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Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

The applicant seeks appointment as the sole guardian of the minor child, Roxanne Chantal Van Vuuren, born 1 December 1994. She is the mother of the child.Her marriage to the girl's father was terminated by consent by order of this Court on 7 August 2002 in case number HC2367/2002. The ...
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HH134-12 : EVANGELIST SANDE (nee NYAMANGUNDA) vs TAKAWIRA KIZITO SANDE
Ruled By: CHITAKUNYE J

In 1989, the plaintiff and defendant married each other in terms of customary law. Their marriage was however not registered. After a period of about ten years living together in the manner of husband and wife they decided to have their marriage solemnized in terms of the Marriages Act [Chapter ...
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HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

In the instant case, whichever way one looks at the facts – either from the position of the issues agreed at the joint pre-trial conference, or the legal position as perceived, the plaintiff has hopelessly failed to discharge the onus to have the defendant visited with liability. Consequently, the plaintiff's claim is dismissed with costs.
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Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

Whether the first defendant was aware of the legal wrangle between the plaintiff and the second defendant and third defendant and thus a mala fide or a bona fide purchaser of the propertyThis issue arose from the averment that was first made by the plaintiff's husband in his founding affidavit that the first defendant was ...
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HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

The onus to establish that he was known to..., lay with the plaintiffs. They failed to discharge that onus.
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

..., I consider this unchallenged evidence..., as common cause.
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HB10-12 : NOBERT KATERERE vs STANDARD CHARTERED BANK ZIMBABWE LTD
Ruled By: NDOU J

The onus is on the plaintiff. It is common cause that the alleged Agreement was not in writing. The question, therefore, is whether the plaintiff has adduced evidence which on a balance of probability proves the existence of the alleged Agreement...,. The evidence for the defendant is documentary evidence and knowledge of the banking policies ...
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HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

Fraud should not only be pleaded but must be proven. The cession involved a third party who is the secretary of the board of the municipality who would not have approved it if there was fraud. There is a presumption of regularity.
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Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and ...
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HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

The standard of proof in criminal proceedings is ordinarily proof beyond reasonable doubt whereas that for civil wrongs is proof on a balance of probabilities.
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HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA
Ruled By: MAVANGIRA J

The denials by the defendant of the plaintiff's claim that he would expend his attentions and finances on his various adulterous relationships, and neglected his family, are baseless and ought to be dismissed as untrue. The probabilities tend to support the plaintiff's testimony as to the defendant's wayward conduct in the various respects that she stated.
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HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.The first and second respondents are directors of the third respondent, which is also a safari operator.The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for ...
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Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

On 26 August 2005, the plaintiff issued summons out of this court seeking an order setting aside the appointment of the first defendant as Chief Nyajina-designate; directing that the second and third defendants take into account and abide by the values, traditions, and customary principles of succession of the VaZumba ...
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HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.The letter of explanation was ...
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HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

The bulk of the evidence led by either party centred on the events that took place on 18 June and 22 June 2009...,. The onus to establish what transpired lies with the plaintiff. The plaintiff estimated that more than 20 owners and tenants attended the first meeting...,. He set out the purpose of the meeting. He ...
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SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

As regards the amount that was allegedly misappropriated..., the plaintiff stated that the misappropriation took place between 2001 and 2002. The defendant handed all the books of account to Ian Figg, who in turn surrendered everything to Erasmus, Murphy and Associates, a private secretarial company, who in turn handed all to Lorraine Castedo. In the absence of reconciliation ...
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HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

I accordingly have no hesitation, whatsoever, in holding that the plaintiffs have proved their case against the defendant on a balance of probabilities. For that reason, they are entitled to damages in lieu of specific performance.
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HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.The plaintiff asserted that he entered into the agreement with ...
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HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

The applicant herein is the registered owner of an immovable property commonly known as 425 Dandaro Village. The applicant has owned the property since April 2004. In this matter, the applicant is seeking the eviction of the respondent from the premises. The respondent is opposed to the granting of the relief being sought....,. The respondent contends, further, that ...
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HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town. In June 2007, the plaintiff consulted the defendant complaining of sensitivity to ...
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HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

The plaintiff and the defendant are husband and wife. They married each other on 8 January 1993 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with three children, Frank (born 6 March 1993), Margret (born 23 September 1997), and Emmanuel (born 24 June 2005). During the ...
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HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

He who avers must prove.
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HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

Counsel for the applicant submitted that not all the requirements of lis alibi pendens were met in this case, and, in particular, that the parties' are not the same, maintaining that Bishop Kunonga is not the applicant – “He is only its Chairman. You do not find the status of a party in the deponent that ...
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HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA
Ruled By: KAMOCHA J

The plaintiff failed to discharge her onus of proving that there was damage caused during the tenure of the defendant. If the defendant had caused any damage to the premises, the plaintiff would have confronted the defendant about it immediately. She would also have reported the matter to the police without any culpable delay. In the ...
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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

I now turn to consider whether or not the occupation of the property by the first and second defendants is unlawful, whether or not the Agreement of Sale between the first and second defendants and the third defendant still subsists, and whether or not, in purchasing the property from the third defendant, the plaintiff was ...
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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

It was submitted on the plaintiff's behalf that even is this court were to find that the first and second defendants had proved that their Agreement with the third defendant was not validly cancelled, and that the plaintiff had no bona fide and reasonable belief that it had been validly cancelled, the court had ...
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HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

Balance of ConvenienceIn any event, even if I am wrong as to the first respondent's prospects of success on appeal, it remains necessary to consider the balance of convenience and the potentiality of prejudice to the parties in casu.According to the papers before the court, at the time of instituting this application, the applicant had emplaced ...
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HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

In its plea, the second defendant denied the contract in toto and put the plaintiffs' to the proof thereof.
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HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.The applicants challenge the validity ...
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HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

In essence, the plaintiff is alleging a short delivery of the diesel that it ordered and paid for. To prove its case, all the plaintiff had to do was to set up its paper trail showing the order, proof of payment on that order, and the deliveries received against that order thereby revealing the ...
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HH68-10 : ALVIN CRISP vs STELLA MARY MASVIKENI
Ruled By: MUSAKWA J

The defendant also sought an order for the plaintiff to account for rentals in respect of the Chisipite property. However, it is not clear which period the defendant wanted the plaintiff to account for. If it is the period prior to February 2009, before the introduction of multiple currencies, the plaintiff's evidence was that he used ...
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HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July ...
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SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

Standard Chartered Bank Zimbabwe (“the appellant”) or (“the Bank”) is a commercial bank registered and operating in Zimbabwe.The respondent is a company duly incorporated in terms of the laws of Zimbabwe and was carrying on business in Redcliff, Zimbabwe. It is a foreign investor whose specific purpose was the refurbishment ...
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HH149-10 : FOOLPROOF ENTERPRISES (PRIVATE) LIMITED vs SURFACE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

The plaintiff demonstrated, on a balance of probabilities, that it delivered dwarf coal to the defendant's premises. It was not disputed that the weighbridge tickets that were raised by the defendant described the product that was delivered as dwarf coal. The evidence adduced by Patience Muyambo was at variance with the standard operation manual that ...
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HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

The plaintiff issued summons claiming damages arising from a motor vehicle accident which occurred on 18 May 2007. The plaintiff's claim is founded on allegations that the accident was solely due to the negligence of the first defendant in that:(a) He attempted to overtake another vehicle in the face of ...
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HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

The mode of payment of the purchase price would be one of the terms that the parties would have agreed upon when concluding the Agreement of Sale. In this instance, the applicant has not been able to establish on the papers what the parties had agreed to in relation to the payment.
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HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

Disposition All of the issues for determination in casu were raised by the defendant in order to resist the plaintiff's claim for ejectment. Each of these issues constitutes a special defence in respect of which the onus of proof, on a balance of probability, lies squarely on the defendant. See M.B. Investments (Pvt) Ltd v Oliver ...
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HH147-10 : LAWRENCE SHUMBAYAONDA vs MADHATTER MINING (PRIVATE) LIMITED
Ruled By: HUNGWE J

As for the entitlement to the Isuzu KB320 registration 780-824W, the plaintiff came nowhere near proving this as an entitlement. It remains the company's property. In the result, the plaintiff's claim is dismissed with costs. On the other hand, I find that the defendant's counterclaim succeeds with costs. It shall so be ordered.
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HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

It was agreed at the pre-trial conference, held on 28 April 2010, that the onus to establish the overpayment was on the defendant. At the trial, the duty to begin fell on the defendant. In the bid to prove its counter-claim, the defendant called the evidence three witnesses, and produced seven documentary exhibits. The defendant's witnesses ...
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HH202-10 : OBRIDGE ENTERPRISES (PVT) LTD vs PULWICK ENTERPRISES (PVT) LTD
Ruled By: KUDYA J

At the commencement of the trial, I ruled that the defendant had the duty to begin as the evidentiary onus to show that it returned 2,484 bags of mealie meal to the plaintiff lay on it.
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HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

Counsel for the plaintiff said, in casu, all the plaintiff had to do was to establish, on a balance of probabilities, that there were amounts of money still outstanding in terms of the loan facility. He submitted that given the circumstances of the case “the plaintiff was entitled to judgment in the sum of US$80,421=84 ...
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HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

THE RESOLUTION OF THE ISSUE OF LIABILTY I proceed to determine the issue of liability in the light of the evidence led and the submissions made at the trial. Whether or not the accident was caused either as result of the negligence of the first defendant or the condition of the tractor and trailer; or by both. The onus ...
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HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

Felix Dzumbunu was asked to produce, but could not, documentary proof that the Z$6,6 million was returned to Denrose Real Estate. He was however surprised by the suggestion that the plaintiff had never received that money as the agents in their correspondence never disputed that they had received the money. The said correspondence was not, however, produced ...
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HH240-10 : DOREEN SAGANDIRA vs PATRICK SAGANDIRA
Ruled By: MAVANGIRA J

It is at this stage also appropriate to comment about the defendant's allegation that the plaintiff stole some money from the Drought Relief Programme and that this is the money which she later claimed to have invested in the family's business. The plaintiff denied the allegation. The defendant did not place any evidence before the court ...
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HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

It may also be noted that in his evidence in court the plaintiff still did not adduce such evidence as to answer the issues referred to trial on his claim.
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HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA J

As to what the applicant's obligations as a surety under the contract he signed I am of the view that that is the dispute that has been brought to court by the respondent in the damages claim filed against the applicant. It seems to me that the interpretation of the Suretyship Agreement has not ...
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HH268-10 : TOTAL ZIMBABWE (PRIVATE) LIMITED vs APPRECIATIVE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

The parties differed on whether or not the defendant was aware of the rentals that were due in foreign currency before the service of summons. The pith of Lovemore Tichaona Kuwana's evidence was that he personally handed the statements of rentals due to the defendant's Managing Director, Ronald Mhlanga, on the due dates until the lease ...
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