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Lis Alibi Pendens or Pending Litigation re: Approach

SC03-11 : BUBYE MINERALS (PVT) LIMITED vs MINISTER OF MINES AND MINING DEVELOPMENT AND MINERALS AND MARKETING CORPORATION OF ZIMBABWE AND MINING COMMISSIONER MASVINGO AND RIVER RANCH (PVT) LTD
Ruled By: MALABA DCJ, SANDURA JA and ZIYAMBI JA

It is necessary to point out that at the time the application was made to the High Court, the fourth respondent had formally withdrawn all the appeals it had filed in the Supreme Court in cases SC-289-05 and SC-144-05. It had also formally withdrawn cases HC10814/04 and HC2091/05 from the High Court. The question ...
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HH02-12 : SWANDALE PROPERTIES (PRIVATE) LIMITED vs VENENCIA MADAKE AND MUNICIPALITY OF HARARE
Ruled By: MUTEMA J

Mr..., raised a pertinent point in limine viz, that of lis alibi pendens. His contention was that the same matter is before this court under case number.,. Apparently what the applicant had done was that apart from lodging the appeal..., it had also instituted contempt of court proceedings against the first respondent in case number..., without ...
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HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS
Ruled By: KUDYA J

The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security ...
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HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

One of the issues that stand out for my determination is whether there is a matter regarding the property pending before the High Court. In the first respondent's opposing affidavit, the averment regarding this issue is simply that "the dispute regarding the property is pending at the High Court." No case number pertaining to the matter ...
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HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

The fourth point in limine was that there is another pending matter i.e. HC2230/10 brought by the applicant against the respondents where first respondent's decision is being challenged. The first respondent can still raise these issues in that matter. In any event, that matter deals with the same issues which are being raised here.
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HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA
Ruled By: MUSAKWA J

As was stated by McNALLY JA in the case of Mhungu v Mtindi 1986 (2) ZLR 171 (S)…,:“The defense raised by this allegation is the defence of lis pendens, sometimes known as lis alibi pendens. HERBSTEIN and Van WINSEN in the Civil Practice of the Superior Courts in South Africa ...
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HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

The third preliminary point of law that was raised pertaining to both matters was that of the defence of lis alibi pendens. Lis Alibi Pendens The respondent raised the plea of lis alibi pendens in opposition to the hearing of the matters HC 4327/08 (the application) and HC 2792/09 (the urgent chamber application), maintaining that both matters ...
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HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

In Estate Breytenbach v Breytenbach 1945 TPD..., it was said – “If the present matter can be decided on affidavit, it is certainly just and equitable, and convenient, that it should be so decided, otherwise respondent, by reason merely of the fact that he has issued summons, will remain for a considerable period in possession of ...
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HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.The Tribunal gave its judgment in ...
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HB102-09 : ERMANUS GERHADUS GROVE vs MARTIN MAKONESE and MRS MARWISA and MR CHIGARIRO
Ruled By: KAMOCHA J

The respondents raised points in limine which, inter alia, were that they had a defence of lis pendens. The defence was premised on the fact that on 21 June 2007, the applicant filed an application at the High Court, Harare in case HC3171/07 against Martin Makonese and the Murwisa family, seeking the identical relief on ...
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HH27-10 : ROUTE TOUTE BV and PENINSULAR PLANTATIONS (PVT) LTD and MATANUSKA (PVT) LTD and BRIGHTSIDE FARM (PVT) LTD vs SUSNSPUN BANANAS (PVT) LTD and AMBASSADOR-MAJOR GENERAL CHIMONYO
Ruled By: CHATUKUTA J

The second point in limine raised by counsel for the second respondent was that the matter was lis pendens as there was an application pending before MUSAKWA J, in case no. HC128/09, wherein the second respondent in the present application was seeking an application for stay of execution. It appears that the issue fell on ...
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HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA
Ruled By: BHUNU J

The respondent has strongly objected to this Court's jurisdiction on the grounds that the matter is now within the domain of the Supreme Court. The respondents have strenuously opposed the application on the basis that the appeal was filed during working hours – after HLATSHWAYO J had delivered his judgment. They denied that the judge delivered ...
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HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

The first applicant is a public company listed on the London Stock Exchange. The second to fifth applicants (Dashaloo Investments (Pvt) Ltd, Possession Investments (Pvt) Ltd, Heavy Stuff Investments (Pvt) Ltd, Olebile Investments (Pvt) Ltd) are Zimbabwean companies duly incorporated in terms of the laws of Zimbabwe. They are wholly ...
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HH170-10 : ASSESTFIN (PVT) LIMITED vs ANTONY PAREWA and PAUL CHIDAWANYIKA and TAKTA INVESTMENTS (PVT) LIMITED and CHIGWANDA AND ASSOCIATES LEGAL PRACTITIONERS and REGISTRAR OF DEEEDS
Ruled By: MAVANGIRA J

The deponent to the founding affidavit avers that he is the Board Chairman of the applicant company. He avers that there is a pending matter in the High Court between him, on the one hand, and the first and second respondents on the other in HC1753/09, in which the court will be tasked to ...
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HH80-11 : CAIRO MHANDU vs JORDAN MUSHORE and RONALD MUSHORE and SAKALA CHOKOTO and FAITH DZAWO and DEPUTY SHERIFF
Ruled By: BHUNU J

The applicant is the holder of an offer letter in respect of Subdivision 8 of Galloway in the District of Mazowe in Mashonaland Central Province. He is involved in a vicious land dispute with the first four respondents.None of the respondents has an offer letter relating to Plot 8. The second and third respondents claim ...
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HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

Further, at the time the third respondent sat to grant leave to execute, the matter was already pending before a superior court by way of appeal and review. The same issues were pending to be dealt with before the High Court. By bringing the present application, the applicant wants the present judge to determine the application ...
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HB91-10 : OSEFELUPILU MOYO (Nee SEDANGE) vs ESTER KELLY N.O. and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MATHONSI J

The applicant alleges that the moment both respondents were served with his summons in Case No. HC394/07, they were supposed to immediately halt further action on the estate and the second respondent should not have allowed the first respondent to frame and lodge a distribution account of the estate, but, instead, await the outcome ...
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HB100-10 : STEPHEN NDLOVU vs THE OFFICER COMMANDING ZRP, BULAWAYO PROVINCE and THE COMMISSIONER GENERAL and CO-MINISTER OF HOME AFFAIRS
Ruled By: CHEDA J

Generally, all litigants are expected to await the finalisation of a matter before the court. Therefore, any affected party has reason to worry when the other party is showing indications of a desire to execute before the pending matter is finalised.
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HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA
Ruled By: MAVANGIRA J

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:-1. That first, second, and fourth respondents and/or their agents ...
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HH327-13 : CHAPARREL TRADING (PRIVATE) LIMITED vs ZIMBABWE ENERGY REGULATORY AUTHORITY (ZERA)
Ruled By: MAVANGIRA J

Notably, the applicant has apparently filed with this Court an application for the review of the respondent's refusal to issue it with a license. That application is also still pending.
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HH344-13 : JAMILA OMAR vs SHABIR OMAR
Ruled By: DUBE J

Counsel for the respondent submitted that the validity of the sale is still an issue pending before the court and since that matter has not yet been determined it is inappropriate to bring this application. That this application is premature. On 30 September 2011, the respondent filed an application for rescission of judgment and ...
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HB63-11 : TAFARA CHATORA and FRANCO MUNETSI KATSANDE and MELUSI NDLOVU and ENOS NDLOVU vs THE CHAIRPERSON, WESTERN REGION RENT BOARD and P D S INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

More importantly, the inquiry into the validity or otherwise of the certificates of eviction in respect of the first, second and fourth applicants is pending in the Magistrates' Court. In respect of the third applicant, the same inquiry is pending on appeal to this court. It is wholly inappropriate for the applicants to then bring ...
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HH56-14 : MABWE MINERALS ZIMBABWE PL vs CHIROSWA MINERALS PL and BASE MINERALS PL and ORBERT MPOFU (Minister of Mines) and THE ATTORNEY GENERAL N.O. and MRS E. KAHONDE N.O. (Mining Commissioner)
Ruled By: CHIGUMBA J

The first and second respondents, Chirosva Minerals (Private) Limited and Base Minerals Zimbabwe (Private) Limited, opposed the urgent chamber application filed by the applicant on 21 August 2013. Mr. Peter Valentive deposed to the opposing affidavit, and stated that he is a 50% shareholder in the first respondent and Managing Director in the second respondent. ...
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HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE
Ruled By: GOWORA J

I turn now to deal with the question of lis pendens raised by counsel for the respondent.He submitted that the applicant is currently before the SADC TRIBUNAL where he and other farmers, whose farms are the subject of acquisition orders, have claimed certain relief from that body. In view of my findings above it is not necessary ...
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HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MARQUE MBATHA
Ruled By: MATHONSI J

Regarding the existence of an appeal to the Labour Court, I agree with counsel for the applicant that an Article 34 application is available to a litigant outside the appeal procedure and now that section 171(1)(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters, which had been ousted ...
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HB110-16 : FELIX SANGU vs COMMISSIONER GENERAL OF POLICE and THE BOARD OF SUITABILITY and CHIEF SUPERINTENDENT MBENGWA
Ruled By: MATHONSI J

No matter how frustrated police authorities may be by the upsurge in applications of this nature brought by police officers trying to avoid disciplinary action, care must be taken not to appear as if these officers are now being persecuted. They must still maintain a dispassionate approach to disciplinary action and remain on a moral high ...
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HH458-15 : THE EVANGELICAL CHURCH OF ZIMBABWE vs REVEREND DOCTOR ISAAC SODA
Ruled By: MATHONSI J

I must, however, express indignation at the conduct of Reverend Mateva who boasts of having presided over the inauguration of the respondent on 9 May 2015. This matter was set down for 13 May 2015. On 7 May 2015…, due notice for the hearing was served upon the respondent as well as on his legal practitioners, ...
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HH377-15 : MISHECK MUZA vs REGGIE FRANCIS SARUCHERA (as liquidator of J. W. Jaggers Wholesalers PL) and PRICES TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

Whoever had wanted the matter back in court had done so prematurely. The application for the rescission of the order by CHIGUMBA J was still pending.
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SC66-18 : PATRICK MAKAVA vs ROSEMARY MUTINGWENDE and MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

The fact that there was a pending court application wherein the first respondent sought, inter alia, an interdict was no bar for the first respondent to have brought the present application before the High Court. The court a quo was correct in its observation that the thrust in the Court Application was different from the present matter and that the ...
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HH35-17 : LYTTON INVESTMENTS (PVT) LTD vs STANDARD CHARTERED BANK (ZIMBABWE) LTD
Ruled By: MUNANGATI-MANONGWA J

Section 3 of the Class Actions Act [Chapter 8:17] states as follows: “3 Application for leave to institute class action (1) Subject to this section, the High Court may, on application, grant leave for the institution of a class action on behalf of any class of persons. (2) An application for the institution of a class action - (a) May be made by ...
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HH356-14 : CLEMENT RUZENGWE N.O. (as Trustee and Chairman of the Vitalis Zvinavashe Trust) and SHINGAI MUTUMBWA N.O. (as Trustee) and MARGARET MUTAMBA ZVINAVASHE N.O. (as Trustee) vs RICHARD ZVINAVASHE
Ruled By: CHITAKUNYE J

The respondent also contended that the matter is lis pendens in that he instituted proceedings in this court on 24 April 2012, in HC4380/12, for an order directing the second applicant to convene a meeting of the Vitalis Musungwa Gava Zvinavashe Trust. He contended that that meeting was to deal with issues complained of in ...
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HH484-14 : L.M.S. TIMBERS (PVT) LTD and LUKA PHAKATHI vs THE SHERIFF OF ZIMBABWE and PEOPLE'S OWN SAVINGS BANK and SETH CHIGODORA
Ruled By: MATHONSI J

Luka Phakathi…, makes reference to the application to suspend the sale filed under HC10970-11 arguing that the sale should not have been proceeded with against the backdrop of that application…,. The Sheriff conducted a hearing attended by all interested parties and concluded as follows: “The respondent alleges that the sale was done despite assurances from the Acting Sheriff, Mr ...
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HB123-17 : SERGEANT MAZUNGUNYE F048394B vs THE TRIAL OFFICER (SUPERINTENDENT MUTEMA) and COMMISSIONER GENERAL OF POLICE
Ruled By: MATHONSI J

It is significant that the applicant filed this application without completing the appeal process which he had commenced and without bothering to withdraw the appeal either. The respondents immediately took that point in limine, namely, that the application for review was incompetent by reason that the applicant made it without exhausting domestic remedies available to him in terms ...
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HH53-09 : ZIMBABWE ALLIED GROUP LTD vs MILDRED AND MATHIAS (PVT) LTD
Ruled By: MAKONI J

In its heads of argument, the respondent raised three points in limine. The first point was that the application for summary judgment was still pending on the basis that the applicant had not tendered costs. The second one was that the present application was not supported by a founding affidavit but by a supporting affidavit. The third ...
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HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society. The truth of the matter is that these currencies had ...
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HH93-18 : CHITUNGWIZA MUNICIPALITY vs MAXWELL KARENYI
Ruled By: TAGU J

The applicant seeks an order of rei vindicatio. It seeks recovery of its property, namely, motor vehicle, a Toyota Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung Galaxy S5, and a Samsung Tablet 4 presently in the possession of the respondent without the applicant's consent. The circumstances are that the respondent was employed by the ...
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HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15. The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot ...
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HH140-13 : TELONE (PRIVATE) LIMITED vs EDWIN MATINYARARE
Ruled By: MAKONI J

The respondent was employed by the applicant as Head Administration. As part of his employment benefits he was allocated a motor vehicle for his duties, namely, a Toyota Hilux registration number ABD 8617 (the vehicle). On 3 June 2011, the applicant terminated the respondent's contract of employment following disciplinary proceedings in terms of the National Code of Conduct. ...
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HH309-13 : WILLIAM BAIN & COMPANY HOLDINGS (PRIVATE) LIMITED vs AMON NYAMUKUNDA
Ruled By: MATHONSI J

The applicant and the respondent enjoyed an employer-employee relationship for a period of 16 years; the respondent having been taken in initially as a low level employee, but, to his credit, rising through the ranks to the position of Branch Manager for Marondera. At some stage during the period of employment, the respondent was issued with the employer's ...
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HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated ...
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HH634-15 : TETRAD HOLDINGS (PVT) LTD and OTHERS vs NATIONAL SOCIAL SECURITY and OTHERS
Ruled By: BHUNU J

On 28 May 2014 the first respondent, National Social Security Authority, obtained default judgment against the 11 applicants. The default judgment reads:“WHEREUPON after reading documents filed of record and hearing counsel;IT IS ORDERED That:1. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 11th defendant(s) be and ...
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HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS
Ruled By: DUBE J

This case concerns a sale and transfer of property carried out contrary to a court order.It is trite law that a thing done contrary to the direct prohibition of a court order is void and is of no legal effect. Such a thing is regarded as never having been done. ...
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HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: UCHENA J

This application was filed as an urgent chamber application on 29 August 2014. It was assigned to me for determination on 1 September 2014. After reading the file I endorsed on it the following statement;“There is a pending application for stay of execution. This application is therefore not urgent.”The endorsement ...
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HH552-15 : AMBASSADOR AGRIPA MUTAMBARA and ESTHER MUTAMBARA vs CONSTANTINE CHIMAKURE (EDITOR OF NEWSDAY NEWSPAPER) and ALPHA MEDIA HOLDNGS PL
Ruled By: MATANDA-MOYO J

This matter was set down before me on the unopposed roll. Upon perusing the file I noted that the issue of set down on the unopposed roll was hotly contested by the defendants.Correspondence between the parties shows that the defendants are claiming that they set the matter down in terms ...
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HHH145-13 : AFRICAN CONSOLIDATED RESOURCES (PRIVATE) LIMITED vs THE STATE
Ruled By: MUSAKWA J WITH ASSESSORS

Having been indicted on a charge of fraud, or, alternatively, contravening the Precious Stones Trade Act [Chapter 21:06] the accused applied to quash the charges on the basis that they do not disclose an offence.Having heard arguments from respective counsels I subsequently directed they file relevant authorities in support of ...