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HB03-15 - LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA

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Procedural Law-viz summary judgment re Rule 64 of the High Court Rules.
Law of Contract-viz debt re contractual debt.
Procedural Law-viz final orders re enforcement of court orders iro writ of execution.
Procedural Law-viz summary judgement re eviction proceedings.
Procedural Law-viz judicial attachment re dwelling.
Procedural Law-viz judicial attachment re residential premises.
Procedural Law-viz cause of action re legal basis for invoking the jurisdiction of the court.
Procedural Law-viz judicial sale in execution re dwelling.
Procedural Law-viz judicial sale in execution re residential dweling.
Procedural Law-viz jurisdiction re equity considerations iro civil proceedings.
Procedural Law-viz final orders re equity considerations iro civil proceedings.
Procedural Law-viz cause of action re concurrent civil and criminal proceedings iro double jeopardy.
Procedural Law-viz service of court process re the audi alteram partem rule.
Procedural Law-viz audi alteram partem rule re service of process.
Procedural Law-viz cause of action re concurrent criminal and civil proceedings iro section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Estate Law-viz composition of deceased estate re non-estate assets iro property under judicial attachment as at the date of death.
Procedural Law-viz judicial attachment re dwelling iro Rule 348A of the High Court Rules.
Procedural Law-viz judicial sale in execution re residential premises iro Rule 348 of the High Court Rules.
Procedural Law-viz final orders re effect of orders of court iro personal hardships.
Legal Practitioners-viz right of audience before the court re litigants in person.
Legal Practitioners-viz right of audience before the court re self-actors.

Final Orders re: Writ of Execution, Enforcement of Judgments iro Approach, Execution Powers and Superannuated Orders


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. 

The respondent entered appearance to defend and the applicant then filed this application.

Proof of Service, Return of Service, Address and Manner of Service re: Approach


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1. That her husband was very ill at the time;...,.

(i) The first is devoid of merit because there is no indication on the papers that Richard Dunduza was not properly served in terms of the Rules of this court.

Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1. That her husband was very ill at the time;...,.

(i) The first is devoid of merit because there is no indication on the papers that Richard Dunduza was not properly served in terms of the Rules of this court.

Cause of Action and Draft Orders re: Exceptions iro Concurrent Criminal & Civil Proceedings & Concept of Double Jeopardy


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1....,. 

2. That there is no proof that her late husband, Richard Dunduza, stole the applicant's money because the applicant issued summons before the criminal matter had been finalised in court;...,.

(ii) As regards the second, it is trite that the institution of criminal proceedings does not preclude a party from instituting a civil action against the same party in the criminal proceedings: see section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides that:

“Neither a conviction no acquittal following any prosecution shall be a bar to a civil action for damages at the instance of any person who may have suffered any injury from the commission of any offence.”

Division of Estate Property re: Registration, Composition of Deceased Estate, Creditors Claims and Non-Estate Property


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1....,. 

2....,. 

3. That the property in question is part of the deceased estate and therefore any claims should be made via the Master of the High Court....,.

(iii) The third proposed line of defence lacks bona fides in that the property was attached before the respondent's husband died; therefore, it is clearly excluded from the husband's estate.

Judicial Eviction, Attachment and Order re: Approach and Alienation or Disposal of Property Under Judicial Attachment


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1....,. 

2....,. 

3....,. 

4. That she is a widow who is struggling to raise her four (4) children....,.

(iv) Finally, the respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's Rules to try and stop the sale of a dwelling.

Judicial Sale in Execution re: Approach, Suspension, Setting Aside, Foreclosure Proceedings and Forced Sales


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1....,. 

2....,. 

3....,. 

4. That she is a widow who is struggling to raise her four (4) children....,.

(iv) Finally, the respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's Rules to try and stop the sale of a dwelling.

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1....,. 

2....,. 

3....,. 

4. That she is a widow who is struggling to raise her four (4) children....,.

(iv) Finally, the respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's Rules to try and stop the sale of a dwelling.

Jurisdiction re: Approach, Concurrent Jurisdiction, Statutory, Procedural and Contractual Jurisdictional Ousting


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1....,. 

2....,. 

3....,. 

4. That she is a widow who is struggling to raise her four (4) children....,.

(iv) Finally, the respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's Rules to try and stop the sale of a dwelling.

Summary Judgment: Clear and Unanswerable Claims re: Approach


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1. That her husband was very ill at the time;

2. That there is no proof that her late husband, Richard Dunduza, stole the applicant's money because the applicant issued summons before the criminal matter had been finalised in court;

3. That the property in question is part of the deceased estate and therefore any claims should be made via the Master of the High Court.

4. That she is a widow who is struggling to raise her four (4) children.

In my view, none of the proposed defences has any merit:

(i) The first is devoid of merit because there is no indication on the papers that Richard Dunduza was not properly served in terms of the Rules of this court.

(ii) As regards the second, it is trite that the institution of criminal proceedings does not preclude a party from instituting a civil action against the same party in the criminal proceedings: see section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides that:

“Neither a conviction no acquittal following any prosecution shall be a bar to a civil action for damages at the instance of any person who may have suffered any injury from the commission of any offence.”

(iii) The third proposed line of defence lacks bona fides in that the property was attached before the respondent's husband died; therefore, it is clearly excluded from the husband's estate.

(iv) Finally, the respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's Rules to try and stop the sale of a dwelling.

For these reasons, I find that the respondent has no bona fide defence to the applicant's claim for eviction. She has not raised any triable issues.

Accordingly, it is ordered that:

1. Summary judgment be and is hereby granted to the applicant in case number HC1841/13 in respect of the eviction of the respondent and all those claiming occupation through her from the property known as Number 9469 Nkulumane, Bulawayo.

2. There shall be no order as to costs.

Practicing Certificates and Right of Audience before Courts re: Self Actors and the Presumption of Knowledge of the Law


This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1. That her husband was very ill at the time;

2. That there is no proof that her late husband, Richard Dunduza, stole the applicant's money because the applicant issued summons before the criminal matter had been finalised in court;

3. That the property in question is part of the deceased estate and therefore any claims should be made via the Master of the High Court.

4. That she is a widow who is struggling to raise her four (4) children.

In my view, none of the proposed defences has any merit:

(i) The first is devoid of merit because there is no indication on the papers that Richard Dunduza was not properly served in terms of the Rules of this court.

(ii) As regards the second, it is trite that the institution of criminal proceedings does not preclude a party from instituting a civil action against the same party in the criminal proceedings: see section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides that:

“Neither a conviction no acquittal following any prosecution shall be a bar to a civil action for damages at the instance of any person who may have suffered any injury from the commission of any offence.”

(iii) The third proposed line of defence lacks bona fides in that the property was attached before the respondent's husband died; therefore, it is clearly excluded from the husband's estate.

(iv) Finally, the respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's Rules to try and stop the sale of a dwelling.

For these reasons, I find that the respondent has no bona fide defence to the applicant's claim for eviction. She has not raised any triable issues.

Accordingly, it is ordered that:

1. Summary judgment be and is hereby granted to the applicant in case number HC1841/13 in respect of the eviction of the respondent and all those claiming occupation through her from the property known as Number 9469 Nkulumane, Bulawayo.

2. There shall be no order as to costs.

Application for Summary Judgment

TAKUVA J: This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

Applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from defendants the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands). Applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784,00 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale”.

This order was granted on 29 April 2010 and shortly thereafter on 7 May 2010, applicant obtained a writ of execution against 1st defendant one Richard Dunduza's immovable property being stand number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

Respondent who is the spouse of Richard Dunduza and is in occupation of the house has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by respondent and those occupying the property through her.

Applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of respondent under HC1841/13. Respondent entered appearance to defend and applicant then filed this application.

As pointed out in my introductory remarks the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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 in the summons and costs.”

Applicant in casu had contended that respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue therefore is whether or not the respondent has a bona fide defence – see Van Hoogtraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S) and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of respondent's notice of opposition reveals the following defences:

1. that her husband was very ill at the time;

2. that there is no proof that her late husband Richard Dunduza stole applicant's money because applicant issued summons before the criminal matter had been finalised in court;

3. that the property in question is part of the deceased estate and therefore any claims should be made via the Master of the High Court.

4. that she is a widow who is struggling to raise her 4 children.

In my view, none of the proposed defences has any merit:

(i) The first is devoid of merit because there is no indication on the papers that Richard Dunduza was not properly served in terms of the rules of this court.

(ii) As regards the second, it is trite that the institution of criminal proceedings does not preclude a party from instituting a civil action against the same party in the criminal proceedings – see section 4 of the Criminal Procedure and Evidence Act (Chapter 9:07) which provides that:

“Neither a conviction no acquittal following any prosecution shall be a bar to a civil action for damages at the instance of any person who may have suffered any injury from the commission of any offence.”

(iii) The 3rd proposed line of defence lacks bona fides in that the property was attached before respondent's husband died. Therefore it is clearly excluded from the husband's estate.

(iv) Finally, respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's rules to try and stop the sale of a dwelling.

For these reasons I find that respondent has no bona fide defence to the applicant's claim for eviction. She has not raised any triable issues.

Accordingly, it is ordered that:

1. Summary judgment be and is hereby granted to applicant in case number HC1841/13 in respect of the eviction of the respondent and all those claiming occupation through her from the property known as number 9469 Nkulumane, Bulawayo.

2. There shall be no order as to costs.





Lazarus & Sarif, applicant's legal practitioners

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