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Summary Judgment: Clear and Unanswerable Claims re: Approach

HH18-10 : CENTRAL AFRICA BUILDING SOCIETY vs EPHISON NDAHWI
Ruled By: MAKARAU JP

This is an application for summary judgment. The plaintiff issued summons against the defendant on 10 September 2009 claiming the following: 1. Payment of the amount of US$52,579=51 with interest thereon capitalized monthly at the rate of 12% per annum from 7 September 2009 to date of payment in full; 2. Costs of suit on the scale between legal practitioner ...
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HH102-12 : GRAEME CHADWICK vs JG CONSTRUCTION
Ruled By: MATHONSI J

After hearing argument in this matter I granted summary judgment and said the reasons for doing so would follow. These are the reasons: The applicant and one Jacobus Andrew Summerfield are friends of long standing. This did not stop the applicant instituting summons action against the respondent, a company in which Jacobus Andrew Summerfield is Managing Director, ...
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HH115-12 : MUGANDANI ENTERPRISES (PVT) LTD T/A MUGA FOODS vs TRINPAC (PVT) LTD
Ruled By: MUTEMA J

This is an application for summary judgment. The basis of the application is that sometime in 2010 the respondent was supplied, upon request, on credit, cake flour by the applicant to its various branches throughout the country. The cake flour was valued at US$828,518=05. This amount was due and payable on 7 December 2010. The respondent acknowledged its ...
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HH29-12 : CHIEDZA CHIKOMO vs YISRAEL YEHUDAH
Ruled By: MAVANGIRA J

The following facts are common cause. On 22 January 2010 the parties entered into an agreement in terms of which the applicant lent the sum of US$9,500= to the respondent. It was an express term of the agreement that payment would be made within seven days from the date of lending. The respondent failed to ...
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HH64-10 : STATIONERY BOX (PVT) LTD vs NATCON (PVT) LTD and FARAI NDEMERA
Ruled By: MAKARAU JP

This is an application for summary judgment. On 6 October 2009, the plaintiff issued summons against the defendants claiming the sum of US$4,568=85 in respect of certain goods allegedly sold and delivered at the first defendant's special instance. In its declaration, the plaintiff alleged that during the period 22 April to 20 May 2009, the plaintiff supplied stationery ...
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HH34-08 : TRUST BANK CORPORATION LIMITED vs COLD STORAGE COMPANY LIMITED
Ruled By: MTSHIYA J

In summary judgment proceedings, the respondent must have no bona fide defence at law to the action/claim and/or accepted its indebtedness in the amount stated in the summons. Summary judgment cannot be granted where there is a good defence, at law, against the drastic relief sought by the applicant, eg lack of locus standi.
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HB17-09 : JOHN KENNETH DALY vs DEAN VELDSMAN AND THREE OTHERS
Ruled By: NDOU J

It is trite law that where triable issues arise, the applicant is not entitled to summary judgment.
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HB17-09 : JOHN KENNETH DALY vs DEAN VELDSMAN AND THREE OTHERS
Ruled By: NDOU J

The respondents have raised a procedural issue with this application. The founding affidavit does not verify the cause of action. Order 10 Rule 64(2) of the Rules of the High Court, 1971, requires that an applicant for summary judgment must: (a) Verify the cause of action. (b) State that in the belief of the deponent, there is no ...
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HH32-10 : THE FINANCIAL GAZETTE vs GRASHIE SAPPLIES (PVT) LTD
Ruled By: BHUNU J

This is an application for summary judgment. The bulk of the facts in this case are not in dispute. It is common cause that on 27 June 2005 the parties concluded an Agreement of Lease wherein the applicant company let its property, known as Shop No.3 at Fingaz House measuring 84,75 square metres in extent, to ...
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HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

This is an application for summary judgment whose draft order reads:“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.2. The respondent pays costs of suit.”This is one of several ...
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HB13-12 : WAGLEY INVESTMENTS (PVT) LTD vs TADEU MUPANEMUNDA
Ruled By: NDOU J

It is trite law that not every defence raised by a defendant will succeed in defeating a plaintiff's claim for summary judgment. The defendant must raise a bona fide i.e. a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. The ...
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HB47-09 : NOMSA MARANGO vs LEONARD NDLOVU
Ruled By: KAMOCHA J

This is an application for summary judgment in which the applicant seeks an order in the following terms:- “It is ordered that:- 1. Summary judgment be and is hereby granted for respondent's eviction (and all those who claim through him) from the premises situate at number 2918 Emakhandeni, Bulawayo, within seven days of this order, failing which the Deputy ...
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Appealed
SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

This is an appeal against the whole judgment of the High Court, Bulawayo, dated 22 February 2011 granting summary judgment against the appellant in the sum of US$6,000=. The facts that were common cause in this matter were as follows. On 16 February 2007, the appellant and the respondent entered into an agreement in terms ...
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Appealed
SC53-14 : TAVENHAVE AND MACHINGAUTA LEGAL PRACTITIONERS vs THE MESSENGER OF COURT
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

After hearing argument in this matter, we allowed the appeal and issued the order appearing at the end of this judgment. The following are our reasons for so doing. On 23 January 2012, the respondent (“the Messenger of Court) issued summons in the High Court against the appellant, as first defendant, and Manase ...
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HH156-10 : STEPHEN HUDSON vs JOSEPH V. SITHOLE
Ruled By: MTSHIYA J

Order 10 Rule 64 of the High Court Rules, 1971 (Rule 64) provides as follows: “(1) Where the defendant has entered appearance to a summons, the plaintiff may 'at any time before a pre-trial conference is held' make a court application in terms of this rule for the court to enter summary judgment for what is claimed ...
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HH136-10 : LOCAL AUTHORITIES PENSION FUND (PVT LTD vs MOONLIGHT PROVIDENT ASSOCIATES (PVT) LTD
Ruled By: HUNGWE J

The applicant and the respondent entered into three lease agreements in terms of which the applicant leased to the respondent its premises located at 4th to 7th Floors, LAPF Centre, at corner Chinhoyi Street and Jason Moyo Avenue, Harare. The first of these agreements was concluded on 9 November 2004. In terms of that lease, ...
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HH132-11 : MYSTICAL TRADING (PRIVATE) LIMITED and MARCOL TRADING LIMITED and BROAD FUELS CC vs ADDX TRADING 528 (PTY) LIMITED and DOWNTOWN PETROLEUM (PRIVATE) LIMITED and FUTURE MUVIRIMI
Ruled By: MTSHIYA J

This is an application for summary judgment. On 18 August 2010 the applicants issued summons against the respondents seeking the following relief:- “(a) Delivery of 70 5000 litres of diesel; (b) Payment of the replacement value of 70 5000 litres of diesel at the market rate prevalent on the date judgment. (c) Costs of suit on ...
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HB34-11 : MINING INDUSTRY PENSION FUND (MIPF) vs BANLAX and TAURAI TADERERA and JORAM TAPFUMA
Ruled By: MATHONSI J

This is a summary judgment application in which the applicant seeks the eviction of the respondents from premises known as Shop 40 Entumbane Complex, Bulawayo by reason of non-payment of rent. The applicant alleges that the rent in question was determined by the Rent Board following an application in which both parties were represented. The decision ...
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HB42-11 : CASSIM SIBANDA (On behalf of Nathan Madzwanya and Kudzanai Madzwanya) vs BERNADETTE MUJURU
Ruled By: KAMOCHA J

The applicant seeks an order for summary judgment in the following terms:- “It is ordered that:- (a) Defendant pays a sum of US$68,551=88; alternatively Stand Number 6813 Bulawayo Township of 6872 A Bulawayo Township situate in the district of Bulawayo measuring 2331 square metres be sold by public auction or private sale conducted by the Deputy Sheriff to ...
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HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

This is an application for a summary judgment.The historical background and genesis of this matter is that the applicant is a yesteryear international football icon entered into an employment contract with the respondent, Highlanders Football Club. The contract was signed on the 7th October 2008. One of the terms and conditions of the ...
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HH258-10 : KALAHARI PETROLEUM (PRIVATE) LIMITED vs WEBSTER NGWARU and CONFUELS (PRIVATE) LIMITED
Ruled By: GOWORA J

On 7 April 2010 the plaintiff herein issued summons against the defendants, jointly and severally claiming an amount of USD$364,434=. The defendants duly entered appearance to defend the summons and filed a plea in their defence. The plaintiff has now approached this court for an order for summary judgment in the amount claimed on ...
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HH272-10 : NICHOLAS VAN HOOGSTRATEN vs FELISTAS JAMES and THE SHERIFF FOR ZIMBABWE and THE CHIEF REGISTRAR OF DEEDS
Ruled By: MAKONI J

Sometime in August 2005, and at a sale in execution, the applicant purchased the first respondent's rights, title, and interest, in Stand 124, The Grange Township of the Grange, commonly known as Number 4 Wroxham Road, The Grange, Harare...,. On 7 September 2005, the second respondent confirmed the sale. The first respondent then filed ...
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HB169-11 : M.B.C.A. BANK LIMITED vs MERSPIN (PRIVATE) LIMITED and DELMA LUPEPE and GRACE LUPEPE and EDGE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MATHONSI J

The applicant instituted proceedings against the four respondents for payment of US$38,660=05 plus interest, and an order declaring certain immovable property belonging to the fourth respondent but mortgaged to the applicant, specially executable and costs of suit on an attorney and client scale.The respondents entered appearance to defend and this prompted the applicant to file ...
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HB170-11 : INTERFIN MERCHANT BANK OF ZIMBABWE LIMITED vs MERSPIN ZIMBABWE LIMITED and BERNARD CONSTRUCTION AND PROPERTY DEVELOPERS PL and COPPER TRADING PL and DELMA LUPEPE and GRACE LUPEPE
Ruled By: MATHONSI J

This is a summary judgment application in which the applicant claims payment of the sum of US$250,000= together with interest, collection commission and costs of suit from the five respondents in respect of money allegedly advanced to the first respondent by virtue of a credit facility extended to the first respondent.In its summons and ...
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HB98-10 : JUDITH MALAME vs MARGRET DUTIRO
Ruled By: NDOU J

This is an application for summary judgment. The respondent is a legal practitioner trading under the style of Dutiro and Partners in Zvishavane. Briefly, the applicant enlisted the services of the respondent to represent her in a matter involving her and her boyfriend. The applicant mandated the respondent to facilitate her separation from her boyfriend and distribution of ...
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HB139-10 : RODGER SIBANDA vs LOVESON GUMBO and THE MESSENGER OF COURT, BULAWAYO
Ruled By: MATHONSI J

Counsel for the applicant strongly argued that it was a gross irregularity for the matter to be set down on short notice thereby failing to accord the applicant sufficient time to prepare his opposition. Order 15 Rule 1(2) of the Magistrates Court (Civil) Rules, 1980 provides: “An application in terms of subrule(1) (i.e. summary judgment application), ...
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View Appeal
HH06-13 : THE MESSENGER OF COURT (HARARE) vs TAVENHAVE-MACHINGAUTA LEGAL PRACTITIONERS
Ruled By: MTSHIYA J

Both parties have correctly dealt with the law relating to partnerships and having identified where liability should lie, I see no point in revisiting that area of the law. The respondent, in casu, has indeed conducted itself in a manner that does not assist it in its alleged defence. In short, the respondent has, in my view, ...
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HH12-13 : ANDREW MILLS vs TANGANDA TEA COMPANY LIMITED
Ruled By: PATEL J

This matter involves two separate claims by the applicant as against the same respondent in Case Nos. HC11737/11 and HC279/12. The two claims emanate from the same cause of action and involve the same facts in issue between the same parties. They were accordingly consolidated, by consent, on 19 November 2012 through a chamber application ...
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HH17-13 : P B ARNOTT AND SON (PRIVATE) LIMITED vs STEVEN MANOTA and EVELYN JAMES and NESBERT MANOTA
Ruled By: ZHOU J

This is an application for summary judgment against the three respondents who are the defendants in case no. HC8904/10 (hereinafter referred to as “the main matter” or “the action”). The applicant is the plaintiff in the main matter, in which it instituted proceedings for the ejectment of the respondents from the Assistant Manager's house at ...
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HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED
Ruled By: MAKONI J

The applicant issued summons claiming payment of the sum of US$15,900=, interest on the amount at the prescribed rate and costs of suit on attorney-client scale. The respondent entered an appearance to defend. The applicant then applied for summary judgment. The basis for the application is that the applicant was an employee of the respondent. Upon reaching ...
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HB03-13 : AGRICULTURAL DEVELOPMENT BANK OF ZIMBABWE T/A AGRIBANK vs PRITCHARD ZHOU and PERSEVIARANCE ZHOU
Ruled By: CHEDA J

This is an application for a summary judgment. The applicant is a duly registered commercial Bank carrying on a business under the name and style of Agricultural Development Bank of Zimbabwe t/a Agribank. The first and second respondents are farmers carrying on business from sub-division 4 of Lot 4 of Sherwood, Kwekwe. On or about the 27th October ...
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HB13-13 : ZIMBABWE NATIONAL WATER AUTHORITY vs KADOMA MUNICIPALITY
Ruled By: NDOU J

This is an application for summary judgment which is opposed by the respondent.The background facts are the following.On 6 May 2004, the parties entered into a written agreement for the purchase and sale of rate water for a period of ten years. It was a term of the agreement that ...
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HH14-14 : CONTINENTAL OUTDOOR MEDIA (PVT) LIMITED vs WESTVILLE INVESTMENTS (PVT) LIMITED T/A OMNI AFRICA
Ruled By: TAKUVA J

This is an application for summary judgment where in the plaintiff claims the following; (i) Payment of the sum of US$30,763=50. (ii) Interest on the sum of $30,763=50 at the prescribed rate per annum from 23 August 2012 to the date of payment in full. (iii) 2.5 % collection commission in the sum of US$5,600=00. (iv) Liquidated damages in ...
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HH32-14 : ZIMPLASTICS (PVT) LTD vs ROLLY CORBET
Ruled By: CHIGUMBA J

The applicant averred that the application for summary judgment is not likely to succeed because it contains disputes of fact which are only suitable of resolution by way of action. Some of those disputes are that the quantum of the applicant's indebtedness is not clear and the question of whether the respondent had been authorized ...
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HH52-14 : CREDIT INSURANCE OF ZIMBABWE vs TEXTBOOK SALES
Ruled By: TAKUVA J

The applicant issued summons in this court claiming $11,001=88 from the respondent. The latter entered appearance to defend and the former applied for summary judgment. The facts are that between 2010 and 2011, Fleximail, a division of ART Corporation Ltd, sold and delivered stationery on credit to the respondent. Fleximail has an insurance policy with the applicant ...
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HH123-13 : AFRICAN BANKING CORPORATION OF ZIMBABWE LIMITED t/a BANCABC vs PWC MOTORS (PVT) LTD and PETER MARE and WONDER MARE and CHARLES MARE
Ruled By: MATHONSI J

This summary judgment application graphically illustrates that a trend is fast developing among business people in this country to borrow huge sums of money from financial institutions and when the time to pay comes, to pay as little as possible, or better still, not to pay at all. A pattern is manifesting itself where ...
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HH190-14 : AFRICAN BANKING CORPORATION OF ZIMBABWE LIMITED vs SUNJET DEVELOPMENT HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKONI J

At the hearing of this matter, I granted the order for summary judgement and advised the parties that written reasons will be supplied upon request. Such a request has been made and these are they. I can do no better than by starting with a quotation by MATHONSI J in a summary judgement application involving the ...
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HH196-14 : EDWARD K. SHAMUTETE vs MYCROFT ENGINEERING (PRIVATE) LIMITED
Ruled By: MATANDA-MOYO J

This is an application for summary judgement.
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HB26-14 : PEPPER GRINDER TRADING (PVT) LTD vs TRANSMZANSI (PVT) LTD and TWALUMBA CIVILS
Ruled By: MUTEMA J

This is a court application for summary judgment. The first respondent is a subsidiary of the second respondent. In January 2013, the plaintiff and the first defendant entered into an agreement wherein the former hired out its excavator, Komatsu Grader, and Tipper trucks to the latter on agreed rates. Consequent upon the agreement, the plaintiff supplied ...
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Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

This is an appeal against the whole judgment of the High Court handed down on 4 September 2013. In terms of this decision, summary judgment was entered in favour of the respondent for the eviction of the appellants from its premises, St Tropez Apartment Block, Samora Machel Avenue East, Eastlea, Harare....,. The second ground ...
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HH15-15 : HONEYCOMB HILL (PRIVATE) LIMITED vs HERENTALS COLLEGE (PRIVATE) LIMITED
Ruled By: NDEWERE J

In January 2012, the applicant entered into discussions with the first defendant to sell immovable property, No. 7 Cowie Road, Tynwald to the defendant. According to the discussions, the purchase price for the property was going to be $180,000=.A draft agreement capturing the spirit of the discussion was prepared but ...
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HB26-16 : KAMBUZI NINE MINE (PVT) LIMITED vs DOUGLAS PALFRAMAN and STEPHEN MURAMBASVINA T/A JARVIS PALFRAMAN LEGAL PRACTITIONERS and JOLIE OBERT
Ruled By: MATHONSI J

Summary judgment is an extraordinary remedy in the sense that it denies a party who has shown an interest to defend a claim, the opportunity to do so. It is a procedure conceived so that: “A mala fide defendant might summarily be denied, except under onerous conditions, the benefit of the fundamental principle of ...
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HH58-15 : WILBERG INVESTMENTS (PVT) LTD vs TWALUMBA HOLDINGS (PVT) LTD
Ruled By: MATHONSI J

This is an application for summary judgment in which the applicant craves for judgment against the respondent in the sum of $106,640=20 together with interest at the prescribed rate from 25 September 2012 to date of payment and costs of suit. The respondent, on the other hand, would have none of it and frantically opposes the application ...
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HB120-16 : BRYGGEN MOTELS (PVT) LTD vs PURE TREATMENT INVESTMENTS (PVT) LTD
Ruled By: MAKONESE J

This court application is made in terms of Rule 64(1) of the High Court Civil Rules, 1971, seeking summary judgment in favour of the applicant. The applicant claims the following; (a) An order confirming cancellation of the lease agreement between the parties. (b) Payment of arrear rentals in the sum of US$18,133=03. (c) Eviction of the respondent together with all ...
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HH797-15 : PETER KAZINGIZI and THERESA MUCHABAIWA KAZINGIZI vs EQUITY PROPERTIES (PVT) LTD
Ruled By: MATHONSI J

In this summary judgment application, the two plaintiffs, who are husband and wife, seek to recover from the defendant a sum of $31,353= being the outstanding balance of the purchase price they paid to the defendant in anticipation of the successful conclusion of a Sale Agreement involving Stand 2073 Salisbury Township of Lot 3 Bannockburn.
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HB137-16 : TETRACH ENTERPRISES (PVT) LTD vs IRVINE MANHIRE and TECHMATE ENGINEERING (PVT) LTD and MUNICIPALITY OF KWEKWE
Ruled By: MATHONSI J

The applicant is an incorporation based in Kwekwe and so is the second respondent. In HC2978/15 the applicant sued out a summons seeking an order declaring null and void the cession of certain Stands in Kwekwe to the second respondent and for the restoration of all rights and interest in those Stands to it on ...
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HB147-16 : SAWA SECURITY (PVT) LTD t/a MALIGREEN MINE vs RESOURCES AND INVESTMENT (PVT) LTD
Ruled By: BERE J

On 16 April 2015, the applicant issued out summons from this court seeking payment of $18,000= being unpaid money for security services rendered to the respondent in terms of two separate agreements entered into by the parties. These agreements are marked as Annexures 'C' and 'D' to the application for summary judgment. Also annexed to that application ...
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HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

This is an application for summary judgment in the summons proceedings under case number HC39/15 wherein the applicant claimed the following: (a) An order declaring that the defendant's refusal to sign a lease agreement with the applicant in respect of the applicant's premises, namely, Shop 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo, constitutes repudiation of the ...
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HH119-15 : ALSHAMS GLOBAL LIMITED vs INTERFIN BANK LIMITED and SAVANNAH TOBACCO (PRIVATE) LIMITED
Ruled By: MAKONI J

The applicant (Alshams) instituted action proceedings against the respondents, jointly and severally, the one paying the other to be absolved for the payment of US$2,789,137=02….,. Savannah, the second respondent, entered appearance to defend. Alshams then instituted the present application for summary judgment proceedings….,. Summary judgment is a procedure designed to enable the plaintiff whose claim falls within certain defined categories ...
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HB162-16 : BULAWAYO CITY COUNCIL vs CHURCH YABABA JOHANE WEMASOWE
Ruled By: MATHONSI J

A party whose claim is unassailable should not be delayed as a result of the fulminations of a debtor who is ducking and diving to avoid paying a debt but has nothing meaningful to say; a debtor who believes he or she can say anything and in the process succeed to delay the day of ...
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