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Shareholding re: Allotment, Issue, Equity Transactions, Alienation or Disposal of Corporate Assets and Notifiable Mergers

HB92-09 : CLYDE HOWARD vs KLIPSPRINGER ENTERPRISES (PVT) LTD and ACTION ENGINEERING AND FENCING (PVT) LTD and STANLEY STADDON and THE REGISTRAR OF COMPANIES N.O.
Ruled By: NDOU J

Basically, the plaintiff seeks an order that he be declared to be an owner of 50% shares in the first and second defendants.The issues for determination, as agreed by the parties at the pre-trial conference, are in the following terms:“1. Whether or not plaintiff is entitled 50% shares in 1st and 2nd defendants. 2. Whether or not when ...
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Appealed
HH72-10 : EDWARD GARDNER vs DAMPIER DEVELOPMENT and V MANGAMI and KIDS MHANGAMI and EXPORT CREDIT & GUARANTEE CORPORATION PL and REGISTRAR OF DEEDS
Ruled By: MAKONI J

The applicant and the first respondent entered into an agreement of sale in respect of a 4.2% undivided share, being share number E8 and 90.15% undivided share being share number J4 of a certain piece of land situate in the District of Salisbury called the Remaining Extent of Stand 759A ...
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HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

The three respondent companies are incorporated in Zimbabwe. BP Africa Limited..., and Shell Petroleum Company Limited..., are corporate entities based in the United Kingdom. They are equal shareholders in both the second and third respondents, while the latter companies are equal shareholders in the first respondent. Impending SaleAs appears from a letter emanating from BP ...
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HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

...,. It is trite that the shares of a company vest in its shareholders, and are subject to their ownership and control, to the exclusion of any other person or entity. In the case of a holding company, it is entitled to control and dispose of its shares in its subsidiary company, but it ...
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Appealed
SC22-15 : ZIMCOR TRUSTEES LIMITED and BOKA INVESTMENTS (PRIVATE) LIMITED and MATTHEW BOKA vs WEBSTER TONGOONA RUSHESHA AND OTHERS
Ruled By: MALABA DCJ, GARWE JA and PATEL JA

This judgment consolidates two separate appeals, namely, case nos. SC453/13 and 446/13, which were heard together by special request and consent of all the parties concerned. They both involve the sale of shares and assets in the same company, initially by the first respondent to the first appellant, and then subsequently, by the first ...
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HH201-10 : MABONDE AGRICULTURAL SERVICES and JACOB MABONDE and HAZEL MOYO vs SENTRIDGE INVESTMENTS (PRIVATE) LIMITED and PK CHIVAURA and O CHIKONYORA and OTHERS
Ruled By: BHUNU J

The evidence led at this trial establishes that, apart from the second plaintiff, no other shareholder in Mabonde Enterprises (Pvt) Ltd authorized or granted Sibangilizwe Moyo a power of attorney to dispose of its two farms in question. It is trite that Sibangilizwe Moyo, being a mere agent of the second plaintiff, had no power ...
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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 respondent's case is, alternatively, that, in any event, section 183 of the Companies Act [Chapter 24:03]…, does not apply in this case. It is the respondent's argument that what happened here is that the shareholders in the company (3rd to 7th respondents) sold their shares. Mr Louw did not sell the company assets. ...
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HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The then applicant, Isabel Fumia, was married to the late Ettore Pietro Fumia. The first respondent, George Stephen Fumia, and the second respondent, Ellen Maria Fumia, are husband and wife. The first respondent, George Stephen Fumia, is the first son of the late Ettore Pietro Fumia having been born to the late Ettore Pietro Fumia ...
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HH348-13 : THE TRUSTEES OF THE LACEROSE TRUST and LACEROSE INVESTMENT (PRIVATE) LIMITED vs ZIMCOR TRUSTEES (PRIVATE) LIMITED and FRANK BUYANGA and TENDAI MUPFURUTSA and OTHERS
Ruled By: MAKONI J

The other point raised by the applicant is whether, even if the third respondent was a Director, he could lawfully do what he did, in view of the provisions of section 183(1)(b) of the Companies Act [Chapter 24:03]. Section 183(1)(b) of the Companies Act [Chapter 24:03] provides: (1) Notwithstanding anything in the articles, ...
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HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL
Ruled By: NDOU J

There seems to be prospects of success on the merits in that the first applicant in casu did not sell the property in question. Only shares in the first applicant were transferred by previous shareholders to new shareholders. There is an arguable case on whether this constitutes the transfer of the immovable property thus granting ...
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HB154-11 : NATIONAL BLANKETS LIMITED vs DAVID WHITEHEAD TEXTILES LIMITED
Ruled By: KAMOCHA J

The background information of this matter is that National Blankets Limited and David Whitehead Textiles Limited were at one time subsidiaries of Lonrho Africa which owned 88.06% of the shares in David Whitehead Textiles Limited through a company known as Textile Investments Company. David Whitehead Textiles Limited, in turn, owned 100% of the shares in ...
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HHH565-14 : JOHN OSWALD MEIKLE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

Finally, it follows from the above analysis, that upon the compulsory acquisition of land, the company lost its rights in the land. But the company continued to exist. What was compulsorily acquired, through gazetting by the State, was the land, not the company. What was sold were shares in the company, EC Miekle (Pvt) Ltd, no ...
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Appealed
SC55-16 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED
Ruled By: MALABA DCJ, GOWORA JA and BHUNU JA

Counsel for the appellants sought to argue that when the respondent paid for the forty percent shares, it became a shareholder and hence asking for the US$400,000= back would amount to the respondent buying its own shares. When the court asked for proof that the respondent owned the shares in the form of a ...
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HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

The applicant approached this court seeking interdictory relief against the respondent. The applicant holds mining rights to a mining location called Elorado Mine. It was incorporated on 29 May 2009 and the respondent and his daughter, Chen Xiandong, were the initial Directors and subscribers who held sixty and forty ordinary shares respectively. The applicant's position is that the respondent, ...
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HB140-16 : ADELE FARQUHAR vs BANKNOTE ENTERPRISES (PVT) LTD t/a BANKABLE REAL ESTATE and RODWELL MBIRIMI and BETTY MBIRIMI
Ruled By: MATHONSI J

The applicant was allotted 500 shares and issued with a share certificate on 14 January 2014…,. The applicant was therefore a shareholder and a contributory to the first respondent company. It is a fact that cannot be wished away…,. For the applicant to lose her shareholding something had to happen to her 500 shares. She had to alienate ...
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HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.The applicant was charged with fraud as defined in section 136 of ...
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HH203-15 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and and SANDRA MUIR and REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

This is an application for a joinder. The draft order attached to the application reads as follows:- “1. The 6th Respondent be and is hereby joined as the 6th Respondent in Case No. HC1393/08. 2. The 6th Respondent shall, if he wishes to defend the 1st and 2nd Applicants' claim, file a Notice of Opposition within (10) ten days of service ...
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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

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets. These cardinal principles seem ...
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Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...
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SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

This is an appeal against a judgment of the High Court handed down on 18 May 2016. BACKGROUND FACTS The facts which gave rise to this appeal are somewhat convoluted. Earthmoving Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe. The Company ...
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SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

AD GROUND 5 - WHETHER THE COURT A QUO SHOULD HAVE FOUND THAT THE FIRST APPELLANT WAS THE SOLE REGISTERED OWNER OF THE SECOND APPELLANT The contention made in respect of this ground was to the effect that Leggett did not transfer his shareholding. The allotment to him of the ninety-eight shares was done in December ...
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Appealed
SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 18 July 2018 in which it ordered the appellant to deliver to the respondent 167,275 Old Mutual Public Limited Company shares within 10 days of the date of the order. Alternatively, it ordered the appellant ...
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HH444-18 : TAPIWA NALOMWE vs NICHOLAS VAN HOOGSTRATEN
Ruled By: ZHOU J

The plaintiff instituted the summons in casu claiming the following relief against the defendant:“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant ...
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Appealed
SC66-20 : BREASTPLATE SERVICE (PRIVATE) LIMITED vs CAMBRIA AFRICA PLC
Ruled By: GWAUNZA DCJ, PATEL JA and MAKONI JA

This is an appeal against the judgment of the High Court ordering the appellant to pay the outstanding amount due to the respondent in United States dollars (USD) as opposed to its Real Time Gross Settlement (RTGS) equivalent.The relevant background to this matter is as follows;On 25 February 2016, the ...
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HMT55-19 : CAMBRIA AFRICA PLC vs BREASTPLATE SERVICES (PRIVATE) LIMITED T/A NEMCHEM INTERNATIONAL
Ruled By: MUZENDA J

On 24 December 2018 the plaintiff issued summons against the defendant claiming the following:1. Payment of US$31,400.2. Interest thereon at the prescribed rate of interest per annum from 19 January 2018 to the date of payment in full and final settlement.3. Interest at the prescribed rate from 1 March 2016 ...
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SC83-20 : ARISTON HOLDINGS LIMITED vs THE COMPETITION AND TARIFF COMMISSION OF ZIMBABWE
Ruled By: GWAUNZA DCJ, PATEL JA and MAKONI JA

This is an appeal against a decision of the Administrative Court upholding the penalty imposed on the appellant by the respondent for the non-notification of a merger that it was a party to.FACTUAL BACKGROUNDThe appellant is a holding company registered and operating in Zimbabwe whose shares are tradable on the ...
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SC52-18 : INNSCOR AFRICA LIMITED and GERIBRAN SERVICES (PRIVATE) LIMITED vs COMPETITION AND TARIFF COMMISSION
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

This is an appeal against the judgment of the High Court holding that a conglomerate is a “merger” as defined in terms of section 2 of the Competition Act [Chapter 14:28] (“the Act”), and, therefore, notifiable to the respondent in terms of section 3A of the Competition Act if its ...
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SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

This is an appeal against the judgment of the High Court, absolving the respondent from the instance at the close of the appellant's case as plaintiff in that court.The FactsThe appellant is a statutory body set up in terms of section 4 of the Competition Act [Chapter 14:28] (“the Act”); ...
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HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:“IT IS ORDERED THAT:1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody ...
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SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

This is an appeal against a judgment of the High Court.The second respondent (“Timba”) and the first and second appellants (“the Rushwayas”) are the majority and minority shareholders respectively in Aepromm Resources (Pvt) Ltd. On 3 May 2011, following a series of lawsuits, the Rushwayas entered into an agreement (“the ...
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HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

On 24 March 2003, three of the beneficiaries of the estate of the late Job Bruno Kadengu filed this application seeking the variation of certain clauses of the Last Will and Testament of the testator.The application was served on the respondents on 2nd April 2003, 17 April 2003, and 16 ...
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HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

The applicant is a Trust duly registered in terms of the laws of this country whereas the fifth respondent is a limited liability company registered in terms of the laws of this country. The first to fourth respondents are sole shareholders and directors in the fifth respondent, Saltana Enterprises (Pvt) ...
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HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant ...
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HH33-12 : BRIAN JUSTICE ENTERPRISES PL vs H.E.R. (PVT) LTD and NITSA OLYMPIOS and PARIS OLYMPIOS and CHRISTOS VENTURAS and REGISTRAR OF DEEDS
Ruled By: HUNGWE J

This matter was placed before me through the Chamber Book on 25 January 2012.After I perused the papers, I directed that the matter be set down for hearing the next day.On this day, the parties addressed me on the issue of urgency. I found the matter to be urgent and ...
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SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.On 10 December 2008, a second summons was issued by the appellant ...
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Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, ...
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HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.The delay in compiling this judgement is therefore attributable to the sheer volume of work ...
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HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...
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HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

This is an interpleader application and the Sheriff of Zimbabwe is the applicant.The facts of this case are interwoven and intricate. It is therefore important that I give a detailed background of the facts preceding this application.For ease of reference, and where the context allows, I will refer to the ...
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SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.FACTSThe details of this case can be summarised as follows:The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment ...
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SSC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and, secondly, operating an unregistered trust in contravention of section 9 of the ...
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SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.THE PARTIESThe first applicant is a former employee of the ...
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HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

What is a share? What rights does it confer to the holder?In Borland's Trustees v Steel Brothers Co Ltd [1901] 1 Ch 279 the plaintiff suggested, that, a share was a sum of money which would be dealt with in a particular manner by what were called, for ...
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HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

This was an application for the setting aside of an arbitration award.The arbitrator, the second responded herein, was a retired Judge of this court.The basis of the application was that the arbitrator had misconstrued the factual basis of the applicant's claim before him. It was also said, that, the arbitrator's ...
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HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.The first application, Case No. HC5186/05, concerns an order for specific performance while ...
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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:“1. An order declaring that:(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing ...
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