcome this hurdle and has dismally failed to explain in the papers filed how the urgency has arisen.

Counsel for the applicant conceded that the sequence of events, as submitted by counsel for the first respondent, is not in issue. She acknowledged the applicant's indebtedness to the first respondent and that indeed the applicant has been aware, as far back as 2014, of the default judgement. She admitted that efforts were made to resolve the matter by engaging the first respondent in 2014.

Counsel for the applicant denied that the applicant did nothing as alleged. She produced deposit schedules which show that on 30 May 2014, 10 July 2014, 8 January 2015, 16 February 2015, 23 February 2015 and 26 February 2015 the applicant has made various deposits into the first respondent's Barclays Bank account in a bid to liquidate the debt.

I however note that the total amount paid in all the deposits is a paltry $7,531=75 leaving an outstanding balance on the judgement debt of US$65,536=25.

As counsel for the first respondent correctly pointed out, such payments were not being done with the consent or in consultation with the first respondent hence it is too little too late.

Counsel for the applicant insisted, however, that even as late as 24 February 2015 she had engaged counsel for the first respondent to agree on a payment plan, and, therefore, disputes that the applicant has done nothing about that matter.

Counsel for the applicant submitted that the urgency in this matter arose from the fact that the property attached is not the applicant's property but State property which State property is immune to judicial execution as provided for in section 5 of the State Liabilities Act [Chapter 8:14].

Counsel for the applicant argued that the urgency therefore arose when the State property was attached on 17 February 2015.

She further produced a number of documents to show that the motor vehicles in issue do not belong to the applicant but to the State and that the Master Asset Register of the Ministry of Health shows that some of the vehicles attached belong to the Ministry.

Counsel for the first respondent took issue with the fact that these documents were not part of the founding affidavit.

I however allowed the applicant to avail them as this is an urgent application.

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.The appeal is mounted against part of the judgment, in particular, ...

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.

The appeal is mounted against part of the judgment, in particular, paragraph 2 of the operative order of the court a quo.

Background

The appellant is the Zimbabwe School Examinations Council (ZIMSEC), a statutory body created in terms of the Zimbabwe School Examinations Council Act [Chapter 25:18]. It is responsible for conducting examinations for primary and secondary schools in Zimbabwe. It is also empowered, in terms of section 34 of its enabling Act, to annul examination results.

The respondents are the respective guardians of two school children who sat to write the Ordinary Level English Paper 1 and Paper 2 examinations conducted by the appellant in November 2017.

It is common cause that there was a leakage of English Paper 2 which led to widespread cheating by candidates who sat for the examination in that paper.

On 6 February 2018, the appellant took the decision to nullify the results of that examination. The appellant also directed a re-sit of that examination which was scheduled for 16 February 2018.

The respondents, being aggrieved by these decisions, filed an urgent chamber application in the High Court for an order setting them aside.

They averred that the decisions were arbitrary and would cause undue hardship to their respective daughters as well as other students who had written their examinations in earnest and without cheating. At the time of the application, the first respondent's daughter had travelled to Australia, while the second respondent's daughter was in Bindura but her examination centre was located in Goromonzi.

The court a quo identified the issues before it as follows:

(i) Whether or not the appellant's nullification of the English Paper 2 examination results ought to stand; and

(ii) Whether a rewrite of that examination was the appropriate remedy.

The court proceeded to uphold the appellant's decision to nullify the results of the Paper 2 examination. However, it set aside the appellant's decision calling for a re-write of the examination and substituted it with an order to the effect that the results of candidates be based on the results in Paper 1 only, as per the recommendations of the English Subject Manager dated 8 January 2018.

In arriving at its decision, the court a quo (which comprised two judges) reasoned that it could not uphold the results of the Paper 2 examination as this would amount to the court aiding and abetting cheating in examinations.

However, the appellant's decision to order a rewrite of the Paper 2 examination was taken without regard to the recommendations of the Subject Manager and was therefore arbitrary in nature. Additionally, that decision was made without taking into account the interests of those children who did not cheat in the examination. It was also possible that many innocent children did not have access to information pertaining to the scheduled re-write of the examination as the notice given by the appellant for the scheduled rewrite was grossly and unreasonably short.

The appellant impugns the judgment a quo on the following grounds, as summarised:

(a) The court granted relief that was not sought or justified on the papers without advance notice or warning to the appellant....,.

The first ground of appeal attacks the judgment a quo on the basis that the court afforded relief which was neither sought nor justified on the papers before the court, without advance notice or warning to the appellant....,.

It is not disputed that the court a quo granted final relief instead of the interim relief that was sought by the respondents. It is also not in dispute that the final order that was granted departed materially from the provisional order that was sought by the respondents.

The relief granted was not pleaded or supported by the averments contained in the founding affidavit and no evidence was led to support it.

It is trite that an application either stands or falls on its founding affidavit - Director of Hospital Services v Mistry 1979 (1) SA 626 (A).

It is also trite that a court is ordinarily not at large to grant relief which has not been sought by the applicant.

The court cannot exceed its mandate to determine the issues placed before it by the parties through their pleadings and evidence or mero motu grant orders not sought by either party without obtaining the parties' views on those orders – Nzara & Ors v Kashumba N.O. & Ors SC18-18.

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

It is trite that a court ought to be guided and to determine issues which are raised by the parties in the pleadings.In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A), 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. ...

HB84-18 : ROSINA NGIRAZI vs FUNGAI SAUROSI and KWEKWE CITY COUNCIL
Ruled By: MATHONSI J

Let me state from the onset that in motion proceedings an application stands or fails on its founding affidavit. If the founding affidavit does not make a case for the relief sought, it does not matter that the applicant files additional affidavits unprocedurally or attempts to make a case in ...

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

The law is clear that parties are bound by their pleadings and they are not allowed to depart from them without leave.The remarks by the authors JACOB and GOLDREIN in Pleadings: Principles and Practice (Sweet Maxwell London, 1990)…, which are cited with approval in the judgment in Jowel ...

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

The applicant seeks interim relief, through the Chamber Book, couched in the following terms:“TERMS OF FINAL ORDER1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review ...

The applicant seeks interim relief, through the Chamber Book, couched in the following terms:

“TERMS OF FINAL ORDER

1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review of the Taxing Officer's decision filed under Case No. HC953/15.

1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review of the Taxing Officer's decision filed under Case No. HC953/15.

2. Costs of suit shall be costs in the cause in the Application for Review of the Taxing Officer's decision under Case No. HC10209/15.

INTERIM RELIEF GRANTED

Pending the application for Review of Taxing Master's decision, under case number HC953/15, the first and second respondents be and are hereby ordered to stay execution and attachment of applicant's movable property to satisfy the amount of taxed costs in Case Number HC953/15.”

The parties were involved in a long running dispute in which the applicant appears to have earned the wrath of the courts and slapped with an adverse order for costs on the turn. The first respondent alleges that the applicant unreasonably refused to make payments of certain funds held by it as a banker. The courts into which the suit spilled found that the resistance to the claim was unreasonably offered, resulting in several orders for costs against the applicant.

The first respondent alleges that the applicant has, to date, not paid any amount in terms of the various orders for those costs.

In this application, the parties appeared before the Taxing Officer of this court on 23 October 2015 at the behest of the first respondent. Before the Taxing Officer, the applicant raised several objections, chief of which related to item 48 on the bill. That item related to disbursement for fees paid to Advocate De Bloc, the first respondent's lawyer in Belgium. Despite these objections, the Taxing Officer allowed that item. In the end, the Taxing Officer allowed costs on a party and party scale in the sum of US$439,546=70 to the first respondent.

At the taxation, the applicant indicated to the first respondent that it intended to take the Taxing Officer's decision on review. On its part, the first respondent proceeded to instruct the second respondent to place under attachment the movable property on the applicant's premises on 23 October 2015.

The applicant filed an application for review of the Taxing Officer's decision under case number HC10209/15 citing various irregularities, especially the allowance of Advocate De Bloc's fees.

In order to prevent immediate execution of the writ, obtained by the first respondent, the applicant filed the present application under a certificate of urgency to stay the execution of the writ pending the determination of the application for review.

On 24 October 2015 I issued an order staying execution pending the determination of the present chamber application.

The first respondent took two points in limine;

(i) The first point taken by the first respondent is that the application is deficient for lack of compliance with Rule 241(1) of the Rules of this court which governs chamber applications in that there is no Form 29 as required. As such there is no urgent application before the court.

(ii) The second point in limine taken by the first respondent is that the applicant has approached this court with dirty hands as it has not paid any of the three or so bills of costs awarded against it.

Counsel for the applicant argued that the first respondent raises these points in limine in order to deflect the court from dealing with the merits of the matter....,.

In any event, the first respondent did not raise these points in limine in the opposing affidavit. In his submission, points in limine should not impede proceedings unnecessarily.

HHH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

The applicant, at the onset of the proceedings, raised two preliminary points.Firstly, he submitted that there was no opposition by the respondents before me.The respondents filed a notice of opposition on 23 July 2013. An opposing affidavit by Rodgers Kachambwa was filed together with the Notice of Opposition.I shall quote ...

The applicant, at the onset of the proceedings, raised two preliminary points.

Firstly, he submitted that there was no opposition by the respondents before me.

The respondents filed a notice of opposition on 23 July 2013. An opposing affidavit by Rodgers Kachambwa was filed together with the Notice of Opposition.

I shall quote the opposing affidavit verbatim;

“IN THE MAGISTRATES COURT CRB No. R847/12 FOR THE EASTERN DIVISION CASE No HELD AT HARARE In the matter between: LEE WAVERLY JOHN APPLICANT vs THE STATE 1st RESPONDENT SIMON ROGERS KACHAMBWA NO 2ND RESPONDENT

_____________________________________________________________________
OPPOSING AFFIDAVIT
_____________________________________________________________________

I have gone through the application for review of the court proceedings up to the close of the case for the State and my ruling I made in favour of the State.

The application is opposed in its entirity. The review cannot shop the resumption of the trial. I will refer to the Applicant and his lawyer to the case of Attorney General v Makamba SC74-04, dated 30 August 2004, which is clear on the applications similar to the one before me.

Sworn before me this 16 day of July 2013

_____________ Deponent

_____________ Commissioner of Oaths.”

Counsel for applicant submitted that that the above affidavit refers to a matter in the Magistrate Court and has no bearing on the present case.

Substantively there is nothing in the affidavit. I agree with the applicant's submissions.

The affidavit was written for a matter before the Magistrate Court. It is not meant for this matter. Again, the contents of the affidavit do not state the reasons why the application is opposed. There are no factual averments therein. The ruling by the magistrate has not been properly admitted into evidence. If such ruling was to be an annexure to the opposing affidavit then, it must be properly referred to in that affidavit.

It was my finding, therefore, that there was no opposing affidavit filed.

Without such opposing affidavit no heads can be filed.

HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL
Ruled By: TSANGA J

The person deposing a supporting affidavit will materially have read the founding affidavit with a view to making averments in support of those in the founding affidavit.

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

View Appeal HH373-16 : AL SHAMS GLOBAL BVI LIMITED vs CHRISTOPHER SAMBADZA Ruled By: TAGU J

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

View Appeal SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

View Appeal SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

Appealed SC23-18 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP Ruled By: CHIGUMBA J

Appealed SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES Ruled By: BHUNU JA

Appealed SC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

HH477-14 : KUKURA KURERWA BUS COMPANY vs SIMBA MUKWENA and TRUST SINANI and RAYMOND CHIGWAZE and MESSENGER OF COURT, MUTARE Ruled By: MATHONSI J

HH119-15 : ALSHAMS GLOBAL LIMITED vs INTERFIN BANK LIMITED and SAVANNAH TOBACCO (PRIVATE) LIMITED Ruled By: MAKONI J

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS Ruled By: MATHONSI J

HH130-15 : ISRAEL CHIRANGWANDA vs ZIMBABWE LEAF TOBACCO and ADVOCATE DAVID OCHIENG Ruled By: MAKONI J

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU Ruled By: TAKUVA J

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU Ruled By: TAKUVA J

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

HH801-15 : ENNOCENT T. MAPOSA vs CHRISTOPHER MATABUKA Ruled By: CHITAKUNYE J and MWAYERA J

HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE Ruled By: ZHOU J

HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. Ruled By: MATHONSI J

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE Ruled By: MAFUSIRE J

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR Ruled By: MAWADZE J

HH168-15 : ARAFAS MTAUSI GWARADZIMBA vs AKA JULIE PANAGIOTA MERCURI N.O. and THE MASTER OF THE HIGH COURT N.O. Ruled By: MWAYERA J

View Appeal CC22-17 : MOVEN KUFA and VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE and OTHERS Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

CC14-19 : GARIKAI KAMANGA vs PRINCE EDWARD SCHOOL – SDA Ruled By: MALABA CJ and GARWE JCC and MAKARAU JCC

Appealed CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

Appealed SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ

HH410-17 : RONALD JOHN COUMBIS vs KINGDOM BANK LIMITED Ruled By: CHIWESHE JP

HH494-15 : THE SHERIFF OF THE HIGH COURT vs SHEPHARD MAYAYA and DAPHNE MAKOTORE and TURNALL HOLDINGS LIMITED Ruled By: MUREMBA J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES Ruled By: MANGOTA J

HH84-09 : LIZZIE MUKUMBA vs THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER OF POLICE Ruled By: KUDYA J

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA Ruled By: MTSHIYA J

HMA54-18 : IN RE: WASHINGTON FUNGISAI MUDIMBU vs X Ruled By: MAWADZE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND Ruled By: CHIGUMBA J

HH504-16 : GODFREY CHIPARAUSHE and 60 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND and MR S MTSAMBIWA Ruled By: MATANDA-MOYO J

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST Ruled By: CHIGUMBA J

View Appeal SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF Ruled By: MAFUSIRE J

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS Ruled By: MAWADZE J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT Ruled By: MAWADZE J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati) Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

HB84-18 : ROSINA NGIRAZI vs FUNGAI SAUROSI and KWEKWE CITY COUNCIL Ruled By: MATHONSI J

Appealed SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: GARWE JA, BHUNU JA and MAKONI JA

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O. Ruled By: HUNGWE J

HHH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA Ruled By: MATANDA-MOYO J

HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL Ruled By: TSANGA J

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Zimbabwe

View Appeal
HH373-16 : AL SHAMS GLOBAL BVI LIMITED vs CHRISTOPHER SAMBADZA
Ruled By: TAGU J

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

View Appeal
SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

View Appeal
SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

Appealed
SC23-18 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP
Ruled By: CHIGUMBA J

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

Appealed
SC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

HH477-14 : KUKURA KURERWA BUS COMPANY vs SIMBA MUKWENA and TRUST SINANI and RAYMOND CHIGWAZE and MESSENGER OF COURT, MUTARE
Ruled By: MATHONSI J

HH119-15 : ALSHAMS GLOBAL LIMITED vs INTERFIN BANK LIMITED and SAVANNAH TOBACCO (PRIVATE) LIMITED
Ruled By: MAKONI J

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS
Ruled By: MATHONSI J

HH130-15 : ISRAEL CHIRANGWANDA vs ZIMBABWE LEAF TOBACCO and ADVOCATE DAVID OCHIENG
Ruled By: MAKONI J

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU
Ruled By: TAKUVA J

HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU
Ruled By: TAKUVA J

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

HH801-15 : ENNOCENT T. MAPOSA vs CHRISTOPHER MATABUKA
Ruled By: CHITAKUNYE J and MWAYERA J

HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE
Ruled By: ZHOU J

HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MATHONSI J

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

HMA13-18 : JONATHAN CHIKUKWA vs BEAUTY and GAME DOLLAR
Ruled By: MAWADZE J

HH168-15 : ARAFAS MTAUSI GWARADZIMBA vs AKA JULIE PANAGIOTA MERCURI N.O. and THE MASTER OF THE HIGH COURT N.O.
Ruled By: MWAYERA J

View Appeal
CC22-17 : MOVEN KUFA and VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE and OTHERS
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

CC14-19 : GARIKAI KAMANGA vs PRINCE EDWARD SCHOOL – SDA
Ruled By: MALABA CJ and GARWE JCC and MAKARAU JCC

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

Appealed
SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

HH410-17 : RONALD JOHN COUMBIS vs KINGDOM BANK LIMITED
Ruled By: CHIWESHE JP

HH494-15 : THE SHERIFF OF THE HIGH COURT vs SHEPHARD MAYAYA and DAPHNE MAKOTORE and TURNALL HOLDINGS LIMITED
Ruled By: MUREMBA J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

HH84-09 : LIZZIE MUKUMBA vs THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER OF POLICE
Ruled By: KUDYA J

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

HMA54-18 : IN RE: WASHINGTON FUNGISAI MUDIMBU vs X
Ruled By: MAWADZE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

HH504-16 : GODFREY CHIPARAUSHE and 60 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND and MR S MTSAMBIWA
Ruled By: MATANDA-MOYO J

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

View Appeal
SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS
Ruled By: MAWADZE J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

HB84-18 : ROSINA NGIRAZI vs FUNGAI SAUROSI and KWEKWE CITY COUNCIL
Ruled By: MATHONSI J

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

HHH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL
Ruled By: TSANGA J