Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

This is an application by the Master of the High Court for the removal of the first respondent as executor of the estate of the late Willas Mukati Moyo. The application has been filed in terms of section 117 of the Administration of Estates Act [Chapter 6:01] (“the Act”).The facts ...

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

This is an application in terms of section 52(9)(i) of the Administration of Estates Act [Chapter 6:01].The trial of this matter has taken a long time to finalize for various reasons. The matter was initially filed in this court as a court application in July 2003. When the matter was ...

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

At the conclusion of the trial, I directed that the parties file closing submissions by close of business on 31 October 2008. The plaintiff filed his submissions timeously. Despite numerous reminders to the defendant's counsel, the defendant did not file his submissions. I have therefore proceeded to prepare my judgment ...

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

This is a chamber application in which the first applicant seeks an order in the following terms:“IT IS ORDERED THAT:1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and2. The plaintiff be and is hereby ordered to pay costs of suit.”There is need to set out ...

This is a chamber application in which the first applicant seeks an order in the following terms:

“IT IS ORDERED THAT:

1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and

2. The plaintiff be and is hereby ordered to pay costs of suit.”

There is need to set out the brief facts of the matter which give rise to this chamber application.

Background Facts

The first, second, third, and fourth applicants herein are the first, second, third, and fourth defendants respectively in the main action in which the respondent herein is the plaintiff. This chamber application is made by the first applicant, Elias Kaseke, only and the second to fourth applicants have not made any application….,.

In the main action, the respondent (plaintiff in the main action) issued summons out of this court on 25 August 2010 claiming the following relief against the first to fourth applicants (the first to fourth defendants in the main action):

“Wherefore the plaintiff claims against the defendants;

(a) An order declaring the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited together with attendant rights in property known as Number 22 Kennedine Court, corner 7th and Central Avenue, Harare, from the third defendant to the second defendant and subsequent sale and transfer of same shares and rights from the second defendant to the first defendant held under share certificate number 98 to be null and void, and of no force or effect.

(b) An order setting aside the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited under share certificate number 98, together with attendant rights in property known as Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare, from the third to second defendant, and the subsequent sale and transfer of the same shares and rights from the second defendant to the first defendant held under share certificate number 98.

(c) An order for eviction, forthwith, of the first defendant and any persons claiming occupation through him from certain premises known as Stand Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare.

(d) Costs of suit.”

The basis of the claim, in the main action, is that the respondent (the plaintiff in the main action) was appointed the Executrix Dative of the Estate of the Late Jessie Zengeya who died on 22 September 1992 as per Letters of Administration Number 2597/92.

In casu, the first applicant (the first defendant in main action) resides at Number 25 Armadale Road, Borrowdale, Harare. The second applicant (the second defendant in the main action) is a male adult residing at Number 5 Plymouth Road, Chadcombe, Hatfield, Harare. The third applicant (the third defendant in the main action) is a female adult residing at Number 34 Longford Road, Queensdale, Harare and the fourth applicant (the fourth defendant in the main action) is the Master of the High Court cited in his official capacity.

The dispute in this matter involves certain immovable property known as Number 22 Kennedine Court situated at corner 7th Street and Central Avenue, Harare. It is a unit within a block of flats which block is registered in the name of Kennedine Investments (Pvt) Ltd and is fully known as a certain piece of land situate in the District of Salisbury called No.1137 Salisbury Township measuring 892 square metres and ownership therein being evidenced by the issue of a share certificate in the aforementioned company corresponding to a particular unit in the block.

The property in dispute belonged to the late Jessie Zengeya, who, during her lifetime, did not dispose of this property according to the respondent (the plaintiff in the main action) who was later appointed the Executrix Dative of the same estate and also did not dispose of the property (hereinafter known as No.22 Kennedine Court).

On 26 September 2006, the third applicant (the third defendant in the main action), claiming to be the rightful owner of shares and rights pertaining to No.22 Kennedine Court, purported to sell the share and rights in question to the second applicant (the second defendant in the main action) as per an agreement of sale Annexture D to the respondent's (the plaintiff in the main action) declaration.

The respondent (the plaintiff in the main action) contends that the third applicant (the third defendant in the main action) did not have authority of the Executrix Dative (the respondent) of the Estate of the late Jessie Zengeya to dispose of the property hence her purported sale of the shares and rights of the property pertaining to No.22 Kennedine Court was not only unlawful but fraudulent.

Further, the respondent contends (the plaintiff in the main action) that the relevant consent from the fourth applicant (the fourth defendant in the main action), the Master of the High Court, was not obtained for the disposal of the shares and rights in the property in issue.

The point made by the respondent in the main action is that the third applicant (the third defendant in the main action) had no title in the shares and therefore could not pass title to the second applicant (the second defendant in the main action).

In fact, the first and final administration and distribution account was filed by the respondent (the plaintiff in the main action) in DR5597/92 on 23 September 1994 indicating that the property, No.22 Kennedine Court, was still the property of Estate Late Jessie Zengeya.

On 15 July 2007, the second applicant (the second defendant in the main action) purported to sell the rights, title, and interests in the property, No. 22 Kennedine Court, to the first applicant (the first defendant in the main action) for Zimbabwe dollars $450,000 as per an agreement of sale marked Annexture D to the respondent's (the plaintiff in the main action) declaration.

As a result, a share certificate (Annexture B) was produced in favour of the first applicant (the first defendant in the main action) purportedly showing that the first applicant had purchased 1458 shares in Kennedine Investments (Pvt) Ltd which shares correspond to the use and enjoyment of No.22 Kennedine Court.

As already stated, the respondent (the plaintiff in the main action) contends these shares belong to the Estate of Late Jessie Zengeya and the third applicant (the third defendant in the main action) could not pass title to the second applicant (the second defendant in the main action) who also consequently could not pass title to the first applicant (the first defendant in the main action).

The respondent (the plaintiff in the main action) stated, that, she only became aware of these illegal transactions involving the first, second, and third applicants (the first, second, and third defendants in the main action) sometime in July 2010 upon attempting to serve a notice of eviction on the current occupant of the property. This compelled the respondent (the plaintiff in the main action) to issue summons out of this court against all the applicants (the defendants in the main action) on 25 August 2010.

It is common cause, as per the record, that the second, third, and fourth applicants (all the defendants in the main action) did not enter an appearance to defend in terms of the Rules and the presumption therefore is that they are all barred.

It is only the first applicant (the first defendant in the main action) who entered an appearance to defend on 17 September 2010 after being served with summons on 30 August 2010.

It would appear from the record the respondent (the plaintiff in the main action) did not seek any order against the second and third applicants (the defendants in the main action) after their failure to enter any appearance to defend.

The first applicant filed his plea in terms of the Rules which was served on the respondent (the plaintiff in the main action) on 27 September 2010. The respondent (the plaintiff in the main action) in turn filed her replication on 11 October 2010. No further action was taken in the main matter/action.

This means, that, from 11 October 2010 until 25 October 2011, a period of about 12 months, nothing was done on the main action.

This then prompted the first applicant to file this chamber application, on 25 October 2011, seeking the dismissal of the respondent's (the plaintiff in the main action) claim in the main action for want of prosecution and costs of suit.

I was allocated the chamber application on 21 November 2011 and I directed the first applicant to file proof of service of the application and to cite the relevant Rule/Rules of this court upon which the application is premised.

Counsel for the first applicant only responded to the issues raised on 20 January 2012 and attached the relevant proof of service. In relation to the issue of the Rules of the Court relied upon the response filed is as follows:

“We refer to your letter dated 5 December 2011 wherein the honourable Justice MAWADZE wanted clarification and confirmation of two issues, viz:

(a) Cite the Rule or Rules relied upon; and

(b) Proof of service of this application.

In terms of Order 32 Rule 226, all applications, for whatever purpose, in terms of the High Court Rules, shall be made;

226(a)…,.

(b) As chamber application, that is to say, in writing to a judge.

226(2) An application shall be not be made as a chamber application unless -

(a)…,

(b) These rules or other enactment so provide; or

(c) The relief sought is procedural…,.

The relief that is being sought is procedural.

The plaintiff issued summons out of this honourable court and were served on the applicant on 30 August 2010. The applicant filed a notice of appearance to defend on 17 September 2010. The application was subsequently filed on 24 September 2010. The plaintiff, to date, only filed a replication and no other pleadings in order to advance action.

In terms of Order 9 Rule 61, the defendant is given a right to make a chamber application to dismiss the action for want of prosecution.

We respectfully submit that this matter falls within the provision of the Rules cited above and we pray for an order dismissing the court action for want of prosecution. The plaintiff won't suffer any prejudice as it can relaunch the court action when it feels like.”…,.

I received the above quoted response on 25 January 2012, and, in view of the ambiguity with which counsel for the first applicant had responded to the query raised I directed the first applicant's counsel to approach me in chambers and make further submissions.

Counsel for the first applicant was only able to do so on 30 January 2012.

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

On 28 April 2010, the first respondent, through his legal practitioners, addressed correspondence to the Registrar of this court seeking directions in terms of Rule 4C of the Rules of this Court. The relevant portion of that correspondence reads - “3. In arriving at this decision (the order of 24 September 2009 above) the court determined the ...

“3. In arriving at this decision (the order of 24 September 2009 above) the court determined the issue of the currency of De Beers 1520 and 1523 Exclusive Prospecting Orders, (“EPOs”) over the Marange area (“Marange”) and whether an application for the extension of EPO 1523 had the effect of reserving the ACR claims area from prospecting and pegging.

4. The court held that the EPO's were invalid by reason of their expiration, and that, consequently, the application for extension of EPO 1523 did not have the effect of reserving the ACR claims area.

5. The Court further held that the ACR claims area was open for prospecting and pegging at the time that ACR pegged and registered their claims, and further that the ACR claims were valid and remained valid from the date they were pegged.

6. In arriving at the decisions aforementioned, the ACR group concealed certain fundamental facts which completely disentitle the ACR group of the relief which the court granted. The ACR group fraudulently concealed the facts in order to gain an unfair advantage and for the purpose of procuring a favourable judgment. It is therefore our humble request that the Court, having regard to the fraud committed by the ACR group, give directions, on the proper course of action and procedure to be taken at law in order to procure the rescission of the Judgment procured by fraud.

7. We assert that the following facts were fraudulently concealed by the ACR group:-

7.1 The subsidiary companies; Dashaloo Investments (Private) Limited, Possession Investments (Private) Limited, Olebile Investments (Private) Limited, and Heavy Stuff Investments (Private) Limited (“the ACR subsidiaries”) did not exist at the time of the prospecting, pegging and registration of the mining title that is subject of the above matter.

7.2 Section 20 of the Act provides that only a 'person' can be granted a prospecting licence. A 'person' in this context refers to a juristic person, so constituted by the act of incorporation, or a natural person;

7.3 It is clear that at the time that the Certificates of registration were issued to the ACR subsidiaries, there was no such person to who such certificates could be granted because all mining rights purportedly held by the ACR subsidiaries were acquired between 4 April and 19 June 2006, yet the ACR subsidiaries were incorporated on 29 June 2006 up to 14 July 2006, after the purported issue of the certificates of registration (mining claims);

7.4 ...,.

7.5 ...,.

7.6 Further, and more importantly, at the time of the ACR group pegged their claims, the Marange area was reserved against prospecting and pegging by virtue of the operation of Reservation Notice 1518 issued on 19 February 2004, which notice was posted on the Notice Boards of the Mining Commissioner's offices in Mutare and Harare, and recorded in a 'Reservation Notice Register'.

7.7 It is incompetent to acquire mining title through a prospecting licence or the pegging of claims in an area reserved against prospecting and pegging. The ACR group fraudulently concealed the fact of the existence of the reservation from the court and procured the registration of their claims by fraud…,.”

I directed the Registrar to seek the other parties' response to the request. On 19 May 2010 the applicants, through their legal practitioners, responded in the following terms -

“1. As the honourable judge has handed down his judgment and an appeal has been noted, the honourable judge is functus officio. He can no longer deal with the matter, and, indeed, it is not 'before him' as contemplated in Rule 4(C) of the High Court Rules. His decision in HC6411/07 can only be considered by the Supreme Court on appeal.

2. Nonetheless, our clients have requested that, for record purposes, we respond to the false allegations made on behalf of the Minister of Mines and Mining Development, without in any way conceding that they give rise to a need for directions in terms of Rule 4(C) of the High Court Rules.

3. Our clients deny that they have fraudulently concealed that their subsidiary companies did not exist at the time the ACR claims were duly registered by the Assistant Mining Commissioner Mutare. When our clients decided to register the claims that had been pegged, they purchased shelf companies for this purpose from a local company, Paracor Company Registration Services. This is common practice, and, indeed, our client has purchased over 80 shelf companies from Paracor in this manner. Our clients were assured that the companies had been duly registered and accordingly they utilized the names of the shelf companies in order to obtain registration of the claims. To knowingly use unregistered companies would have been of no benefit to ACR and, indeed, would have been inexplicable in logic.

The Minister was, however, a party to case number HC6411/07 and he filed opposing papers. In none of the opposing papers filed by him were any of these “new” and supposedly fraudulent issues mentioned, despite their existence at that time. It would seem that the reckless and unsubstantiated allegation of fraud is merely an attempt to conceal the incompetence and ineptitude on the part of the Minister in failing to mention these objections (which, surprisingly, now seem to have assumed huge importance).

4. Even if the shelf companies were incorporated a short time after the claims were registered in their names, there was no prejudice to the public interest. In Rajah & Rajah (Pvt) Ltd v Ventersdorp Municipality & Others 1961 (4) SA 402 (A) the Appellate Division considered a case where a trading licence had been issued to a company which had not been registered at the time the licence was issued. The court held that since there had been no intention to deceive on the part of the brothers who had applied for the licence in the name of the company, and in view of the fact that the Municipality had failed to prove that there had been any prejudice or that it would be in the public interest to cancel the existing licence of the company, the licence would be considered valid…,.

5. Furthermore, section 58 of the Mines and Minerals Act provides for the barring of impeachment of title where a mining location has been registered for a period exceeding 2 years. It is not competent in terms of that section for any person to dispute the validity of title to the ACR claims on the ground that the pegging was invalid or illegal or the provisions of the Act were not complied with prior to the issue of the certificates of registration…,.

6. Our clients deny that when the ACR group registered the claims the Marange Area was reserved against prospecting and pegging in terms of RA1518 that was purportedly issued in 2004. Minister does not admit, although he is well aware of it, that the Mining Commissioner, Harare purported to exercise her powers outside her area of jurisdiction. He also fails to disclose that notice of the said RA was not advertised in the Gazette as required by s35(1) of the Act…,. Further, he does not disclose that in 2006 the Mining Commissioner Harare and the Mining Commissioner, Mutare recommended that the reserved area mentioned in RA1518 “be extended” to include the Marange area and it was extended long after the ACR claims had been registered…,.”

Upon careful consideration of the matters raised in both correspondences, and having due regard to and mindful of the need for finality to litigation, I decided that it would not be in the interest of justice to ignore a party's effort to draw the court to a possible fraud. I therefore directed that the first respondent files a court application in terms of Rule 449 of the esteemed Rules of Court dealing with the issues he raised in the correspondence.

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 ...

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:“INTERIM RELIEF GRANTEDPending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;Point A 0187976 ...

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:

“INTERIM RELIEF GRANTED

Pending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

The first and second respondents be and are hereby barred and interdicted from carrying out any mining operations on ANSH NORTH and coming within one hundred metres of the coordinates stated above.

SERVICE

Service of this provisional order to be effected by a clerk in the employ of Messrs Chinyama and Partners Legal Practitioners.”

The terms of the final order sought are in the following terms;

“TERMS OF FINAL ORDER SOUGHT

1. The applicant be and is hereby declared the sole and lawful holder of title over six gold reef claims knows as ANSH NORTH situated on the following map coordinates:

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

2. The first and second respondents be and are hereby barred and interdicted from entering and mining on ANSH NORTH on the map coordinates stated in (1) above.

3. The first and second respondents to pay the cost of suit on a legal practitioner to client scale.”

Before I proceed to deal with this matter, I wish to comment on the undue haste with which the applicant handled this urgent application.

The urgent chamber application was filed with this court on 9 December 2011 and I was allocated the matter on 12 December 2011. This is so on account of the fact that 9 December 2011 was a Friday.

I perused the record on the same day and noted a number of anomalies which are as follows;

(i) The urgent chamber application was not complete as Annexure B referred to in the applicant's founding affidavit was not attached;

(ii) Annexure A referred to in the applicant's founding affidavit was not marked as such; and

(iii) The application was not paginated and properly indexed.

I was of the view that the matter could have been urgent hence I instructed the applicant to correct the anomalies before I could set the matter down.

This was done on 13 December 2011 and I proceeded to set the matter down for hearing on 15 December 2011.

The point is made that urgent applications, by their nature, demand that legal practitioners apply their minds not only to the facts of the matter but in the drafting and preparation of the papers filed. Valuable time of the court is lost perusing papers which are not in order and are referred back to the applicant before a proper determination is made.

There was no plausible explanation for this negligent approach on such mundane issues by the applicant's counsel. Such conduct is inexcusable, and, in a proper case, the court may refuse to hear the applicant on an urgent basis.

HH32-12 : ZELLCO CELLULLAR PL vs NETONE CELLULLAR PL and DR CALLISTUS NDLOVU and REWARD KANGAI and LYNDON NKOMO
Ruled By: GOWORA J

Subsequent to hearing this matter, after having researched on the subject, I requested the parties to address supplementary heads of argument for the benefit of the court.The respondents were kind enough to oblige and I am indebted to Miss Moyo for having taken the time to prepare and file the ...

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

Counsel for the applicant submitted written heads at my instance.

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

This trial is concerned with the identification of the correct house between two of the three houses that are eligible to ascend to the Nyajina Chieftainship of the vaZumba clan in the Uzumba Maramba Pfungwe district of Mashonaland East province of Zimbabwe.THE PLEADINGSOn 26 August 2005, the plaintiff issued summons ...

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.2. Whether the failure to file security for costs timeously renders ...

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:

1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.

2. Whether the failure to file security for costs timeously renders the petition void.

3. Whether the first respondent was properly joined as a party.

THE FACTS

The brief facts in this matter are as follows:

On 29 March 2008, the harmonized Presidential, Parliamentary and Council elections were held in Zimbabwe. Hillary Simbarashe, the petitioner, stood as an independent candidate for the House of Assembly seat in the Mutoko North constituency. The elections were run and conducted by the Zimbabwe Electoral Commission, the first respondent. Mabel Chinomona, the second respondent, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) was one of the candidates who battled it out with the petitioner. On 31 March 2008, she was declared the winner.

The petitioner was unhappy with the pre-election and post-election environment as well as the manner in which the election was conducted. Accordingly, he lodged the present petition with the Registrar on 16 April 2008.

The date of service was not disclosed, but, the second respondent filed her opposing papers on 15 May 2008. She, amongst other things, raised the first two preliminary issues referred for trial.

The first respondent opposed the petition on the basis of misjoinder, hence the third issue.

When I set down the matter for hearing, I directed the parties to furnish me, at the hearing, with information from the Zimbabwe Electoral Commission indicating the date on which the result in the last constituency for election to the House of Assembly was announced by the Constituency Election Officer for that constituency.

This was not done.

I, however, proceeded to hear the matter on the understanding that I would deliver this judgment after that information had been availed. It was only provided by counsel for the first respondent in the morning of 6 June 2008.

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

In this application, the applicants seek an order -

(a) Declaring their arrest and continued detention unlawful;

(b) Requiring the respondents and all those calling through them or acting on their behalf to permit the applicants access to medical treatment at medical centres of their choice;

(c) Directing the respondents or anyone calling through them or acting on their behalf to produce the applicants before a High Court Judge in Chambers within two hours of the order being made, or, alternatively, take the applicants for a remand at the Magistrates Court at/or before 12h00 on 11th November 2008 failing which the respondents and all those calling through them or on their behalf shall forthwith release all the applicants from custody and that thereafter no Magistrates Court should entertain the matter for remand purposes save for trial purposes, applicants having been duly summoned.

They also seek an order for costs on a higher scale.

The application was placed before me through the Chamber Book as an urgent application on 6 November 2008. After perusing the papers, I directed that the applicant serves the application on the respondents as well as on the office of the Attorney-General.

I considered that the matter merited speedy consideration and that the Rules of Court relating to notice be dispensed with in the interests of the rights of the applicants. The matter was to be set down for hearing the next day at 10h00.

The application is premised on an affidavit deposed to by the applicants' counsel, Mr Andrew Mukoni. He makes the following averments:

The applicants are Fidelis Chiramba, Pieta Kaseke, Terry Musona, Fanuel Tembo, Mrs Mutemagau, Mr Manyemwe, Lloyd Tarumbwa and others. The third and fourth respondents are police officers responsible for the arrest and detention of the applicants. The police officers operate under the direction and control of the first and second respondents.

On 3rd November 2008, Mr Makoni was instructed to represent all the applicants. From the information he gathered, the applicants were being dealt with by either CID Homicide Section or CID Law and Order Section at Harare Central Police Station although they had been arrested in places around Banket and Chinhoyi.

Upon visiting CID Law and Order section, the Officer-in-Charge of that section professed ignorance of the matter. When he then visited Homicide section, he learnt that the third respondent was handling the matter. Upon requesting audience with him, the latter was said to be too busy to see the applicants' counsel. He also gathered information concerning the detention of the applicants at various police stations around Harare.

A visit to these stations, however, indicated that the applicants had been released into the custody of the fourth respondent.

He concluded that the police were detaining the applicants illegally for the reason that the 48 hour period permitted at law had long expired. He also believed that the police were holding the applicants in communicado. He feared that the applicants were being subjected to torture, ill-treatment or other inhuman and degrading treatment as access to legal practitioners was being denied. He believed that police had no legal basis for detaining the applicants hence they had failed to take the applicants to court within 48 hours as required of them by law. He believed that the applicants were being subjected to such ill treatment for the purposes of unlawfully extracting from them confessions without legal representation.

He therefore prayed that the applicants be produced at court or be released.

At the hearing, counsel for the respondents indicated that the police did not have the applicants in their custody, and, therefore, were unable to release the applicants. He pointed out that the police deny arresting the applicants as no evidence of such an arrest had been produced by the applicants.

In view of the attitude of the respondents, the matter was postponed to 11 November 2008 to allow the applicants to file further affidavits to address the following questions:

(a) Where are the applicants detained?

(b) What are their detention book numbers, if any?

(c) Under what circumstances were they detained?

(d) On whose authority are they detained?

(e) What are the applicants full and further particulars?

(f) What other persons were arrested and detained under similar circumstances as the present applicants?

(g) What is the registration number or numbers of the vehicles which conveyed the applicants if any?; and

(h) Whether any criminal charges were preferred against any of the detainees.

The respondents, particularly the third and fourth respondents, for their part, were directed to file affidavits answering the allegations raised in the founding as well as the supplementary affidavit.

On 10 November 2008, Mr Makoni filed his supplementary affidavit as directed by the Court. The respondents did not file any affidavit despite being directed to do so by the Court.

HB38-09 : GREENFIELD NYONI vs MRS. L. P. ELMISSING and MR.M. M. ELMISSING
Ruled By: CHEDA J

This is an application for directions in the execution of the provisional order.

The salient facts of the matter are that the applicant entered into a lease agreement with the respondents wherein he leased Shop Number 10 Njube Trading in 2003 and another shop in 2005 known as Jika Jika Bar, Restaurant and Grocery.

At the beginning of 2008, a rent dispute arose which resulted in this application.

I granted the provisional order on 5 January 2009 and the Deputy Sheriff effected service on both respondents. On 6 January 2009, the respondents filed a notice of opposition and served it on the applicants' legal practitioners on 7 January 2009. On the same day, the 7th day of January 2009, the respondents filed a notice of appeal to the Supreme Court appealing the interim relief.

On the advice of their legal practitioner that the appeal to the Supreme Court suspended the provisional order, the respondents disregarded the provisional order.

Upon receipt of this information, the applicants' legal practitioners contacted the respondents legal practitioners on the 12th day of January 2009 in an attempt to resolve the misconception regarding the effect of their “appeal”.

It is conceded by counsel for the respondents that he undertook to counsel for the applicant that the Deputy Sheriff would be advised to proceed with the removal of the respondents on the property thereby giving the applicant vacant possession. Counsel for the applicant had brought to his attention that he was due to leave the country on the 13th day of January 2009. Counsel for the respondents wrote a letter to counsel for the applicant's legal firm, the contents of which are as follows:-

“13 January 2009

Messrs Dube-Banda, Nzarayapenga and Partners
Legal Practitioners
Bulawayo

Dear Sirs

RE: GREENFIELD NYONI VS MRS. L. P EMISSIRY AND ANOTHER HC02/09, SC02/09 AND HC32/09

We are of the view that you used the wrong procedure in obtaining a hearing date for HC02/09. Your application was for directions yet your intention and draft order was to anticipate the matter. Be that as it may, the matter did not take off on the said date.

We are also of the view that if you are aggrieved with the Notice of Appeal filed by ourselves, you will have to file a separate application challenging it. It is our respectful view that the said Notice of Appeal cannot be dealt with within HC02/09.

We filed our Notice of Opposition in HC02/09. If the matter is to continue, we believe you should file you answering affidavit. However, in our view, until the appeal is dispensed with, it is not possible for HC02/09 to be heard.

If you believe our client is in contempt of court, we believe you know the procedure.

Yours faithfully

(signed)
CHEDA AND PARTNERS”

Counsel for the applicant has urged the court to give a directive in view of counsel for the respondents conduct as he has assisted his client to be in contempt of court. The said contempt is based on the following facts which are not in dispute:-

1. The appeal is a nullity.

2. The order he appealed against is not appealable without the leave of the court.

3. Did not approach him for a set down date as per the court order.

4. To date he has not taken steps to prosecute the appeal.

5. He has not paid the security costs.

6. His clients remain in defiance of a court order.

7. He has remained defiant up to date.

In response to this, counsel for the respondents initially became defiant until, at a later stage of the proceedings, when he admitted that he did not act properly as he misled his client and consequently expressed sorrow for what he did.

The fact that the respondents are in contempt of court admits of no doubt. The law is clear in this point; a person who is in contempt remains so until he purges that contempt. Such a person cannot be heard until the contempt is purged.

Counsel for the applicant has urged the court to find counsel for the respondents guilty of misconduct.

In my view, the misconduct complained of was wilful.

In Lewis v Great Western Railway Company BRAMWELL LJ (1877) 3 QBD 195…, defined it as follows:-

“'Willful misconduct' means misconduct to which the will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be willful. It has been said, and that, I think, correctly, that, perhaps, one condition of 'wilful misconduct', must be that the person guilty of it should know that mischief will result from it.”

The golden rule for misconduct for all legal practitioners is clearly set out in Legal Ethics, E.A.L. LEWIS…, where the learned author states:-

“A practitioner must avoid all conduct which, if known, could damage his reputation as an honourable citizen.”

A legal practitioner has a duty to act honestly and fairly at all times. In addition to this, he must always be truthful and candid in all his dealings.

Counsel for the respondents was not honest with his colleague when he misled him into believing that he would implement the agreement; that he would advise the Deputy Sheriff to execute the provisional order. In fact, all the complainants listed by counsel for the applicant (supra) are correct.

All I can say, without more, is that this type of conduct is deplorable and reprehensible.

Legal practitioners are warned to desist from this type of conduct lest their professional careers stand the risk of being brought to a complete halt. Lawyers, as officers of the court, have an unfailing duty to obey court orders and should not be seen to be assisting litigants in the said disobedience.

I find that counsel for the respondents actively and persistently assisted his clients to do so.

Counsel for the applicant has urged the court to award costs against counsel for the respondents de bonis propiis in view of his misconduct.

I find favour in this submission.

Infact, counsel for the respondents, at a very late stage of the proceedings, conceded that he had ill-advised his clients to disobey the court order.

I am of the opinion that this is an appropriate case for costs of this nature in order to show the court's indignation for such wilful misconduct by a legal practitioner.

The following order is made:-

(1) The provisional order issued by this court on the 15th day of January 2009 should be executed within 48 hours of this order; and

(2) Mr. Mangena should pay costs of today's hearing de bonis propriis.

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

On 13 October 2009, when the matter was set down for hearing, Mr. Uriri appeared for the respondents. As the bar was still operating against the respondents, and no application for its upliftment had been made, Mr. Uriri applied for a postponement of the hearing so that he could attend to the issue of the upliftment ...

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The trial of the matter was initially set down before me during the week commencing 18 May 2009. The trial was aborted by consent, and for cogent reasons given. The matter was then postponed to the 19th of September 2009. During the brief hearing conducted to deal with the postponement, the terse and unusually stiff ...

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

In addressing the court, Veronica Nechitima applied for a postponement so that a legal practitioner could be engaged by the respondents so as to put the papers of all the respondents in order, and then have the case argued. Counsel for the applicant opposed the application for a postponement mainly on the basis that the respondents ...

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS
Ruled By: MAKARAU JP

While the issue is not at all before me it, however, appears to me that this matter will be before the courts for a while longer than is necessary as it is not clear, procedurally, what should happen now after the withdrawal of the exception. The pre-trial conference was not concluded. It is not ...

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

The applicants were arraigned for trial before the first respondent, a Regional Magistrate sitting at Harare Magistrate's Court. The first respondent will, in this judgment, be referred to as the “magistrate”. The second respondent is the Attorney General of Zimbabwe. He is the prosecuting authority whose officer is prosecuting in the applicants' trial.

The applicants were, on 27 April 2010, arraigned before the magistrate to answer charges of contravening section 185(1)(b) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. They are alleged to have attempted to escape from Chikurubi Prison.

The case did not take off at the scheduled time. It was adjourned to 11:30am.

When it resumed, at 11:30am, counsel for the first, fourth, fifth, and sixth applicants, who had been in attendance when the case was adjourned to 11:30am, was now not in attendance. The first applicant sought a postponement because their legal practitioner was not in court.

The magistrate turned down the application, and ordered the first applicant to give his Defence Outline.

The fourth, fifth, and sixth applicants also applied for a postponement, on the grounds that their legal practitioner was not in attendance, and that they were staying in a cell without sufficient light and had not been able, for that reason, to prepare their Defence Outlines. They also alleged that prison officers had taken their court documents and only returned some of them.

Their applications for a postponement were, again, not granted. The magistrate ordered the applicants, who were all now not represented, to give their Defence Outlines.

Counsel representing the first, fourth, fifth, and sixth applicants, arrived when the first applicant was giving his Defence Outline.

He applied for the recusal of the magistrate because he had presided in the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, who were participants in the applicants' alleged attempted escape from prison. They pleaded guilty and were convicted by the magistrate who sentenced them to terms of imprisonment.

He submitted, that, the applicants reasonably believe that the magistrate's knowledge of their case, gained from his presiding over the Gwekwerere and Chikwanda cases, will make it impossible for him to impartially assess their evidence in view of the fact that Gwekwerere and Chikwanda will testify for the State in the applicants' trial.

The magistrate dismissed the applicants' application for recusal and ordered that the trial should proceed.

The applicants then filed this urgent application, seeking an order staying the proceedings before the magistrate pending their review by this court.

Generally, this court does not encourage the bringing of unterminated proceedings for review.

There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review.

An application of this nature can only succeed if the application for review has prospects of success.

In the case of Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (HC) DEVITTIE J…, said:

“If an allegation of bias has been proved the proceedings, are a nullity. Therefore, it would be unjust to require that the accused go through the motions, if he is convicted, (sic) of the sentencing process, followed by an appeal or review in respect of proceedings proved to be abortive at the stage of the application for recusal.

Thus, in S v Herbst 1980 (3) SA 1026 (C), where the facts showed that the magistrate's conduct of the proceedings might have created the impression 'in the mind of the right-minded layman that he was unfavourably disposed towards the applicant', the court intervened in unterminated proceedings by setting aside the proceedings and referring the matter for hearing de novo before another magistrate. It was not necessary, the court stated, to show that the magistrate was in fact biased.”

The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the Reviewing Court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.

The success of the application for review depends on whether or not the application for recusal was one which the magistrate should have granted.

Judicial officers generally recuse themselves on their own motion (sua sponte), or on application by a party, on realizing the presence of facts disqualifying them from presiding over a case.

If the judicial officer does not recuse himself in such circumstances, a party who applies for the judicial officer's recusal, and his application is turned down, is most likely to succeed if he applies for the stay of the proceedings pending review.

The present case does not fall into that class of cases where the reason for recusal is easily identified. It falls in the class of cases where the reasons for recusal are not actual bias i.e. bias against a party, personal knowledge about the case, personal interest, or a close relative's interest in the case, etc.

The intended review in this case involves an appearance of bias, which is the applicants' perception of how the magistrate is conducting their case, based on how he handled preliminary applications in their case, his exposure to information about their case, and his refusal to recuse himself.

Appearance of bias from the dismissal of applicants' applications

Counsel for the applicants submitted that the magistrate's dismissal of the applicant's applications for postponement when their counsel failed to appear in time at 11:30am, and his requiring them to immediately give their Defence Outlines in spite of their having been represented, and that they had not had time to prepare Defence Outlines as prison officers had confiscated their State papers and returned them with some statements missing, reflects an extraordinary eagerness of his and the second respondent to fast track the trial. He submitted that this raises a reasonable apprehension of bias in the applicants.

Counsel for the second respondent submitted, that, the prosecutor who represented the second respondent at the trial before the magistrate had opposed the applicants' applications for postponement. He therefore submitted, that, the magistrate exercised his judicial function in determining an interlocutory issue placed before him by the parties.

It is true that the applicants may perceive the handling of their applications as an indication of the magistrate's bias against them. That, however, is not enough to indicate prospects of success on review.

An application for recusal must be based on a reasonable litigant's apprehension of bias and the apprehension must itself be reasonable.

In the case of Silwana & Anor v Magistrate, District of Piketberg & Anor 2003 (5) SA 597 (C)…, FOXCROFT J said:

“In decisions in recent years, Judges have been reminded that one should not be unduly sensitive about applications for recusal. As HOWIE JA (as he then was) said in S v Roberts 1999 (4) SA 915 (SCA) (1999 (2) SACR 243) para [26] at 923B-C:

'It is settled law that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding (or continuing to preside) over judicial proceedings. The disqualification is so complete that continuing to preside after recusal should have occurred renders the further 'proceeding' a nullity.'”

Council of Review, South African Defence Force & Ors v Mönnig & Ors 1992 (3) SA 482 (A) is referred to, and also the remarks in S v Malindi & Ors 1990 (1) SA 962 (A)…, where CORBETT CJ said that:

'The common law basis of the duty of a judicial officer, in certain circumstances, to recuse himself, was fully examined in the cases of S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T).

Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially.

The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that, in reality, the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important.'”

In the case of South African Commercial Catering & Allied Workers Union & Ors v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC)…, the South African Constitutional Court, per CAMEROON AJ, dealing with the concept of apprehension of bias, said:

“The court in Sarfu further alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but, the apprehension itself must, in the circumstances, be reasonable.

This two-fold aspect finds reflection also in S v Roberts 23, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds.

It is no doubt possible to compact the 'double' aspect of reasonableness in as much as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But, the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance.

As CORY J stated in a related context on behalf of the Supreme Court of Canada:

'Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.'

The 'double' unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a judge will be biased, even a strongly and honestly felt anxiety, is not enough.

The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court super-imposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value, and, thereby, decides whether it is such that it should be countenanced in law.”

The magistrate's handling of the applications for postponement must be tested against the reasonableness of the applicants and the reasonableness of their apprehension of bias.

The magistrate was aware that the applicants' case was coming before him for trial. He knew their legal practitioner had been in court in the early part of that morning. The rescheduled time for the trial of the applicants' case had arrived. The legal practitioner was no longer in attendance - without having been excused. The State wanted to proceed with the trial.

The fact that the trial was scheduled to take off means the applicants' legal practitioner must have prepared their Defence Outlines. He would have done so with instructions from the applicants. There was therefore no impropriety in the magistrate's order that the applicants should give their Defence Outlines. They were expected to be ready with their Defence Outlines as they knew that the trial date was approaching. They could simply give their Defence Outlines as per the instructions they had given to their legal practitioner.

Though the second and third applicants were not represented, they too knew of the trial date, and should have been prepared to give their Defence Outlines on the trial date.

The first, fourth, fifth, and sixth applicants' allegations, about the disabling prison conditions, could not justify a postponement as their legal practitioner was free to prepare the Defence Outlines, and could easily have asked the State for the alleged confiscated papers.

The magistrate was entitled to make a value judgment on the applications for postponement as they were marred by appearances of delaying tactics. The applicants' apprehension of bias on this aspect is not reasonable and cannot therefore be countenanced in law.

A judicial officer is expected to manage his court in the interest of justice and the efficient administration of justice. The circumstances in which the applications for postponement were dismissed must therefore be carefully considered.

A judicial officer can, in a proper case, insist that a scheduled trial must take off. That would not, in the absence of other apparent motives, be an indication of a reasonable appearance of bias to a reasonable litigant.

In the case of Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) HARMS JA, commenting on a situation similar to the one arising in this application, said:

“Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator. This common law right is now constitutionally entrenched. Present a reasonable apprehension of bias, the judicial officer is duty bound to recuse him or herself. The law in this regard is clear, having been the subject of recent judgments of both this court and the Constitutional Court, and does not require any restatement. It is nevertheless convenient, for present purposes, to quote the following extracts from a Constitutional Court judgment for purposes of emphasis and because they are particularly germane to this case:

'The question is whether a reasonable, objective, and informed person would, on the correct facts, reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel.

At the same time, it must never be forgotten, that, an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

That is one side of the coin. The other is this:

A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge's position, in a criminal trial, is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure, but to see that justice is done.

The same applies to civil proceedings: a judge is not simply a 'silent umpire'. A judge is not a mere umpire to answer the question 'how's that?''

LORD DENNING once said:

'Fairness of court proceedings requires of the trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence.'

A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources.

One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to re-appear at a later stage), or, of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented.

Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.

A balancing act by the judicial officer is required because there is a thin dividing line between managing a trial and getting involved in the fray. Should the line, on occasion, be overstepped, it does not mean that a recusal has to follow or the proceedings have to be set aside. If it is, the evidence can usually be re-assessed on appeal, taking into account the degree of the trial court's aberration.”

I entirely agree with HARMS JA's comments on the judicial officers' responsibilities in the management of cases that come before them for trial or in preparation for trial. I would only add that this equally applies to magistrates, who, in fact, preside over more cases than judges.

The need for firm control of proceedings is called for as a supine approach will result in avoidable backlogs.

The need for efficient court management by judicial officers must however give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and, turning down those made for dilatory purposes.

I am, in this case, satisfied that the magistrate was merely exercising firm control of the proceedings in circumstances where he was justified to suspect delaying tactics on the part of the applicants and their legal practitioner.

The applicants' suspicion of bias is not justified as they had come to court for trial, and must have, by then, prepared their Defence Outlines through their legal practitioner who could only do so on their instructions.

I therefore cannot stay the proceedings on the alleged appearance of bias due to the magistrate's refusal to grant the applicants a postponement because their legal practitioner had not come to court at the agreed time.

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

On 17 May 2010 the matter was postponed to 20 May at the instance of the applicant's legal practitioners who had been served with the opposing papers just before the time set for the hearing. They indicated that they had only managed to have a cursory perusal of the papers and were of the ...

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

Being in agreement with counsel for the applicant's argument that I put aside procedural technicalities and proceed to condone irregularities referred to in the points in limine, I found it to be in the interests of justice to proceed by way of Rule 4C as prayed for by the applicant. ...

HH153-10 : ACHIBOLD NDIDZANO vs PAULINE GONDORA and HOPEMORE ARUFANDIKA and HARDWORK MUTYENYOKA and SIX OTHERS
Ruled By: HUNGWE J

There has been a consolidation of all three cases. The only issue not captured clearly is one of rescission of judgment HC8050/03. It seems to me that since all the parties are now before the court, and in the interest of finality to litigation, consolidation having been ordered by KARWI J on 22 November ...

HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT
Ruled By: CHIWESHE JP

Counsel for the applicant made an application for the postponement of the hearing to enable him to take instructions on this point in limine. No tangible reasons were given as to why those instructions had not been taken prior to the hearing, and, moreso, as OMERJEE J's order was made as far back as May 2008. ...

SC33-15 : APEX HOLDINGS (PRIVATE) LIMITED vs VENETIAN BLINDS SPECIALISTS LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

On 24 June 2010, the High Court dismissed an application by the respondent for the recognition by that court of a judgment obtained in Malawi against the appellant. The respondent appealed to this court. On 22 February 2012, this Honourable Court upheld the appeal and remitted the matter to the High Court to hear evidence and make a determination on the exchange rate applicable to the Malawi Kwacha as against the United States Dollar, and, further, whether any interest was due and the rate thereof.

After hearing evidence from the respondent on those specific issues, the High Court issued out an order in which it recognized the judgment from Malawi and ordered the appellant to pay the sum of USD840,958=11 together with interest thereon at the prescribed rate with effect from the date of its judgment to date of payment.

Both parties are aggrieved by the judgment and have appealed to this Court.

Counsel for the appellant moved an oral application for a postponement of the appeal. He intimated that he had been instructed that the appellant wished to make a direct application to the Constitutional Court for appropriate relief. He was unable to provide details of the intended application, when it was to be filed or the substance of the relief being sought.

Counsel for the respondent, in turn, vehemently opposed the application.

He argued that the respondent had not been given any notice of the application for a postponement nor had it been warned of the possibility of a Constitutional application being mooted by the appellant.

An application for the postponement of a matter which has been set down for hearing is in the nature of an indulgence sought, the grant of which is in the discretion of the judge, or court, before which it is made. The applicant must therefore show that there is good cause for the postponement or that there is a likelihood of prejudice if the court refuses the indulgence being sought. In McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA), SCHULTZ JA remarked:

“A party opposing an application to postpone has a procedural right that the appeal should proceed on the appointed day. It is also in the public interest that there should be an end to litigation. Accordingly, in order for an application for a postponement to succeed he must show a 'good and strong reason' for the grant of such relief: Centirugo AG v Firestone SA (Pty) Ltd 1969 (3) SA 318 (T) at 320C-321B. The more detailed principles governing the grant and refusal of postponements have recently been summarised by the Constitutional Court in National Police Service Union v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1112C-F as follows:

'The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the court. Such postponement will not be granted unless this court is satisfied that it is in the interests of justice to do so. In this respect, the applicant must show that there is good cause for the postponement. In order to satisfy the court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that gave rise to the application. Whether a postponement will be granted is therefore in the discretion of the court and cannot be secured by mere agreement between the parties. In exercising that discretion, this court will take into account a number of factors, including (but not limited to); whether the application has been timeously made; whether the explanation given by the applicant for postponement is full and satisfactory; whether there is prejudice to any of the parties; and whether the application is opposed.'

The learned judge continued, at 495

“The application for postponement falls short on all counts. There is not even a serious attempt to provide a 'full and satisfactory explanation' for the owner's unpreparedness or the lateness of the application. Nor is such explanation as there is on oath, notwithstanding counsel's advice to the new attorney.

The interests of the other litigants and the convenience of the court are also important. The record and heads have been read by five judges, variously, months or weeks before the appeal date. The fact that this case was placed on the roll meant that another case had to wait for the following term and if a postponement is granted this consequence will extend into succeeding terms.”

It seems to me that the application moved before us for the postponement was, to say the least, half-hearted. There was no attempt made to establish 'good cause' which would have persuaded the court to grant the indulgence being sought.

There was no explanation, in casu, why the postponement was being sought other than a reference to a desire to mount a Constitutional application. The submission from counsel suggested to us that the Constitutional issues, if any, were yet to be formulated. Counsel did not address the issue of the prejudice, if any, the appellant was likely to suffer if the application for postponement was not granted. In any event, it was not suggested that the hearing of the appeal would be a bar to the appellant's right to mount a direct Constitutional application.

Such indulgence, as this court would afford the applicant, would involve the court exercising discretion in favour of the applicant. Any such discretion must be exercised judicially and a court should be slow to refuse an application for postponement where the reasons for the applicant's inability to proceed have been fully explained. The absence of an explanation by the appellant to justify the application for a postponement was in itself indicative to the court of the fact that there was no 'good cause' for the grant of the indulgence sought. See Persadh v General Motors South Africa (Pty) Ltd 2006 (1) SA 455…,.

It was for the above reasons that the court refused the application and ordered that the appeal be heard on the merits.

HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

The parties are directed to have the matter reset down for trial.

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

On 20 August 2010, I dismissed this application with costs. The applicant has now placed before me a written request for the full reasons behind my dismissal of its application. The applicant says it needs the reasons because it intends to file an appeal in the Supreme Court urgently.

I give here below the reasons for my ruling.

On 12 August 2010, the applicant filed an urgent application in this court seeking the following interim relief:-

“Pending the finalization of the applicant is granted the following relief:

1. The 'Notice of Extraordinary General Meeting, issued by the first respondent, for a meeting to be held on 21 August 2010, is hereby declared null and void.

2. The respondents are hereby interdicted from purporting to act as Directors of the applicant and interfering with and/disrupting the applicant's management.

3. The respondents shall pay costs of this application.

4. That leave is granted to the applicant's legal practitioners to serve this order upon the respondents.”

The application was heard and dismissed for lack of urgency by HLATSHWAYO J on 19 August 2010. The result slip in the record confirms as follows:-

“Matter dismissed as not urgent.”

On 19 August 2010, the day HLATSHWAYO J made his ruling, the applicant noted an appeal in the Supreme Court. The Notice of Appeal states that the appeal is against the whole of the judgment of HLATSHWAYO J and grounds of appeal are then given as follows:-

“1. The learned Judge erred in finding that the applicant's application, HC5500/10, was not urgent on the basis that there was an inordinate delay between the time the issue of applicant's contested Directorship came to the attention of the applicant's deponent in HC5500/10 and the time of filing of HC5500/10.

In so doing, the learned Judge failed to appreciate the fact that the issue that has instigated urgency in HC5500/10 is the serving of notices of an Extraordinary General Meeting of the applicant, proposed by the respondents purportedly in their capacity as applicant's Directors.

The fact of speculative knowledge about the improper claim to Directorship by the respondents could not ground urgency in that that would essentially amount to creating urgency where none exists.

Prior to the issuance of the notice to attend an Extraordinary General Meeting therefore, the dispute as to Directorship could be resolved by way of an ordinary court application.

Upon the service of the notice to attend the Extraordinary General Meeting however, scheduled for 21 August 2010, the need arose to interdict the respondents from acting in a manner inconsistent with the position that their status as directors is disputed. Such an interdiction could not be dealt with by way of an ordinary court application. It could only be resolved by way of an urgent chamber application; as such, the learned Judge erred in finding that the matter was not urgent.

2. The learned Judge also erred in finding that the averment contained in the Supporting Affidavit of Ann Rushwaya, was evidence of the fact that as far back as the 22 August of June the applicant was aware of its purported change of Directorship. This is so because a speculative suspicion that party has done something unlawful does not ground urgency but the very act of actuating that illegal action, eg. by calling for an Extraordinary General Meeting, does ground such urgency; thus, despite the existence of that speculative suspicion in June 2010, the basis of urgency has only arisen upon the serving of the notices to attend an Extraordinary General Meeting.”

The judgment appealed against does not form part of the papers before me.

On 20 August 2010, the applicant filed this application seeking the following interim relief:-

“Pending the finalization of the applicant's appeal in the Supreme Court (SC197/10), the applicant is granted the following relief:

1. The respondents be and are hereby interdicted from holding the purported Extraordinary General Meeting of the applicant, scheduled for the 21st of August 2010.

2. The respondents shall pay the costs of this application.”

Clearly, the above is the same relief that was prayed for on 12 August 2010.

I heard the application on the same day it was filed, and, indeed, after hearing argument from both counsel I dismissed the application with costs.

The certificate of urgency in support of the application indicated that since the dismissal of the earlier application the issue of an interdict remained alive because the Extraordinary General Meeting proposed by the respondents was likely to be held on 21 August 2010. Furthermore, the certificate went on, the dismissed matter (HC5500/10) remained res litigiosa on account of the appeal noted in the Supreme Court. Accordingly, it was stated, if an interdict was not granted, the holding of the meeting on 21 August 2010, by the respondents, would stand to ignore the fact that there was pending litigation on the issue. The applicant therefore believed there was need for the matter to be dealt with through an urgent application.

I must hasten to mention that a few hours before the hearing of the application I had asked for heads of argument on whether or not leave to appeal was required in respect of the appeal filed in the Supreme Court on 19 August 2010.

I am indebted to counsel for the applicant who quickly filed heads of argument which I found useful.

HH204-10 : BENSON SAMUDZIMU vs DAIRIBORD HOLDINGS LTD
Ruled By: CHIWESHE JP

In any event, it would be improper to join the two applications because the time within which the second respondent under case number HC5560/10 (the arbitrator) must file a notice of opposition has not expired. The second respondent's defence in that application is therefore not yet known.

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

After I ruled against that application for default the plaintiff applied for a postponement of the matter. Unfortunately there was no merit in the application. Clearly, the plaintiff had not acted diligently in prosecuting his case. So many years had lapsed without the plaintiff effectively attending to service on the executor of the estate late ...

HB02-10 : MAHLULELI NIXON DUBE vs N & S PROPERTIES and NICHOLAS MASUKU and JONAH DUMAH and POLINA DUMAH and CITY OF BULAWAYO
Ruled By: KAMOCHA J

When the matter came for a hearing the first and second respondents sought a postponement to enable them to file their heads of argument. Their application was dismissed as it was devoid of any merit whatsoever. They had been served with the applicant's heads of argument a year and three months ago, on 13 October 2008, ...

View Appeal
HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS
Ruled By: UCHENA J

The defendants are permanently disabled, with varying degrees of disabilities. Some have difficulties in speaking because of their disabilities. Most of them are wheelchair bound. They have difficulties in moving about. Their wheelchairs enable them to move about, but that mobility needs the assistance of rumps to enable them to access buildings. During the trial ...

HB152-11 : DERICK MASEKO vs MPIKELELO NGANEZWE KHUMALO and THE DEPUTY SHERIFF
Ruled By: KAMOCHA J

The legal representative of the first respondent informed the applicant's legal practitioner that he was on leave and would therefore not be able to come to court to argue this matter. He suggested that the applicant's legal practitioner should seek for a postponement of the matter to some future date when he will be available.This, of ...

HB142-10 : PECHI INVESTMENTS (PVT) LTD vs MAURICE MUTATSI NYAMUDA T/A EBUNANDINI RESTAURANT
Ruled By: CHEDA J

This is an application for recusal. The main case deals with a request/prayer for eviction of the respondent from a property known as Stand 464 Bulawayo Township, Bulawayo which is situated at 123 George Silundika Street, Bulawayo and costs on an attorney and client scale. Briefly, the background of this matter is that on the 17th September ...

This is an application for recusal.

The main case deals with a request/prayer for eviction of the respondent from a property known as Stand 464 Bulawayo Township, Bulawayo which is situated at 123 George Silundika Street, Bulawayo and costs on an attorney and client scale.

Briefly, the background of this matter is that on the 17^th September 2004, the applicant entered into a lease agreement with the respondent in respect of a lease of the above property for 11 months, from 1 September 2004 to 31 July 2005, which was renewable until 31 July 2006, and, thereafter, the respondent was to continue to lease the property on a monthly basis if he so wished. In January 2008, resolved to terminate the lease agreement and gave the respondent three (3) months' notice which effectively was to terminate on the 30^th of April 2008. However, further negotiations were made culminating in the parties mutually agreeing that the respondent vacates the property on the 30 September 2008. A memorandum to that effect was proposed and signed by both parties. However, the respondent did not vacate the said property, a situation which resulted in these proceedings. The reasons for such failure are an integral part of the main proceedings before this court.

The above referenced cases were supposed to be heard together as they involve the same issues and same parties as per this court's order of the 5th March 2009.

The applicant applied for a notice of set down, which was granted, and the matter was set down for hearing on the 12^th October 2010. The notice of set down was served on the respondent the same day. Upon receipt of the said notice of set down, the respondent filed what he termed “Request for Postponement”, which reads as follows:

“REQUEST FOR POSTPONEMENT

I refer to the above matter and to your notice of set down dated 12/10/10 which was received on the same day the 12/10/10 in the afternoon. Please note that the notice period given (3 days) is inadequate and inconsistent with the stipulated two weeks' notice as per the rules of this Honourable Court.

May I also advise that I need to engage an Advocate for this matter which is so complicated due to the number of points of law involved. As a result, I propose that this matter be removed from the roll for the good of both parties.

By copy of this letter, the Honourable Judge who will preside over this case is respectfully advised not to bother to read the case, since we are not ready for the matter to be heard.

DATED AT BULAWAYO THIS 14^TH DAY OF OCTOBER 2010.

(SIGNED)

MCM NYAMUDA

t/a Ebunandini Restaurant

123 G. Silundika Street

BULAWAYO

TO: THE REGISTRAR

HIGH COURT OF ZIMBABWE

BULAWAYO

AND TO: JOEL PINCUS, KONSON & WOLHUTER

215 YORK HOUSE

8^TH AVENUE/H. CHITEPO STREET

BULAWAYO (ESE/PM/Is)”

The respondent did not attend the hearing on the 18^th October 2010.

Counsel for the applicant applied for a default judgment on the basis that the respondent should have appeared in court to seek postponement. While she was, indeed, entitled to apply for default judgment I did not grant it for the following reasons:

(1) The respondent is a layman and a self-actor;

(2) That the matter is very important to the parties; and

(3) That on many occasions such default judgments often result in applications for rescission, which applications can be avoided as they waste both the litigants and the court's time.

Needless to say that counsel for the applicant was not happy with my decision.

The postponement was granted and couched in the following terms:

“IT IS ORDERED THAT:

(1) The matter be and is hereby postponed to the 25^th of October at 1415 hours.

(2) Applicant must serve respondent with a notice of set down.

(3) In the event that respondent is in default for whatever reasons the matter will proceed in his absence.

(4) No other postponement will be allowed by this court, and that

(5) Costs will be costs in the cause.”

On the day of the hearing, both parties were present.

The respondent was, however, not properly dressed, as he was putting on a short-sleeved shirt with neither tie nor jacket. I must remark here that the respondent is a self-actor who has professionally drafted all his documents before the court and is fully conversant with the Rules of this Court as evidenced by the presentation of his case. In addition thereto, he has a very good command of English and seems to have mastered the relevant legal terms used in this court. In fact, he is amongst very few self-actors who can articulate their cases so well. Above all, he struck me as a very intelligent man indeed. One cannot certainly take away that skill from him. In fact, he is a rare self-actor.

For that reason, I did not believe him when he stated that his failure to dress properly was due to his ignorance as he struck the court as a very educated man who was very familiar with the basic court procedure and court etiquette.

It is pertinent to note that when he appeared in court on the 25^th October 2010, he did not bring his file with him. One of the terms of the order of the 18^th October 2010 was that the matter was to proceed on the 25^th October 2010 without fail. However, the respondent still appeared in court without his file or documents in readiness for hearing.

On the 25^th October 2010, during the hearing, the respondent interjected when the applicant was making submissions. He applied for a postponement on two grounds that:

(1) He wanted to seek legal representation, and

(2) He had not had time to go through his papers as the notice of set down was handed to him on the evening of the 24^th October 2010.

Counsel for the applicant, in response, contradicted him and sated that the respondent was not being truthful to the court because service was effected by the instructing legal practitioner, Mr Pineas Madzivire, who happened to have been present in court.

In order to clarify this issue, I asked the legal practitioner, Mr Pineas Madzivire to take the witness stand and give evidence. His evidence was that on the 18^th of October 2010, he proceeded to the respondent's place of business and found one Sebastian Nyamuda (the Manager for the respondent) who refused to accept service for and on behalf of the respondent. His reason for refusal was that he was not authorised to receive documents for and on behalf of a third party. Mr Pineas Madzivire took the documents back to his office whereupon he was advised by the senior partner to go back and re-serve on whoever was present. He went back and again found Sebastian Nyamuda, who, for the second time, refused to accept service. He then left the notice of set down on Sebastian Nyamuda's desk. It was also his evidence that while he was at the respondent's offices he saw three other people sitting there and one of them he now recognized as the respondent.

The respondent cross examined him but he stuck to his evidence.

I found him to have been a truthful witness who had no reason to lie to the court.

After cross-examination, the respondent also took the witness's stand. He stated that his failure to attend court on the 18th of October 2010 was because he was under the impression that his “Request for Postponement” was enough to excuse him from attending court. With regards to service of the notice of set down for the 25th of October 2010, he stated that he was not present in the premises as he was in Harare and only arrived on the evening of the 24th of October 2010 when the hearing was on the 25th October 2010 at 1000hours. On Mr Pineas Madzivire's averments that he was, in fact, present he denied this and went further to state that Mr Pineas Madzivire must have seen his brother.

When questioned as to why he did not bring his file or documents with him when he knew that the matter was set down for hearing on the 25th October 2010, he stated that he was of the view that the matter was going to be postponed as he wanted to seek legal representation.

Although he told the court that Mr Pineas Madzivire must have seen his brother, he made no efforts to lead evidence from his brother to counter that assertion. His brother's evidence was, in my opinion, necessary as it could have helped the court to see whether or not they looked alike.

Counsel for the applicant argued that the matter should proceed as the respondent was aware of all the issues involved since he drafted all his papers and even filed his heads of arguments as far back as May 2009. She further argued that the time required for legal representation would have been adequate from the time he was served with a notice of hearing on the 12 October 2010 to date.

After hearing the evidence led in court I made the following findings:

(1) That respondent had been deliberately avoiding the hearing, hence, his non-attendance on the 18^th of October 2010 thereby seeking a postponement by filing his notice of intention to do so but failing to come to court to apply for the said postponement.

(2) On this day, he was vague when asked as for how long the postponement to seek legal advice should be. He had been equally vague with regards to the time he required to look for legal representation in his “Request for Postponement” filed of record.

(3) He was casual in his dressing on the 25^th of October 2010 when he was aware that he was coming to court.

(4) He was present when Mr Pineas Madzivire effected service on Sebastian Nyamuda on the 18^th of October 2010.

(5) That he was not genuine when he stated that he wanted the matter postponed in order to seek legal advice as he had always been aware of the pending hearing but chose not to take any steps whatsoever in securing the said legal representation in the time. He failed to do so between the 18^th and 25^th October 2010 when he had the opportunity to do so.

Mr Pineas Madzivire is a legal practitioner and an officer of this court. He has no personal interest in this matter other than that of his client. He has no reason to lie that the respondent was present when he was not because it was not a requirement to effect personal service anyway. Therefore, the mention of the respondent's presence does not enhance the effect of service at all, but was, in my view, mentioned to buttress the truthfulness of his averments and nothing else.

I find that the respondent was an untruthful witness as it is clear to me that he has been trying to avoid this matter being heard. He lied that he was not present on the 18^th of October 2010 yet Mr Pineas Madzivire saw him. It is Mr Pineas Madzivire's evidence that although he did not know him then and was seeing him for the first time, he is the same person whom he saw when he effected service on the 18^th of October 2010. I found the respondent not to have been a credible witness as far as this aspect of the case is concerned and I, therefore, reject his explanation in relation to his application for postponement.

As he had come to court without his file and/or documents, on the 25^th October 2010, I was of the view that he should be given a second chance to read and bring his documents the following day, that is 26^th October 2010and possibly seek legal representation. I, therefore, again, exercised my discretion and postponed the matter to the 26^th October 2010 to which he agreed to.

On the 26^th of October 2010, the parties appeared and this time he was properly dressed, but, again, he had no file or documents and sought a further postponement on the following grounds:

(1) That since I had made a finding that he was not truthful in his evidence with regards to Mr Pineas Madzivire's attendance at his premises on the 18^th October 2010 he was of the opinion that I was going to be biased against him in the event that I heard this case on the merits, and

(2) That he still wanted legal representation in the person of an Advocate.

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

At the commencement of the hearing of the matter, counsel for the first and the second respondents made an application for a postponement to enable him to file opposing papers which the respondents had not filed as they were given short notice of the hearing. The application was opposed by the applicant on the basis ...

HH57-11 : ELGATE INVESTMENTS (PVT) LIMITED and OTHERS vs THE MASTER OF HIGH COURT and WESLEY MILITALA and PARROGATE ZIMBABWE (PVT) LTD and OTHERS
Ruled By: MTSHIYA J

The application first came before me on 3 February 2011. At the first hearing, I urged the parties to seek a practical and amicable settlement. To allow for discussions, I postponed the matter to 7 February 2011. On 7 February 2011, the parties reported that no progress had been made towards a settlement and counsel ...

HH52-13 : SOUTHMARK TRADING (PRIVATE) LIMITED and OTHERS vs KAROI PROPERTIES (PRIVATE) LIMITED and GEDION HWEMENDE and NATIONAL INDIGENISATION AND ECONOMIC EMPOWERMENT BOARD and OTHERS
Ruled By: ZHOU J

During the course of making his submissions counsel for the first and fourth respondents requested that the matter be postponed to 24 September 2012 to give the first and fourth respondents an opportunity to file opposing affidavits. I allowed the postponement, as the first and fourth respondents had made an undertaking that pending finalisation of ...

HH59-13 : MARGARET SUMBURERU vs PRISCA CHINAMORA and THE MASTER OF THE HIGH COURT and WILBERT NYAMUPFUKUDZA N.O.
Ruled By: GUVAVA J

The issues as raised in paragraphs (c) and (d) are seeking legal advice and it is not the function of the court to proffer legal advice to parties. This request for legal advice seems to emanate from the various issues and disputes which have been presented in the papers by the applicant. Of particular concern ...

HH73-13 : SIBONGILE KAZIBONI vs CHAMPION CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MATHONSI J

At the conclusion of the trial in this matter, the parties requested to file written submissions. I directed that the plaintiff's closing submissions be filed by 7 March 2013 while those of the defendant should be filed after that. I have only had sight of the defendant's closing submissions but those of the plaintiff ...

View Appeal
HH100-13 : H. J. VORSTER (PVT) LTD vs SAVE VALLEY CONSERVANCY
Ruled By: MATHONSI J

I do not agree that whatever order HLATSWAYO J made directing that the 2 matters be set down urgently to be heard at the same time had the effect of suspending the operation of the Rules of Court as argued by counsel for the applicant. In fact, that argument is simply disingenuous.

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

The facts that gave rise to this dispute are as follows:

In January 2010, the first applicant, Givemore Sambadzi, purchased certain immovable property known as Stand 2048 Chadcombe Township of Stand 1257 Chadcombe Township from one Charity Nyarai Mupaya and a Deed of Transfer was made in his favour.

In November 2010, the first applicant then entered into an agreement of sale with the second applicant, Salatiel Nhubu, regarding this property.

However, he could not effect transfer to the second applicant as by then XN caveats had been placed on the property by one McDonald Freeman Tsambwa, who had also instituted proceedings with this court on the basis that the said property belonged to his two minor children Chido Jacquline Tsambwa, born 24 July 1998, and Chikomborero Ronald Ralph Tsambwa, born 23 August 2002, and had in fact been fraudulently sold by his wife Charity Nyarai Mupaya.

McDonald Tsambwa filed his principal application in Case No. HC461/11, in January 2011, to which the first applicant in this case filed his notice of opposition which was answered by McDonald Tsambwa.

Heads of argument were filed by the first applicant in that matter (as respondent) but it appears, thereafter, despite correspondence, McDonald Tsambwa did nothing to pursue his matter to finality.

It was on this basis that a Chamber Application was brought dismissing his case for want of prosecution.

This dismissal was the basis upon which the applicants in this case brought an unopposed application, through their lawyer, to get the respondent in this present matter, the Registrar of Deeds, to effect transfer to the second applicant.

In response to various correspondence written by the applicants lawyers, Messrs P Chiutsi, seeking transfer, the respondent wrote, on 7 March 2012, stating that certain discrepancies had been noted in the sale of the property in question to the first applicant which warranted cancellation of the Deed of Transfer 1559/2010.

These were to the effect that transfer from minors, Chido Jacquline Tsambwa and Chikomborero Ronald Ralph Tsambwa, required the Master's consent and that this had not been obtained.

Moreover, Charity Mupaya, who had appointed Wesley Thabang Khanda as conveyancer, did not appear anywhere in the previous Deed DT.8339/2007.

He also noted that the extending Deed made reference to one Lloyd Mudiwa Kativu instead of the two children.

Furthermore, the Zimra certificate was for transfer Kativu to Tsambwa which meant no capital gains certificate was issued for the transfer.

A discrepancy in the rates certificate was also observed.

The Deeds office had indicated that the matter was under investigation as the transaction appeared not to have been properly done.

The applicants, through their lawyer, sought an order, through an unopposed application, for transfer of the property to the second applicant in line with the agreement of sale entered into by the parties.

The first applicant challenged the respondent's refusal on the basis that it is the respondent and the seller who can explain the alleged discrepancies as he was merely an innocent purchaser.

They filed an unopposed application which was set down for hearing on the 4th of April 2012 whereby the Court directed that a copy of the chamber application for want of prosecution be attached. The matter was then postponed to 02 May where I raised the following queries:

(1) The property was originally in the names of the two minor children, Chido and Chikomborero Tsambwa born in 1998 and 2002 respectively.

(2) The property was transferred from them in contravention of the law in that there was no involvement of the Master or authorisation of the Court as required by the law.

If so, then, the purported transfer from the two minor children was fraudulent, and, to that extent, a nullity and of no force and effect at law. What this means is that whoever purchased the property might have acquired defective title incapable of transmission to any other person.

(3) The purported previous transfer is fraught with other irregularities for want of compliance with statutory requirements regarding payment of capital gains tax and rates. This again points to fraud which vitiates the validity of the transfer.

(4) The caveats in question were placed pending police investigations. There is no proof that the investigations have been completed.

The Master of the High Court was accordingly directed:

(1) To appoint a curator bonis for the two minor children, Chido and Chikomborerero Tsambwa, and to render a report to the Court.

(2) To report this matter to the Anti-Corruption Commission which shall communicate its findings to the Master of the High Court.

(3) In the meantime, the caveats in question to remain in force.

HB73-11 : DIANA KUTSANZIRA vs TITUS TSVANGIRAI
Ruled By: KAMOCHA J

Directives 1. The dispute relating to the marital relationship of the parties i.e. whether or not they should part ways should be adjudicated upon by the local court in terms of section 16(1)(d) of the Customary Law and Local Courts Act [Chapter 7:05]. 2. The claim of maintenance of the two minor children should be dealt with ...

HB119-14 : NKULULEKO MASUKU vs EMANUEL MUGADZA N.O. (HEARING OFFICER) and MBCA BANK LIMITED
Ruled By: MAKONESE J

This is an Application for Directions brought before me in terms of Order 23 of the High Court, Civil Rules, 1971. On the 17th June 2014, under case number HC1370/14, the applicant filed a Chamber Application in this court seeking an order to restrain disciplinary proceedings scheduled for the 19th June 2014. The applicant avers that there ...

This is an Application for Directions brought before me in terms of Order 23 of the High Court, Civil Rules, 1971.

On the 17^th June 2014, under case number HC1370/14, the applicant filed a Chamber Application in this court seeking an order to restrain disciplinary proceedings scheduled for the 19^th June 2014. The applicant avers that there was a typing error in that the hearing was not set down for the 19^th May 2014 but for the 19^th June 2014. The application was placed before MOYO J who commented as follows:-

“1. The application does not comply with Rule 242(2)(a) as there are no averments as to urgency.

2. Applicant also files an application on 17^th June 2014 to restrain proceedings that are scheduled for 19^th May 2014. The application has thus been overtaken by events.

3. This is purely a labour matter and the Applicant should approach the Labour Court for any complaint or relief against the Respondents. Refer to section 89 of the Labour Act. No order.”

The applicant proceeded to file an Urgent Application with the Labour Court seeking the same relief, that is to say, a stay of the disciplinary hearing.

On the 27^th June 2014, the matter was placed before the Labour Court and the Honourable KABASA, judge of the Labour Court issued the following order;

“1. The application is for an interdict, seeking to stop the Respondent from proceeding with a disciplinary hearing and

2. The court has no jurisdiction to grant interdicts.

3. The application is hereby dismissed.”

The applicant contends that he is now confused and does not know what course of action he should take. The applicant seems to suggest that he finds himself in limbo in that both the High Court and the Labour Court have pronounced that they have no jurisdiction to entertain his application.

The applicant thus seeks directions from this court.

The applicant further states that he has approached this court for his own benefit and also for the benefit of his fellow workers who should not know which court they can approach when faced with the same predicament.

The matter seems clear and straight forward to me. The Labour Act [Chapter 28:01], under section 89(6) provides that:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection(1).”

This matter falls squarely under the jurisdiction of the Labour Court which enjoys full jurisdiction to deal with and determine applications in terms of the Labour Act. The applicant is therefore directed to approach the Labour Court for appropriate relief. There is no need to order the parties to file Heads of Argument in the matter. The issues should be directed to the Labour Court where the application to restrain the respondents from hearing the disciplinary proceedings ought to be entertained.

In the result, the application is hereby struck off with no order as to costs.

SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

The grant or otherwise of a postponement is in the discretion of the court. A party seeking the grant of a postponement or other indulgence at the hearing must come prepared for a grant or refusal of its request. A legal practitioner must be prepared, in the event of a refusal by the court to ...

Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

The first ground of appeal is that the court a quo seriously misdirected itself, such misdirection amounting to an error in law, in refusing the application for a postponement to allow for the filing of a chamber application for the upliftment of a bar. This was under circumstances where it was clear that ...

This was under circumstances where it was clear that the appellants had been misled by the respondent's legal practitioners into believing that the parties were agreed on the issue of security.

The application for leave to adduce further evidence on appeal having been dismissed as indicated…, this ground of appeal loses relevance. The application for postponement that was made before the court a quo was based on two grounds;

(i) The first was that the postponement would enable the appellants herein to prosecute a chamber application for consolidation of the four matters then pending before the court a quo, with yet another matter.

(ii) The second was, it would allow the appellants herein to lodge an application for the upliftment of the bar that was operating against them all by reason of their failure to file heads of argument in all the four matters.

The court a quo was advised that the said application would be filed later on the day of the hearing.

The court a quo was of the view that the appellants (respondents in court a quo) were buying time as it should have been apparent to them that there was a bar requiring upliftment which should have been attended to earlier. The court a quo declined to postpone the matter on the grounds that the respondent could not be prejudiced because of the appellants' dilatoriness. The court a quo thus proceeded in terms of Rule 238(2b) to deal with the application on the merits.

The Rule allows the High Court, or a judge of the High Court, to deal with a matter on the merits or direct that it be set down for hearing on the unopposed roll, where heads of argument which are required to be filed in terms of Rule 238(2) are not filed within the specified period.

The court a quo's reasons for refusing the application have not been refuted, save for the averment that the court seriously misdirected itself. The alleged misdirection is then related to the court's refusal having been made in the face of clear circumstances that the “appellants had been misled by the respondent's legal practitioners into believing that the parties were agreed on the issue of security.”

It appears that these are the 'circumstances' that the appellants have unsuccessfully sought to adduce as further evidence on appeal before this Court. It does not make sense for the court a quo to be now 'accused' of having not paid heed to 'circumstances' that were not before it.

No misdirection has thus been established on the part of the court a quo.

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

On the date set for its hearing, the said appeal was postponed sine die by the Supreme Court. The postponement was apparently due to issues that arose regarding the citation and/or representation of the parties, which issues were to be sorted out during the period of the postponement. The issues apparently arose due to misunderstandings that developed between the applicants and the second respondent.

The applicants thus instituted the instant application with the anticipation that their success in this application will enable their participation, in their individual capacities, in the appeal in SC570/14, which appeal is expected to be re-set down for hearing after the determination of this application.

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

This matter was heard on 13 January 2016 with judgment being reserved.On 27 January 2016, this court determined, that, in view of the fact that this case raises similar issues as that of Farai Lawrence Ndlovu Anor v The Minister of Justice Legal Parliamentary Affairs, Constitutional ...

HB109-16 : EDSON MUDZINGWA vs SUSAN CHITANDO MAPANZURE and REGISTRAR OF DEEDS (HARARE) N.O.
Ruled By: MATHONSI J

At the hearing of the application, counsel who appeared for the first respondent as a correspondent legal practitioner for Messrs Chuma, Gurajena and Partners of Masvingo sought a postponement of the matter on the basis that the first respondent had only been served with the notice of set down and not the urgent application. He submitted that he ...

He submitted that he had been telephoned by his correspondents yesterday and instructed only to seek a postponement on that basis.

Counsel for the applicant produced the Sheriff's return of service showing that the first respondent was indeed served with the application yesterday. It became apparent that she had the application and the notice of set down at least 24 hours before the time set for the hearing of the application.

This court is always slow to refuse a postponement where the reason for a party's lack of preparedness has been fully explained and the inability to proceed is not due to delaying tactics. However, such an application must not only be made timeously, as soon as the circumstances justifying it become known, it must also be bona fide and not as a result of lack of diligence.

See Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NSC)…,; Hughber Petroleum (Pvt) Ltd v Nyambuya and Another HH78-14.

The court has a discretion, to be exercised judiciously, to grant or refuse an application for a postponement. Where the application for a postponement lacks bona fides, it would not be a judicious exercise of discretion to grant the postponement. See Warwick v Jonga HH747-15.

What litigants should appreciate is that where an application has been brought on a certificate of urgency, Rule 244 requires the Judge before whom such an application is placed to drop everything and consider the papers forthwith.

Of course, the Judge has a disrection to set the matter down and direct that any interested person be invited to make representations in terms of the proviso to that Rule. Where the respondent has been invited to make representations as to whether the application should be treated as urgent or as to whether it has merit, it is not for them to then seek to defer the hearing of the matter which has already been set down to a date of their choice. They must make themselves available at the time set and make those representations.

A trend appears to have developed, especially among legal practitioners stationed in small centres, to think that a postponement of matters is there for the taking. It is not, and urgent matters which cause the judge to drop everything in order to accommodate the parties will not be postponed to suit the whims of legal practitioners.

As it turns out, the reason for seeking a postponement, namely, that the application was not served, has been shown to be false.

It is against that background that I dismissed the application for a postponement.

HH747-15 : BARRY JAMES WARWICK vs MERCY JONGA
Ruled By: MATHONSI J

Up to yesterday, the respondent was represented by Messrs Antonio Dzvetero of Harare. They filed her opposing papers and have not formally filed any notice of renunciation of agency. However, only yesterday, 16 September 2015, the respondent personally filed well-researched and written heads of argument which could only have been prepared by a legal practitioner. ...

Up to yesterday, the respondent was represented by Messrs Antonio & Dzvetero of Harare. They filed her opposing papers and have not formally filed any notice of renunciation of agency.

However, only yesterday, 16 September 2015, the respondent personally filed well-researched and written heads of argument which could only have been prepared by a legal practitioner. There is no way the respondent could have done these heads of argument on her own. Very relevant case law authorities are cited complete with points in limine that have been taken. I have counted not less than five (5) case law authorities apart from statutes that are cited in those heads of argument. The format, presentation and the language used is clearly that of a trained legal person.

I have seen it necessary to set out the foregoing because, at the hearing of the matter, the respondent appeared in person and made an application for a postponement of the application to enable her to secure the services of a legal practitioner to represent her - a very tired ruse employed by litigants bent on frustrating just claims in order to buy themselves time. According to the record, Antonio & Dzvetero legal practitioners have not renounced agency meaning that they still represent the respondent, but they did not bother to turn up for the hearing.

That, coupled with the fact that every document necessary for the hearing and determination of the matter has been prepared by a legal practitioner, means that the respondent and her legal practitioner are trying to play games with the court. They are trying to abuse the court and manipulate it for selfish ends at the expense of the other litigant.

There is clearly no reason for the postponement of this matter; which postponement, in my view, is sought in very bad faith.

The court has a discretion, to be exercised judiciously, to grant or refuse an application for a postponement. It would be slow to refuse a postponement where the reason for the party's non-preparedness has been fully explained and the inability to proceed is not due to delaying tactics: Hughber Petroleum (Pvt) Ltd & Anor v Brent Oil Africa (Pty) Ltd HH78-14. Not only should such an application be timeously made, as soon as the circumstances justifying it become known, it must also be bona fide and not used as a tactical manoeuvre for the purposes of obtaining an advantage. Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of the court will be exercised; Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NSC)…,.

In this matter, I refused the application because of its lack of bona fides. It was made for purposes of delay, and the involvement of the absent legal practitioner in all this could not be discounted. Perhaps even the merits of the matter themselves tend to shed light as to why such tactic was resorted to.

SC68-17 : JUDICIAL SERVICE COMMISSION vs ROMEO TAOMBERA ZIBANI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

In response, counsel for the appellant argued that the application for postponement was not timeous or bona fide and simply designed to delay proceedings to the appellant's prejudice. Having considered all of these submissions, the Court was of the unanimous view that the extant bar against the first respondent remained in operation, and, that, having had ample ...

CC10-18 : INNOCENT GONESE and JESSIE MAJOME vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and BHUNU JCC

In terms of Rule 5(1)(b) of the Constitutional Court Rules 2016, this Court may give such directions as to procedure, in respect of any matter not expressly provided for in the Rules, as appear to it to be just and expedient.

HB142-16 : WILTSHIRE EXPLOSIVES PL vs OLYMPUS GOLD ZIMBABWE LTD t/a GOLDEN QUARRY MINE and FALCON GOLD LTD t/a DALNY MINE and CASMYN MINING ZIMBABWE PL and OLYMPUS GOLD ZIM LTD t/a OLD NIC MINE
Ruled By: MATHONSI J

The matters were originally set down for trial before me on 8 March 2016 with the defendants being served with the Notice of Set Down for that date almost a month earlier on 12 February 2016. A day before the date of trial, the defendants' legal practitioners wrote a letter dated 7 March 2016 to the ...

The matters were originally set down for trial before me on 8 March 2016 with the defendants being served with the Notice of Set Down for that date almost a month earlier on 12 February 2016.

A day before the date of trial, the defendants' legal practitioners wrote a letter dated 7 March 2016 to the Registrar seeking a postponement of the matter for all the wrong reasons. They said;

“RE: WILTSHIRE EXPLOSIVES (PVT) LTD V OLYMPUS GOLD ZIMBABWE (PVT) LTD t/a GOLDEN QUARRY MINE AND 3 OTHERS: CASE NO HC1575/14, HC1576/14, HC1577/14 AND HC1578/14

The above matter refers.

This matter has been set down before the Honourable Mathonsi J for the 8^th and 9^th March 2016. However, the defendants are still finalizing the internal audit report which shows that the explosives that were stolen exceed the initial US$95,000=. The audit will be finalized within two (2) months. Furthermore, defendants will also need to join other parties for purposes of their counterclaim. We are therefore kindly requesting that the matter be removed from the roll pending the finalization of the internal report.”

Here is a litigant that had filed opposition to claims on the basis that it had suffered prejudice arising from pilfering. It had anchored its counterclaim on those allegations - and yet an audit to prove that claim had not been commissioned or undertaken. To compound matters, it had gone to a pre-trial conference just to fulfill a fixture and consented to the matter being referred to trial when it was yet to gather evidence.

So what was being referred to trial when the defendants were still to put together their case?

It has always been said that litigants should go to a pretrial conference ready for trial. In other words, all the evidence must be in place with statements of witnesses having been recorded and trial documents discovered. If pretrial conferences are to serve the purpose for which they were invented, which is the curtailment of proceedings, litigants must start taking them seriously and participate in them fully as provided for in the Rules.

In terms of Rule 181(2) of the High Court of Zimbabwe Rules, 1971, at the pre-trial conference the parties “shall” attempt to reach agreement on possible ways of expediting or curtailing the duration of the trial on a number of issues including obtaining admissions of fact and of documents, holding any inspection or examination, the exchange of reports of experts, giving further particulars, preparation of a bundle of documents for trial and so on.

Of late, litigants just treat a pre-trial conference as an inconvenience that has to be undertaken and do not bother to make it what it is meant to be. Otherwise how does one explain the participation in a pretrial conference by a party that has not even put together its case. A party that is yet to conduct a crucial audit - whose report is to be used at the trial. Yet a plea would have been filed for that party under very false pretences and merely to ward off the plaintiff's claim. It is dishonest and if ever there is any reason why this court finds itself increasing with an insurmountable backlog of cases, that is the reason. In most of the causes awaiting trial, not only is there no real dispute, there is also a complete lack of goodwill. Most parties do not even intend to go to trial making the pleading a monumental fraud.

But then I digress.

The plaintiff's legal practitioners were strongly opposed to a postponement. Perhaps because the defendant had no desire whatsoever to commence the trial, the parties appeared in my chambers on 8 May 2016 with the defendants represented by Mrs Moyo instructed by Joel Pincus Konson & Wolhuter. Mrs Moyo advised me that a postponement was sought, not because there was an audit being undertaken, but because the parties were discussing a settlement which was disputed by Mr Chamunorwa for the plaintiff whose view was that the defendants had adopted a cavalier approach to the matter. Any reason would do as long as the defendants secured a postponement.

I, however, acceded to the request for a postponement and directed, inter alia, that the matter be set down as the first one for this term. It was then set down for 31 May and 1 June 2016 with the defendants being served with the Notice of Set Down on 12 May 2016, although they were aware that the matter would be for first one for this term from March 2016.

The inconvenience of that knowledge and the set down could not deter the defendants from taking another shot. By letter of 24 May 2016, written to the plaintiff's legal practitioners and copied to the Registrar, Joel Pincus Konson & Wolhuter sought another postponement. They wrote:

“RE: WILTSHIRE EXPLOSIVES (PVT) LTD VS FALCON GOLD ZIMBABWE: CASE NO. HC1575/14

The above matter refers.

Please be advised that Advocate Hilda Makusha-Moyo who has been instructed to deal with this matter is currently out of the country and will only be returning on the 15^th July 2016, and, as such, the trial dates will not be suitable for the defendant. We kindly request that the matter be postponed to any available date after her return. Your assistance in this matter is greatly appreciated.”

There appears to be a misconception among legal practitioners that they can accept or reject a set down date. In our jurisdiction, matters are set down by the Registrar of the court in liaison with the Judge assigned to deal with the matter. That is done in a manner that accords the parties sufficient time to prepare and to avail themselves at the trial or hearing date. It is therefore not the province of a legal practitioner to decide when a matter should be set down although the court will ordinarily accede to a genuine application for a postponement where acceptable reasons for lack of preparedness have been fully explained and the inability to proceed is not due to delaying tactics. However, such an application must not only be made timeously as soon as the circumstances justifying it become known, it must also be bona fide and not as a result of lack of diligence. See Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NSC)…,.; Hughber Petroleum (Pvt) Ltd v Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (H)…,.

One should also add that the factor of prejudice on the other party is of primary consideration and would ordinarily constitute the dominant component of the total structure in terms of which the court will exercise its discretion in favour of the grant of a postponement; for a discretion it is when the court allows a matter that has been properly set down, on notice to all concerned, to be postponed. Where the application for a postponement lacks bona fides, it would not be a judicious exercise of discretion to grant the postponement: Warwick v Jonga HH747-15; Mudzingwa v Mapanzure and Another HB109-16.

When the letter from the defendants' legal practitioners was brought to my attention, and considering that they still had ample time to instruct someone else to represent them at the trial, I directed the Registrar to notify them to proceed to do so. They did that, as Ms Dube was then briefed and did appear on the defendants' behalf when the trial commenced on 31 May 2016 - surprisingly not for the conduct of the trial but to launch a formal application for a postponement.

Talk of a display of a never-say- die attitude.

Ms Dube submitted that an application was sought for a postponement in respect of the defendants' counter-claim. She stated that the defendants had instituted summons action against one Richman Zvabvirepi and one Jackson Saungweme in HC951/16 and had, that very morning, filed a chamber application seeking an order consolidating HC951/16 with these four matters. Accordingly, they sought a postponement sine die to enable them to attend to that.

In fact, HC951/16 is an action instituted on 14 April 2016 by Casmyn Mining (Pvt) Ltd against those two only and only appearance to defend has been filed by both.

Significantly, neither Richman Zvabvirepi nor Jackson Saungweme are parties in any of the four matters before me. As to how, and indeed why, the defendants would have wanted a matter completely divorced from the current proceedings to be consolidated with them is difficult to fathom. Ms Dube could only say that it is convenient to them as the evidence they would lead in that new matter, which had just been issued and had not even progressed to pre-trial conference stage, is the same evidence they proposed to lead in the present matters.

An action is frivolous or vexatious in a legal sense when it is obviously unsustainable, manifestly groundless or utterly hopeless and without foundation; Rogers v Rogers SC07-08.

That is exactly what the application for the second consolidation, if at all it has been made, because Ms Dube did not refer to any case number for that doomsday application, is. Clearly, the defendants are intent on tying the plaintiff down to footling court proceedings brought on spurious grounds in order to stave off the day of reckoning, even when they have long admitted taking delivery of goods worth $102,246=82 from the plaintiff - a typical Zimbabwean way of doing business.

It is for the foregoing reasons that, in the exercise of my discretion, I dismissed the application for a postponement and directed that the trial commences.

HH78-14 : HUGHBER PETROLEUM (PVT) LTD and HUBERT NYAMBUYA vs BRENT OIL AFRICA (PTY) LTD
Ruled By: MATHONSI J

At the hearing of this matter, the applicants' counsel did not bother to attend court. Instead, he sent the second respondent, and an inappropriately dressed representative of the first respondent, with a letter dated the same date addressed to the respondent's legal practitioners and copied to my clerk which reads, in relevant part, thus: “RE: HUGHBER PETROLEUM (PVT) ...

“RE: HUGHBER PETROLEUM (PVT) LTD & ANOR V BRENT OIL: CASE NO. HC1292/12

Reference is to the above subject.

Kindly be advised that our Mr Chekai, who is handling the matter, is attending to a family emergency in his rural home in Chibi, which emergency was occasioned by flooding of the Tokwe Mukosi River. We kindly request that the matter be postponed to the 6^th March or any day thereafter to enable him to attend.

We thank you in advance.”

Now, this can be nothing but holding the court in contempt. Kantor & Immerman are not the court and certainly do not postpone matters.

It is the court that does.

The law firm of M.C. Mukome did not have the courtesy or indeed the integrity to send a legal practitioner to attend court and seek a postponement if indeed there was a valid reason for that. Instead they sent their client to do that with a letter suggesting that a postponement was always there for the taking not even the asking….,.

The unrepresented second applicant sought a postponement as decreed by his counsel.

Now, the court has a discretion, which should be exercised judiciously, to grant or refuse an application for a postponement. The court would be slow to refuse a postponement where the reason for a party's non-preparedness has been fully explained and the inability to proceed is not due to delaying tactics. However, as stated in Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NSC)…, an application for a postponement must be made timeously as soon as the circumstances justifying it become known; it must always be bona fide and not used simply as a tactical manoeuvre for the purposes of obtaining an advantage. Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of the court will be exercised.

I refused the application because it lacked bona fides and was clearly a ruse to delay proceedings by an extremely contemptuous legal practitioner.

prev 1 2 3 next

Back Main menu

Law Portal Zimbabwe

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA Ruled By: GUVAVA J

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT Ruled By: GUVAVA J

Appealed HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: CHATUKUTA J

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya) Ruled By: MAWADZE J

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS Ruled By: HUNGWE J

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

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU Ruled By: MAWADZE J

HH32-12 : ZELLCO CELLULLAR PL vs NETONE CELLULLAR PL and DR CALLISTUS NDLOVU and REWARD KANGAI and LYNDON NKOMO Ruled By: GOWORA J

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

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

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA Ruled By: KUDYA J

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA Ruled By: HUNGWE J

HB38-09 : GREENFIELD NYONI vs MRS. L. P. ELMISSING and MR.M. M. ELMISSING Ruled By: CHEDA J

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS Ruled By: CHITAKUNYE J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS Ruled By: MTSHIYA J

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS Ruled By: MAKARAU JP

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL Ruled By: UCHENA J

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE Ruled By: MAVANGIRA J

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS Ruled By: MTSHIYA J

HH153-10 : ACHIBOLD NDIDZANO vs PAULINE GONDORA and HOPEMORE ARUFANDIKA and HARDWORK MUTYENYOKA and SIX OTHERS Ruled By: HUNGWE J

HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT Ruled By: CHIWESHE JP

SC33-15 : APEX HOLDINGS (PRIVATE) LIMITED vs VENETIAN BLINDS SPECIALISTS LIMITED Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD Ruled By: GOWORA J

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO Ruled By: MTSHIYA J

HH204-10 : BENSON SAMUDZIMU vs DAIRIBORD HOLDINGS LTD Ruled By: CHIWESHE JP

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA Ruled By: CHITAKUNYE J

HB02-10 : MAHLULELI NIXON DUBE vs N & S PROPERTIES and NICHOLAS MASUKU and JONAH DUMAH and POLINA DUMAH and CITY OF BULAWAYO Ruled By: KAMOCHA J

View Appeal HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS Ruled By: UCHENA J

HB152-11 : DERICK MASEKO vs MPIKELELO NGANEZWE KHUMALO and THE DEPUTY SHERIFF Ruled By: KAMOCHA J

HB142-10 : PECHI INVESTMENTS (PVT) LTD vs MAURICE MUTATSI NYAMUDA T/A EBUNANDINI RESTAURANT Ruled By: CHEDA J

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD Ruled By: MATHONSI J

HH57-11 : ELGATE INVESTMENTS (PVT) LIMITED and OTHERS vs THE MASTER OF HIGH COURT and WESLEY MILITALA and PARROGATE ZIMBABWE (PVT) LTD and OTHERS Ruled By: MTSHIYA J

HH52-13 : SOUTHMARK TRADING (PRIVATE) LIMITED and OTHERS vs KAROI PROPERTIES (PRIVATE) LIMITED and GEDION HWEMENDE and NATIONAL INDIGENISATION AND ECONOMIC EMPOWERMENT BOARD and OTHERS Ruled By: ZHOU J

HH59-13 : MARGARET SUMBURERU vs PRISCA CHINAMORA and THE MASTER OF THE HIGH COURT and WILBERT NYAMUPFUKUDZA N.O. Ruled By: GUVAVA J

HH73-13 : SIBONGILE KAZIBONI vs CHAMPION CONSTRUCTION (PRIVATE) LIMITED Ruled By: MATHONSI J

View Appeal HH100-13 : H. J. VORSTER (PVT) LTD vs SAVE VALLEY CONSERVANCY Ruled By: MATHONSI J

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS Ruled By: BHUNU J

HB73-11 : DIANA KUTSANZIRA vs TITUS TSVANGIRAI Ruled By: KAMOCHA J

HB119-14 : NKULULEKO MASUKU vs EMANUEL MUGADZA N.O. (HEARING OFFICER) and MBCA BANK LIMITED Ruled By: MAKONESE J

SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

Appealed SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE Ruled By: MAVANGIRA JA

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

HB109-16 : EDSON MUDZINGWA vs SUSAN CHITANDO MAPANZURE and REGISTRAR OF DEEDS (HARARE) N.O. Ruled By: MATHONSI J

HH747-15 : BARRY JAMES WARWICK vs MERCY JONGA Ruled By: MATHONSI J

SC68-17 : JUDICIAL SERVICE COMMISSION vs ROMEO TAOMBERA ZIBANI and OTHERS Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

CC10-18 : INNOCENT GONESE and JESSIE MAJOME vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING N.O. Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and BHUNU JCC

HB142-16 : WILTSHIRE EXPLOSIVES PL vs OLYMPUS GOLD ZIMBABWE LTD t/a GOLDEN QUARRY MINE and FALCON GOLD LTD t/a DALNY MINE and CASMYN MINING ZIMBABWE PL and OLYMPUS GOLD ZIM LTD t/a OLD NIC MINE Ruled By: MATHONSI J

HH78-14 : HUGHBER PETROLEUM (PVT) LTD and HUBERT NYAMBUYA vs BRENT OIL AFRICA (PTY) LTD Ruled By: MATHONSI J

Categories

Your Donation.

Law Portal
Zimbabwe

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

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

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

HH32-12 : ZELLCO CELLULLAR PL vs NETONE CELLULLAR PL and DR CALLISTUS NDLOVU and REWARD KANGAI and LYNDON NKOMO
Ruled By: GOWORA J

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

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

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

HB38-09 : GREENFIELD NYONI vs MRS. L. P. ELMISSING and MR.M. M. ELMISSING
Ruled By: CHEDA J

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS
Ruled By: MAKARAU JP

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

HH153-10 : ACHIBOLD NDIDZANO vs PAULINE GONDORA and HOPEMORE ARUFANDIKA and HARDWORK MUTYENYOKA and SIX OTHERS
Ruled By: HUNGWE J

HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT
Ruled By: CHIWESHE JP

SC33-15 : APEX HOLDINGS (PRIVATE) LIMITED vs VENETIAN BLINDS SPECIALISTS LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

HH204-10 : BENSON SAMUDZIMU vs DAIRIBORD HOLDINGS LTD
Ruled By: CHIWESHE JP

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

HB02-10 : MAHLULELI NIXON DUBE vs N & S PROPERTIES and NICHOLAS MASUKU and JONAH DUMAH and POLINA DUMAH and CITY OF BULAWAYO
Ruled By: KAMOCHA J

View Appeal
HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS
Ruled By: UCHENA J

HB152-11 : DERICK MASEKO vs MPIKELELO NGANEZWE KHUMALO and THE DEPUTY SHERIFF
Ruled By: KAMOCHA J

HB142-10 : PECHI INVESTMENTS (PVT) LTD vs MAURICE MUTATSI NYAMUDA T/A EBUNANDINI RESTAURANT
Ruled By: CHEDA J

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

HH57-11 : ELGATE INVESTMENTS (PVT) LIMITED and OTHERS vs THE MASTER OF HIGH COURT and WESLEY MILITALA and PARROGATE ZIMBABWE (PVT) LTD and OTHERS
Ruled By: MTSHIYA J

HH52-13 : SOUTHMARK TRADING (PRIVATE) LIMITED and OTHERS vs KAROI PROPERTIES (PRIVATE) LIMITED and GEDION HWEMENDE and NATIONAL INDIGENISATION AND ECONOMIC EMPOWERMENT BOARD and OTHERS
Ruled By: ZHOU J

HH59-13 : MARGARET SUMBURERU vs PRISCA CHINAMORA and THE MASTER OF THE HIGH COURT and WILBERT NYAMUPFUKUDZA N.O.
Ruled By: GUVAVA J

HH73-13 : SIBONGILE KAZIBONI vs CHAMPION CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MATHONSI J

View Appeal
HH100-13 : H. J. VORSTER (PVT) LTD vs SAVE VALLEY CONSERVANCY
Ruled By: MATHONSI J

HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

HB73-11 : DIANA KUTSANZIRA vs TITUS TSVANGIRAI
Ruled By: KAMOCHA J

HB119-14 : NKULULEKO MASUKU vs EMANUEL MUGADZA N.O. (HEARING OFFICER) and MBCA BANK LIMITED
Ruled By: MAKONESE J

SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

HB109-16 : EDSON MUDZINGWA vs SUSAN CHITANDO MAPANZURE and REGISTRAR OF DEEDS (HARARE) N.O.
Ruled By: MATHONSI J

HH747-15 : BARRY JAMES WARWICK vs MERCY JONGA
Ruled By: MATHONSI J

SC68-17 : JUDICIAL SERVICE COMMISSION vs ROMEO TAOMBERA ZIBANI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

CC10-18 : INNOCENT GONESE and JESSIE MAJOME vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and BHUNU JCC

HB142-16 : WILTSHIRE EXPLOSIVES PL vs OLYMPUS GOLD ZIMBABWE LTD t/a GOLDEN QUARRY MINE and FALCON GOLD LTD t/a DALNY MINE and CASMYN MINING ZIMBABWE PL and OLYMPUS GOLD ZIM LTD t/a OLD NIC MINE
Ruled By: MATHONSI J

HH78-14 : HUGHBER PETROLEUM (PVT) LTD and HUBERT NYAMBUYA vs BRENT OIL AFRICA (PTY) LTD
Ruled By: MATHONSI J