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Final Orders re: Principle of Finality in Litigation, Decree of Perpetual Silence, Sitting on Judgments & Superannuation

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

The claim in this matter was filed against the first defendant in March 2005. The trial commenced in October 2008, and has spanned over some eighteen months. The cumulative delay between the time of the filing of the summons and the handing down of judgment is a record five years. The telling point, though, ...
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HB14-12 : TRADEPASS MARKETING (PVT) LTD vs M. FILANINO MARKOU M AND NINE OTHERS
Ruled By: NDOU J

This matter has been characterised by cross-reference matters, unnecessary arguments and unending issues. There is need to bring finality in this matter. The parties should not dwell too much on the technical issues. They should move towards dealing with the real dispute between the parties. Petty technical disputes are being argued and re-argued in a very ...
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HH22-09 : JONAH MUFUNDISI vs GLORIA RUSERE
Ruled By: BERE J

It is unforgivable for a legal practitioner to conspire to deflate court process by arrogantly instructing his law firm to refuse to accept court process in the misplaced hope that his client can hold dearly to a court order obtained ex parte. I think legal practitioners who behave in such a manner are as bad ...
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HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

The applicant is a company with limited liability which purports to own all agricultural equipment and implements and runs farming operations at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in ...
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HH109-09 : BERNARD VENGAYI vs DR GIDEON GONO AND BENJAMIN CHUMA AND NEW DONNINGTON FARM
Ruled By: BERE J

When we last appeared in this court, the plaintiff's counsel applied for a postponement on the basis that the plaintiff's papers were not in order, and that he was appearing on behalf of a colleague who was not available to handle the trial on 28 September 2009. Counsel was given the indulgence by this court to ...
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HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE
Ruled By: NDOU J

The salient facts of the case on the merits are the following. The respondent, under case number HC1873/07, filed, under a certificate of urgency, a chamber application for stay of execution of an order issued in favour of the applicant on 20 November 2007. The applicant filed opposing papers on 22 November 2007, and served the ...
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HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

The parties have been to this court on at least five occasions and may have appeared before the magistrates courts once or twice before. The dispute between them has not been put to rest up to now, and I have to unravel the orders and counter-orders that this court has given on the issue ...
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HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

Added to that is the fact that this is a long-drawn matter. The parties have been in and out of courts since the 1980's. It is no doubt in the interests of all parties to achieve finality in all the litigation. Accordingly, it s my considered view that the justice in this matter would be better ...
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HH153-10 : ACHIBOLD NDIDZANO vs PAULINE GONDORA and HOPEMORE ARUFANDIKA and HARDWORK MUTYENYOKA and SIX OTHERS
Ruled By: HUNGWE J

This case demonstrates what befalls a matter between various parties if it is not pursued to finality expeditiously. It also shows what a change of legal practitioners entails where subsequent practitioners have no inkling of the previous processes. The trial of this matter had commenced before MAKARAU JP when it was stopped and the parties ordered to ...
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HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

The delay in the determination of this matter requires explanation. This application was first heard on 28 September 2009. At that time Advocate Mandizha and Mr Mahlangu represented the applicants and the first respondent respectively. The matter was then postponed to 30 September 2009 for continued hearing. However, the matter was only heard again on ...
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HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED
Ruled By: MAKONI J

The maxim “vigilantibus non dormientibus jura subveniunt” applies to the respondents fully. When they first become aware that there were people claiming to have bought their property they did not investigate the matter. They were reimbursed the amount they had paid as purchase price. They did not take any action. When Tawanda wanted to take occupation ...
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HB02-11 : MELUSI NDLOVU vs P D S INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

In addition to that, to hold otherwise would now unravel further litigation involving the current tenant who moved into the premises in good faith. It is a cardinal principle of our law that there must be finality to litigation. See Ndebele v Ncube 1992 (1) ZLR 288…,.
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HB164-11 : TIEDZEI PHIRI vs RAPHAEL PHIRI and MR MAZURA and REGISTRAR OF DEEDS, BULAWAYO and DEPUTY SHERIFF
Ruled By: NDOU J

On 19 April 2011, the applicant obtained a provisional order in the following terms: “A. Terms of the final order sought1. That the 1st respondent be and is hereby interdicted and prohibited from disposing, transferring, alienating, pledging, assigning or dealing with the property, being Stand Number 6905 Nketa 9, Bulawayo.2. That the 1st respondent is ordered ...
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HB74-10 : REBECCA SIZIBA vs BAMSLOVE INVESTMENTS (PVT) LTD and MARTIN SIMMONS and REGISTRAR OF COMPANIES
Ruled By: MATHONSI J

I would otherwise dismiss the application for that reason alone but for the fact that I take judicial notice of the fact that the matter has a chequered history spanning a number of years. There has been litigation after the other which has not resolved anything and the situation has not been helped by ...
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HB91-10 : OSEFELUPILU MOYO (Nee SEDANGE) vs ESTER KELLY N.O. and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MATHONSI J

In any event, there must be finality to litigation. See Ndebele v Ncube 1992 (1) ZLR 288 (S)…,. The estate has long been put to bed. Accordingly, I conclude that there is no merit in the application. It is therefore dismissed with costs.
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HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

The dispute in all these matters centres on the ownership of Stand Number 48170 also known as Block 45/1432 Mpopoma Township, Bulawayo (the house) and numerous proceedings have been brought before this court and the Magistrates' Court over the years as the parties sought to outdo one another. The said house was acquired by the late ...
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HB123-10 : EDGAR HOWERA vs HERBERT MUDZINGWA and NAOMI MUDZINGWA and DEPUTY SHERIF, KWEKWE and DIRECTOR OF HOUSING, MBIZO, KWEKWE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MATHONSI J

When the Supreme Court eloquently expressed indignation to unending litigation in the case of Ndebele v Ncube 1992 (1) ZLR 288 (S) it must have had in mind a case like the present. In that case, the Supreme Court unequivocally stated…, that - “It is the policy of the law that there should be finality ...
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HB136-10 : POTENTIAL INVESTMENTS and RALEMA INVESTMENTS and NERGER PROPERTIES vs JOSEPH TAYALI and TAYALI AND SONS and NERGER PROPERTIES and POTENTIAL INVESTMENTS and RALEMA INVESTMENTS
Ruled By: NDOU J

The Supreme Court has confirmed the High Court decision that Mr. Louw had the authority to represent Potential Investments in the granting of the right of first refusal. The Supreme Court's judgment is final in terms of section 26 of the Supreme Court Act [Chapter 7:13].
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HH90-13 : CLAUDIOUS MAPEDZAMOMBE vs EMILY MHINI
Ruled By: MAKONI J

The applicant, at one point, was the registered owner of Stand 606 Northwood Township 4 of Sumben. The property was sold in execution at a public auction and the respondent was confirmed as the highest bidder. The property was transferred into her name on 24 November 1992. The applicant was not happy with the developments ...
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HH97-13 : SAMSON HLANGANAYI MHLANGA vs PRISILA MAKUYANA and DEPUTY SHERIFF- HARARE
Ruled By: MANGOTA J

During the hearing, it became apparent to me that: Ø Neither the applicant nor the first respondent has locus standi to issue court process aimed at evicting the one, or the other, from the parties' former, or current, matrimonial property. Ø The beneficiaries, who are the parties' twin-children, do not have title to the property and they ...
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HB32-11 : WINFILDA ZVAVAMWE vs ALICE MPOFU and ANNA SIBANDA and THE ADDITIONAL ASSISTANT MASTER N.O. and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J and MATHONSI J

At the commencement of hearing of this appeal, counsel for the first and second respondents took a point in limine that the notice of appeal was fatally defective in that it did not identify the part of the judgment being attacked and did not contain a prayer. The parties, however, agreed that the merits of ...
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HB63-13 : CHIEF GAMPU SITHOLE and GAMPU TOURS (PVT) LTD vs KENNEDY C. NDLOVU and THE DEPUTY SHERIFF OF BULAWAYO N.O.
Ruled By: MUTEMA J

This application is the seventh hearing of this matter. It is salutary to remind legal practitioners and litigants alike of the lament by McNALLY JA in Ndebele v Ncube 1992 (1) ZLR 288 (SC)…, where the learned Judge of Appeal had this to say: “It is the policy of the law that there should be ...
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HB64-13 : GARIYA SAFARIS (PVT) LTD vs TSHOLOTSHO RURAL DISTRICT COUNCIL and THEMBA MOYO
Ruled By: CHEDA AJ

The applicant made issue of the fact that the respondent permitted the applicant to continue to hunt after the termination date, and argues that this meant that the agreement had not terminated. The respondent, on the other hand, replied that it had no option but had to do so because the applicant had obtained a ...
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HB69-11 : WINNIE PAMACHECHE vs ESTHER PAMACHECHE and ESTATE LATE KENNETH PAMACHECHE and BRUCE LONGHURST N.O. and MASTER OF THE HIGH COURT N.O.
Ruled By: MATHONSI J

I must mention that although the parties lodged their claims to the fourth defendant over the years there has been a signal failure by the latter to adjudicate on any of the claims which then led to this litigation.
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HH180-14 : 1. KENIAS MUTYASIRA and 2. BARBRA GONYORA N.O. vs 1. BARBRA GONYORA NO and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF COMPANIES and 2. KENIAS MUTYASIRA and LINAH GONYORA and OTHERS
Ruled By: MAWADZE J

Let me first refer to the relief sought by the applicant and the first respondent in the two cases before me. In case no. HC1351/13, in which the first respondent is the applicant and the applicant is the first respondent, the first respondent seeks the confirmation of the provisional order in terms of the final order ...
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HB10-14 : ELPHAS KAWA vs VICTOR MUZENDA N.O. and ZEXCOM (PRIVATE) LIMITED (in provisional liquidation) and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS and GEORGE ZINGANI and FUNGAI MARUFU
Ruled By: MAKONESE J

On the 17th July 2013, the Honourable KAMOCHA J directed that case numbers HC419/13 and HC310/13 be consolidated and heard at the same time. He further recused himself in both matters and directed that they be placed before me for set down and argument. I heard the matters on 18th October 2013 and ...
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HB22-14 : TATENDA PATIENCE MUKUDU vs ANDREW MALETE
Ruled By: MUTEMA J

It is, I must say, inconvenient to the court to be unnecessarily saddled with frivolous applications whose fate is patently doomed from the outset. Surely, there should be finality to litigation?
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Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

The third ground of appeal raised by the appellants is to the effect that the court a quo erred in failing to find that the option that was granted to the appellants by the respondent had remained open and been exercised and that the resultant agreement between the parties had not been cancelled. In raising ...
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SC42-16 : SOUTHEND CARGO AIRLINES (PRIVATE) LIMITED and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: BHUNU JA

The applicants' shoddy attempt to resurrect a dead case, eleven years after the event, is despicable and deserves censure. The need to have finality to litigation cannot be over-emphasised. It appears that this application has been filed merely to delay the date of reckoning. I am unable, and loathe, to ...
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SC02-17 : GUOXING GONG vs MAYOR LOGISTICS (PRIVATE) LIMITED and THE REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

Counsel for the appellant…, raised the point that the…, default judgment was unenforceable because it has superannuated at common law through the effluxion of time as it was issued more than three (3) years ago. He however later abandoned the objection conceding that superannuation was not in issue as the first respondent was ...
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HH788-15 : COLLEN KWARAMBA vs WINSHOP ENTERPRISES (PVT) LTD and BLAIR CHRISTINK and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

The call made by the Supreme Court in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, to the effect that: “It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But it must be observed that in ...
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HH91-15 : WILBERT MUNONYARA vs CBZ BANK LIMITED and SHERIFF OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

The applicant, a hyper-litigious person who admits having filed in excess of 25 applications in this court over the last 4 years in respect of the same matter; the sale of his house in execution of a judgment obtained against him by the first respondent, now has an application for a decree of perpetual ...
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HH30-15 : MANPAC (PRIVATE) LIMITED vs PEOPLE'S OWN SAVINGS BANK and THE SHERIFF OF ZIMBABWE
Ruled By: DUBE J

The applicant himself cannot escape unscathed. The applicant himself has seriously abused this court, with the assistance of his legal practitioner, and I have decided, in my discretion, to dismiss the application and order that the applicant be barred from bringing the same application in the future.
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HB106-16 : RAPHAEL MASUKU and SICINGILE MASUKU vs SHERIFF OF ZIMBABWE and THERESA BELL and STANLEY NAZOMBE
Ruled By: TAKUVA J

It is the policy of the law that there should be finality to litigation – see Deweras Farm v Zimbank 1997 (2) ZLR 47.
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HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MARQUE MBATHA
Ruled By: MATHONSI J

I must, however, express my profound disappointment at the unacceptable delays that have occurred in this matter. This dispute started more than ten (10) years ago and is still simmering now. Surely, there can be no excuse for delaying a labour dispute for such a lengthy period of time. The respondent, who I must add, presented very ...
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HH225-15 : RITA MARQUE MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: CHATUKUTA J

The harm caused by these multiple applications is not only to the respondent. It extends to the administration of justice. The courts are being laden with unfounded applications. The applicant exhibited a good understanding of the law despite of being a self-actor. She, in fact, filed heads of argument (in which she enunciated principles of law supported ...
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HB173-16 : SWEET SWEET vs JONATHAN NKANYENZI and BOY DUBE and DOUGLAS NDLOVU and MOFFAT NDLOVU and NTANDO DUBE and PATRICK TSHUMA
Ruled By: MATHONSI J

What is of immediate concern is that the applicant obtained a provisional order on 18 December 2008 - 8 years ago. He has been sitting on that order up to now and has not bothered to set the matter down for either confirmation or discharge of that provisional order. Litigants are in the unacceptable habit of ...
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HB234-16 : JONATHAN DUBE vs SIYAPHUMELELA COLLECTIVE FARMING CO-OPERATIVE SOCIETY and DEPUTY SHERIFF
Ruled By: TAKUVA J

This is an urgent chamber application wherein the applicant seeks the following interim relief: “Pending the determination of this matter, the applicant is granted the following interim relief: 1. The respondents be and are hereby interdicted from removing the applicant's matter from the property known as certain piece of land being Lot 1 of Copthal Block 2 situate in ...
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Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

Kantor Immerman, in the face of uncompleted litigation, could not just abandon that, retrieve from their drawers the old order of 9 May 2001, and, five years later, present it before the Registrar of Deeds as the authority for their client to take transfer of the property without warning the applicants….,. The fourth aspect was ...
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View Appeal
CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

The rationale behind the principle of finality of judgment was explained in Indian Council for Enviro-Legal Action v Union of India (2011) 8 SCC 161, where dalveer bhandari j noted that this is because, more often than not, one party or the other will always be aggrieved by a judgment of a court. There is only a right ...
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HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL
Ruled By: MATHONSI J

Forum shopping is what this matter is all about….,. I do not agree with counsel for the applicant that the penalty imposed by the disciplinary committee in this matter is a glaring invalidity that is staring the court in the face which cannot be ignored. That committee had authority to impose a penalty of dismissal. If ...
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HH184-15 : ANDREW CRANSWICK vs RETIRED MAJOR GENERAL HAPPYTON BONYONGWE
Ruled By: ZHOU J

The principle of finality in litigation is one that this court values. It must, however, be balanced against the need to do justice between the parties to litigation. Taking into account all the relevant factors, I am convinced that good and sufficient cause has been established for this court to set aside the default judgment. ...
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HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

Should our courts be courts of law or courts of justice? One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; ...
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SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...
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HH226-11 : CHRISTOPHER SHAVA vs BERGUS INVESTMENTS (PRIVATE) LIMITED and MESSENGER OF COURT
Ruled By: CHIWESHE JP and MUTEMA J

The bare bones of the dispute in this appeal are these: The appellant and the first respondent entered into a lease agreement for premises situate at 26 East Road, Belgravia, Harare on 16 May 2003. On 14 March 2008, the first respondent, following its cancellation of the lease agreement, obtained an order in the Magistrates' Court under ...