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Negligence or Dolus re: Liability iro Loss Arising from Commercial and Professional Negligence

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing ...
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HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town. In June 2007, the plaintiff consulted the defendant complaining of sensitivity to ...
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HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD
Ruled By: NDOU J

The plaintiff has issued summons against the defendant for the return of its trailer registration number 467-556M which had been leased to the defendant and which lease agreement has now been cancelled.Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be ...
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HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

The plaintiff's claim against the defendant was for:- (a) The return from the defendant all the property mentioned in paragraph 6 of its declaration; (b) In the alternative, payment in the sum of $29,793,200= being the value of the property that the defendant's employees took unlawfully; (c) Interest a tempore morae from the date of service of summons to date of full ...
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SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

This is an appeal against the decision of the High Court in Case No. HC4551/07, handed down on 12 December 2012, dismissing an application for default judgment against the respondents. The latter, having failed to file their plea, were barred in the proceedings before the court a quo. The appellant's claim, as amended, was for ...
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Appealed
SC27-14 : WYNINA (PVT) LTD vs MBCA BANK LIMITED
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The appellant company sued the respondent for the payment of damages in the sum of US$61,944=81 and costs of suit. The matter proceeded to trial at the end of which the High Court found for the respondent and dismissed the claim with costs. Dissatisfied with the result, the appellant has launched this appeal. The appellant, which ...
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HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

The issues for determination as defined at the pre-trial conference are - 1. On what legal basis is the defendant liable to the plaintiff? 2. Did the defendant exercise reasonable care while the consignment was in its custody? 3. Is the defendant liable for the loss of the consignment, and, if so, is the defendant liable to the ...
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HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

Ms. Florence Sigudu Matambo insisted, in her evidence, that the defendant owed the plaintiff a duty of care. Its liability, therefore, flowed from its breach of the duty of care. The defendant having accepted responsibility for the safe custody of the consignment it obviously had a duty of care towards the plaintiff. That being the case, ...
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HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

There is equally no merit in the defendant's partial defence to the effect that the plaintiff's failure to declare the value of the cargo so that it could have taken extra care of the property upon payment of an extra charge amounted to contributory negligence. That argument does not wash because the defendant was presented ...
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HH273-10 : WYNINA (PRIVATE) LIMITED vs MBCA BANK LIMITED
Ruled By: PATEL J

The plaintiff herein claims the sum of US$61,944=81 being money which the plaintiff expected to be allocated to it by the Reserve Bank of Zimbabwe in terms of a Tobacco Growers' Retention Scheme.The plaintiff avers that the defendant negligently failed to submit the plaintiff's application and that, as a result of that negligence, the plaintiff ...
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HH282-10 : NDINATSEI CATHRINE MABIKA vs TAPFUMANEYI RUZVIDZO and CHITUNGWIZA MUNICIPALITY and THE DEPUTY SHERIFF and MASTER OF THE HIGH COURT
Ruled By: CHATUKUTA J

On 19 January 2010, the applicant filed an application for condonation for the late filing of rescission of judgment granted in case no. HC6889/07 on 27 February 2008. The application was opposed by the respondent. On the date of hearing, the applicant withdrew the application and tendered costs on an ordinary scale. However, the respondent prayed for an order for ...
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HB17-14 : COLD STORAGE COMPANY LIMITED vs BEITBRIDGE RURAL DISTRICT COUNCIL
Ruled By: MUTEMA J

On 11 August 2011, the plaintiff approached the defendant for assistance in organizing cattle sales in Beitbridge District. The parties agreed that the plaintiff would transfer money for the purchase of the cattle into the defendant's bank account and the defendant would withdraw the money to be used at the sale points. It was also ...
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SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

NEGLIGENCE IN RESPECT OF TERMINATION OF PREGNANCY The negligence of the respondents' employees in relation to the non-termination of the appellant's pregnancy is pleaded as follows. (i) Firstly, the police failed to attend at the hospital within a reasonable time or to take reasonable steps to ensure that the pregnancy was terminated. (ii) Secondly, the matron failed ...
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SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

I think it necessary to comment on the formulation of the statutory provision under consideration. It is apparent from the foregoing that section 5(4) of the Termination of Pregnancy Act [Chapter 15:10] is ineptly framed and lacks sufficient clarity as to what exactly a victim of rape or other unlawful intercourse is required to do when confronted ...
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Appealed
SC42-13 : DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) vs ONISMO RUTSITO
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

This is an appeal against the judgment of the High Court sitting at Harare dismissing with costs an application for absolution from the instance.Background The respondent, who was plaintiff in the court a quo, issued summons claiming payment of damages in the sum of US$20,051= and costs of suit. The basis of his ...
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Appealed
SC42-13 : DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) vs ONISMO RUTSITO
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

Moreover, it was common cause that there are two separate companies involved in the manufacturing of coca-cola beverages. Whether the beverage forming the subject of this case was manufactured by the appellant or by Mutare Bottlers was never determined.
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HH10-15 : CHIDO MATEWA vs MAKONI RURAL DISTRICT COUNCIL and INTERNATIONAL ORGANISATION FOR MIGRATION
Ruled By: NDEWERE J

The plaintiff is leasing Dagbreek Farm from the State since 6 February, 2004. The first defendant is Makoni Rural District Council, a local authority in the area that Dagbreek Farm is situated. The second defendant is the International Organisation for Migration, a non-governmental organisation. On 16 April 2012, the plaintiff issued summons for ...
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HH10-15 : CHIDO MATEWA vs MAKONI RURAL DISTRICT COUNCIL and INTERNATIONAL ORGANISATION FOR MIGRATION
Ruled By: NDEWERE J

As pointed out in Goode v SA Mutual Fire and General Insurance Co. Ltd 1979 (4) SA 301…,; “Negligence is conduct which involves an unreasonable risk of harm to others. It is the failure, in given circumstances, to exercise that degree of care which the circumstances on the occasion demand.” The first defendant ...
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HB26-16 : KAMBUZI NINE MINE (PVT) LIMITED vs DOUGLAS PALFRAMAN and STEPHEN MURAMBASVINA T/A JARVIS PALFRAMAN LEGAL PRACTITIONERS and JOLIE OBERT
Ruled By: MATHONSI J

The applicant instituted summons action against the three respondents in HC707/15 for payment of $320,000= as recompense for the financial loss it suffered as a result of the alleged negligent misrepresentation by them that they had a mandate to sell an undivided portion of Stand 32 Gatooma Township held by a company known as ...
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HB99-16 : PELLADILLO INVESTMENTS (PVT) LTD vs RWAINDEPI MADONGORERE and DEPUTY SHERIFF GWERU N.O.
Ruled By: TAKUVA J

The applicant contended that it has a good defence to the first respondent's claim where he was awarded US$4,000= for fire burns and US$20,000= for mercury poisoning. Firstly, as regards fire burns, it is the applicant's contention that the first respondent voluntarily assumed risk when he lit a gas stove at 11pm in a thatched house ...
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HH60-15 : LOCAL AUTHORITIES PENSION FUND vs MUNYARADZI NYAKWAWA and JORAM ZIFUNZI and KINGSTON BUNGARE and EMMANUEL RAMUTSAMAYA and KINGDOM BANK LIMITED
Ruled By: MAFUSIRE J

The rest of the averments in the plaintiff's declaration seemed an amplification of the alternative cause of action, the one based on negligence. They were these: “2.8 Fifth Defendant is under a statutory duty and obligation to take measures to prevent its institutions, or the services its institutions offer, from being used to commit or facilitate financial crime. 2.9 Fifth ...
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HHH149-09 : THE STATE vs K A JUVENILE
Ruled By: UCHENA J and ASSESSORS: NYANDORO and MUTAMBIRA

Section 248 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]…., provides as follows-; “248 Consent to medical treatment for non-therapeutic purposes (1) In this section - “patient” means a person to whom medical treatment is given or upon whom a medical operation is performed; “qualified person”, in relation to any medical treatment or operation, means a person who, by virtue of ...
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HHMA24-18 : THE STATE vs JEREMIAH MATSVAIRE
Ruled By: MAWADZE J and ASSESSORS: MUSHUKU and DAURAMANZI

The question of causation is discussed by the learned author, JONATHAN BURCHELL, in his book Principles of Criminal Law 5th Edition 2016....,. The learned author deals with the need for a causal link between the act alleged or omission and the ultimate unlawful consequence. These are both factual and legal issues. Put differently, the act or omission complained ...
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HH189-15 : ELTON NYABUSHA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MATANDA-MOYO J

The plaintiff is a resettled farmer carrying out farming activities on Subdivision 1 of Eastworlds in Mazoe District. Such farm was offered to him on 21 February 2002 under the Government Resettlement Programme. On the farm is a 12 hectare lemon plantation under irrigation. There is a ZESA power line which passes through the lemon plantation. On ...
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HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION
Ruled By: HUNGWE J

The plaintiff was a passenger aboard Flight UM14176 from Harare to London on 9 September 1997. He had luggage. The defendant airline was to convey the luggage together with the plaintiff to London. When the plaintiff got to London he failed to get his luggage. It was lost. The plaintiff accepted payment of $4,694=28 from the ...
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HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage. The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who ...
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HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which ...
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HH194-11 : ONISMO RUTSITO vs DELTA BEVERAGES, a division of DELTA CORPORATION LIMITED
Ruled By: BERE J

At the close of the plaintiff's case the defendant swiftly moved to make an application for absolution from the instance. What runs through the plaintiff's declaration is the allegation that the defendant lacked due diligence and care in the manufacturing of its product to the extent that the product itself is not safe, clean, healthy and fit ...
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HH198-15 : MUCAL ENTERPRISES vs STEWARD BANK
Ruled By: TSANGA J

The defendant, Steward Bank, applies for absolution from the instance at the close of the plaintiff's case in matter founded on damages for breach of contract. The plaintiff is Mucal Investments. In its summons it seeks payment of US$553,544=42 by the defendant. The amount is sought as damages for loss of business between January and July 2013 ...
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SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

When this matter was called, counsel for the appellant applied to amend the grounds of appeal.Counsel for the respondent was not averse to the application. The matter was stood down to allow counsel to confer on the proposed amendments. When the matter resumed the parties indicated that they had agreed ...
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HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

Where a defect or dangerous condition in the conductor or any appliance of a power company, causing injury to a person or persons, negligence does not per se give rise to liability as against the power company. Liability on the part of the power company turns on whether it knew, ...
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HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

This is an exception by the defendant to the plaintiff's summons and declaration, as amplified by further particulars, on the grounds that the plaintiff's claim does not disclose a cause of action.The defendant further avers that the claim is bad in law.The background to this case is that the plaintiff ...
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HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.The property, whose description and location in Ruwa was known to ...
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HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

The plaintiff (Meikles) issued summons against the two defendants, Zimbabwe Stock Exchange (ZSE) and Alban Chirume (Chirume) claiming a declaratur and damages in the sum of $50,000,000.The background to the matter is that on 16 February 2013, the defendants suspended the trading of Meikles shares on the Zimbabwe Stock Exchange.The ...
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HHH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

If it had not been that it goes to the very root of the Declaration of Rights contained in Chapter 4 of the Constitution of Zimbabwe, in particular the right of every person to choose and be represented by a legal practitioner of their choice before any court of law, ...
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HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

In this application for default judgment, the plaintiff seeks an order to the effect that -“1. The respondents, jointly and severally, pay the applicant the sum of US$78,900.2. The respondents, jointly and severally, pay the applicant the sum of US$1,537,833=33 being the United States Dollar equivalent of ZW$46,135,000,000.3. Interest at ...
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HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J

This was an action matter. On the date of trial, it was postponed sine die by consent.The defence had raised a special plea of prescription. The plaintiff was not conceding it. In terms of a timetable agreed upon, the parties would file their written submissions. Judgment on prescription would be ...
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HH310-11 : CHINA SHOUGANG INTERNATIONAL vs STANDARD CHARTERED BANK ZIMBABWE LTD
Ruled By: BERE J

The facts, which are fairly straightforward and common cause in this matter, can safely be summarised as follows:The applicant is a company duly registered and incorporated in terms of the laws of Zimbabwe. The respondent is a registered commercial bank with a number of branches in Zimbabwe.The applicant runs two ...
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HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

All in the love of a pet! Many linguistic authors have described a pet to include “favourite, preference, darling, idol, jewel, apple of one's eye, matinee, or, in French, enfante gâte.”Having been frustrated or failed by human friends, whether male or female, humans all over the world from time immemorial ...
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