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Division of Co-Ownership Assets re: Dissolution, Identification, Alienation or Disposal and the Actio Communi Dividundo

HH72-12 : STUPENDIS ENTERPRISES (PVT) LTD vs ADMIRE KASI and SARAH KASI and THE REGISTRAR OF DEEDS and COMMISSIONER-GENERAL, ZIMBABWE REVENUE AUTHORITY
Ruled By: HUNGWE J

The applicant seeks an order for specific performance of a contract of sale of an immovable property called Lot 1 of Subdivision 2 of Lot 382A Highlands Estate measuring 4,043 square metres held under Title Deed No.13635/2001, registered in the names of the first and second respondents, husband and wife respectively….,. The second respondent is opposed to ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

On 4 April 2002, the plaintiff issued summons out of this court seeking: (i) Termination of their joint ownership of Lot 3A of York, Goromonzi District, in fair a and equitable manner; (ii) The rendering of a full account of the net rentals from tenants on this property, from January 1993, within thirty days of this order; (iii) The ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

The defendant did not produce any evidence of valuation of the properties. He was content to criticise that produced by the plaintiff. He proposed a general method of distributing the properties which was not based on value but on square metres...,. While he preferred that square metres be used to apportion the properties, he was ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

It was common cause that the plaintiff's claim was based on the actio communi dividundo. According to JOUBERT JA in Robson v Theron 1978 (1) SA 841 the actio communi dividundo is a claim for the division of joint property. The learned Judge of Appeal stated thus: “The actio communi dividundo has a two-fold purpose, viz. to claim ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

Robson v Theron 1978 (1) SA 841..., sets out the nature and effect of the actio communi dividundo, and then summarises it..., in these words: “(B) The principles of the common law applicable to the actio communi dividundo may be briefly summarised as follows; 1. No co-owner is normally obliged to remain a co-owner against his will. ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

The court has a wide discretion in partitioning, and distributing, the joint property. It is guided by what is fair and equitable in the circumstances before it. The Laws of South Africa (LAWSA)..., graphically outlines the extent of the discretion in these terms: “If the parties cannot agree on the terms of partition, or on the appointment of ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

Counsel for the plaintiff urged me to accept the evidence that was led by Nikita Masaya, Trenly Miles, and Anthony Derek Lamb..., He submitted, on the authority of Maketo Anor v Wood Ors 1994 (1) ZLR 102 (H) at 131, that the evidence on value was sufficient for me to ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

It would appear, on the authority of Phillip Robinson Motors (Pty) Ltd v N.M.Dada (Pty) Ltd 1975 (2) SA 420 (A)..., and Parish v King 1992 (1) ZLR 216 (S)..., that the plaintiff ought to have launched a delictual claim for the disposal of what would have been joint property. Parish v King ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

In resolving the issue before me, I will be guided by the principles that I have set out in regards to the wide discretion that I have, and the law, to achieve an equitable apportioning of the four properties, and the bakery business. Even though Mhangura Bakery is a partnership, it is within my common ...
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Appealed
SC79-14 : DOUGLAS TANYANYIWA and DOUGLAS WARRIORS FOOTBALL CLUB vs LAWRENCE BERNARD GWARADA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

This is an appeal against a judgment of the High Court (MUTEMA J) granting the respondent's claim against the appellants for payment of $72,340= as well as interest at the prescribed rate from the date of summons to the date of payment in full. The history of the matter is as follows. The plaintiff runs a tour operator ...
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HH126-11 : LAWRENCE BERNARD GWARADA vs DOUGLAS TANYANYIWA and DOUGLAS WARRIORS FOOTBALL CLUB
Ruled By: MUTEMA J

A holistic look at the plaintiff's evidence and the probabilities yields clearly that the Agreement could not have been for the 2009 soccer season only. 40% stake was to be bought in 2009 and 9% on or before 31 January 2010 to add up to a total stake of 49% in the second ...
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Appealed
SC11-15 : PERUKE INVESTMENTS (PRIVATE) LIMITED vs WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR. JUSTICE (RETIRED) A.R. GUBBAY SC
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

FACTUAL BACKGROUND The appellant and the first respondent purchased two adjoining Stands (nos. 894 and 895) respectively, with a building (Lonrho House) straddling both Stands. The two properties are held under separate Deeds of Transfer. The greater portion of the building rests on Stand No. 894. It is common cause that the appellant paid 70 per ...
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HH49-15 : AMEN SITHOLE vs RINNEX OIL (PVT) LTD
Ruled By: ZHOU J

The plaintiff issued summons claiming against the defendant payment of a sum of US$28,350= together with interest thereon at the prescribed rate from the date of summons to the date of full payment, and costs of suit. The money, according to the plaintiff's declaration, was paid to the defendant pursuant to an agreement concluded in September 2009 ...
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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 must be regretting tying her retirement, and, indeed, the twilight of her career to an estate agency business that had the second respondent in it….,. It must be appreciated that the moment the parties elected to conduct their business through the medium of an incorporation they were making the conscious decision to be governed by ...
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HH103-15 : RICHARD MATTHEWS vs THE HONOURABLE MR JUSTICE A. EBRAHIM and UMESHKUMAR DWARKADAS KOTECHA and DHIRUBHAI MAGANLAL DESAI
Ruled By: ZHOU J

The background facts are largely common cause and are ably set out in the arbitral award. They are as follows: In 2003, a trust was constituted by the applicant under the name “The Matthews Family Trust” (hereinafter referred to as “the Trust”). One Peter Lewis Bailey was the trustee. The beneficiaries were the applicant and his children. ...
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HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

An application in which the applicant moves the court to declare him the sole owner of the property which he and another person jointly purchased from the seller is misplaced. A fortiori when the application excludes his co-purchaser whose views remain unknown to the court.
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HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

I believe the year 1989 is a good starting point for the story of one John Chidyiwa, the Managing Director of the plaintiff, and the defendant. Then, the two knew each other as work-mates in the Department of Customs and Excise (as it was then known). In or about 1993, the two became quite close friends. ...
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HH49-10 : HENRY NYOKA vs JENNIFER MUREZA
Ruled By: MAVANGIRA J

In Marange v Chiroodza 2002 (2) ZLR 171…, the following is stated:“In Roman Dutch Law, there is no presumption of equality of shares in a partnership, but the share of each partner is in proportion to what they have contributed.”...,.In Chapeyama v Matende Anor 1999 (1) ZLR 534…, ...
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HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.The circumstances surrounding this application are as follows:The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent ...
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HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE J

According to Annexure “C” tendered by the applicant, which is a letter dated 14 January 2013, from City of Harare, the decision to sell rented properties to sitting tenants was only made in about 1980.The deceased was offered the property to buy on 1 January 1981 and he signed his ...
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HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

A superior court should always be slow to intervene in unterminated proceedings of an inferior court and will ordinarily not sit in judgment over a matter that is before the court below except in very rare situations where a grave injustice would occur if the superior court does not intervene.Although ...