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Costs re: De Bonis Propriis, Deceased Estates and the Abuse of Representative Capacity Positions

HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER
Ruled By: BHUNU J

Being an adviser to the first respondent, the second respondent appears to have misled his principal by concealing and deliberately not disclosing to him the Investigating Committee's report. That kind of conduct cannot be tolerated by these courts. By consciously ignoring sound advice, thereby deliberately straying into the wilderness of costly illegality, the second respondent cannot cry foul when ...
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HB56-09 : BENTONS (PVT) LTD vs SWAN PROPERTIES (PVT) LTD
Ruled By: NDOU J

The respondent's legal practitioner has prayed that I grant costs de bonis propriis against the applicant's legal practitioner. The tendency is to award costs de bonis propriis against erring legal practitioners only in reasonably serious cases, such as cases of dishonesty, wilfulness, or negligence, in a serious degree – Law of Costs A.C.CILLIERS...,.; Jenkins v Loubser 1974 ...
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HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

Counsel for the second respondent sought costs de bonis propiis against Mr. Drury on account of his objectionable conduct. He submitted that he even wrote a letter to Mr. Drury in which he pointed out the deficiencies in the application. In the letter, he even suggested that the application against his client be withdrawn failing which ...
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HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

On costs, the applicant's prayer was to the effect that the first respondent be ordered to pay costs of suit on a legal practitioner-client scale. The first respondent did not file any papers in opposition to that. In his heads of argument and submissions in court, the applicant's counsel maintained that same stance that costs be paid ...
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HH176-10 : JOYCE CHAGADURA vs SHELLY ANTONIO and REGIS MUVEREGI and DIRECTOR OF HOUSING CITY OF HARARE and SHERIFF OF THE HIGH COURT
Ruled By: GUVAVA J

The plaintiff has been successful in her claim and should be awarded the costs. Whilst it is the practice in cases of deceased's estates to award costs against the estate it would, in my view, cause an undue hardship on this estate. The first defendant abused her position as executor to unjustly enrich herself at the expense ...
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HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

Costs The plaintiff, through counsel, made the following submission in respect of costs - “2.3. It is respectfully submitted that this is an appropriate case for costs to be given against the defendant and Neil James Bruce, the defendant's Managing Director, de bonis propriis jointly and severally the one paying the other to be absolved. This Honourable ...
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HB03-10 : SITHEMBILE SIBANDA vs PUMULO SAYELA and ESTATE LATE MFAKAZI NDLOVU and PLUMTREE TOWN COUNCIL and ASSISTANT MASTER OF THE HIGH COURT, BULAWAYO
Ruled By: KAMOCHA J

The estate was wound. The defendant had been appointed executrix dative before it was wound up, and she was the sole beneficiary. The responsibility of bearing the costs is hers and hers alone.
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HH130-13 : CLEMENTS MOMBERUME vs MARANGE APOSTOLIC CHURCH OF ST. JOHANNE and DAVISON SHONHIWA N.O. and MASTER OF THE HIGH COURT and DEPUTY SHERIFF OF MUTARE
Ruled By: CHITAKUNYE J

The applicant asked for costs on an attorney-client scale against the first respondent and counsel for the first respondent in person. It is not in every case of a misjudgement on the part of a legal practitioner that costs are awarded against him. There must be something that demands that such an award be made. In ...
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HB17-11 : JONATHAN M. GAPARE and TLP AGENCIES (PVT) LTD t/a ALPHA PROPERTIES DEVELOPERS vs FARAI MUSHIPE and THE DEPUTY SHERIFF, BULAWAYO
Ruled By: MATHONSI J

If the certificate of urgency issued by Messrs Moyo Nyoni was an aberration, then the conduct of the legal practitioners representing the applicants who put together the defective application is unforgivable. There is nothing to suggest that the lawyer acquainted himself with the Rules relating to the making of an urgent application let alone ...
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HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

It is apparent from the history of the suit that Steelnet (Zimbabwe) (Pvt) Ltd and BMA Fasteners (Pvt) Ltd, through its Managing Director, Erick Makarimayi, were acting in connivance in abusing court process. They filed a hopeless urgent chamber application to stay execution of a judgment against BMA Fasteners (Pvt) Ltd on spurious legal grounds. ...
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HH48-14 : WINSLEY MILITALA N.O. and QV PHARMACIES PRIVATE LIMITED (Under Provisional Judicial Management) vs MUTUAL FINANCE PRIVATE LIMITED and MESSENGER OF COURT and SHINGIRAI USHEWOKUNZE
Ruled By: CHIGUMBA J

Counsel for the third respondent contended that the court ought to order costs de bonis propriis against the applicant's counsel of record for causing embarrassment to a fellow officer of the court. I am not persuaded that Mr. Mlotshwa's motives in citing Mr. Ushewokunze in his personal capacity were purely malicious or entirely baseless. However, ...
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HH180-14 : 1. KENIAS MUTYASIRA and 2. BARBRA GONYORA N.O. vs 1. BARBRA GONYORA NO and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF COMPANIES and 2. KENIAS MUTYASIRA and LINAH GONYORA and OTHERS
Ruled By: MAWADZE J

I now deal with the aspect of costs in respect of both matters. The first respondent has asked for costs, not only on the attorney and client scale, but also de bonis propriis against the applicant in her personal capacity and her legal practitioner. No meaningful submissions were made by the applicant in both matters in ...
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HH118-13 : MUNANDI ARCDEL & D-TROOP EMPLOYEES vs MUNANDI – ARCDEL & D-TROOP
Ruled By: BERE J

On costs, there is need for the court to discourage individuals from indulging in spurious or vexatious litigation. Clemence Mudzengerere had all the opportunity to properly justify his status as a litigant. He has not taken heed of the flashing signs before him and for that he must bear the brand for costs - though ...
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HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

COSTS Counsel for the respondents, by letter of the 18th November 2011, advised the applicant's legal practitioners to withdraw their Review Application with a threat for punitive costs de bonis propiis in the event of them not complying. Unfortunately, the applicants' legal practitioners, in their wisdom or lack of it, were not persuaded. They persisted with ...
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HH322-14 : J.L ROBINSON AGENCIES (PVT) LTD t/a AMALGAMATED MOTOR CORPORATION vs DANFORD CHAMWARURA and THE SHERIFF OF ZIMBABWE
Ruled By: MUREMBA J

This is a case where if the applicant had asked for costs de bonis propiis against the first respondent's legal practitioner I would have granted them without any hesitation.
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HH566-14 : TAWADZERA ZISHIRI and SHIRELLA PETERS and ANDRA NYANDEBVU and VIOLET CHATINDO and OTHERS vs STREAMSLEIGH INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

The first respondent has asked that costs be awarded against the applicant's legal practitioner de bonis propriis on a punitive scale. While I agree that the application itself is specularly without merit I am not persuaded that the costs should be for the account of the legal practitioner. The applicants have made their bed and should ...
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SC19-15 : FEXEN MPANSI and EDWARD DUBE and JABULANI DUBE and VINCENT DUBE and THOMAS MPANSI vs MORGAN DUBE and THE MASTER OF THE HIGH COURT and WILBERT NYAMUFUKUDZA N.O.
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

This is an application for the correction or variation of the order issued by the Supreme Court under SC161/09 on 16 July 2011 allowing the appeal by the applicants (then appellants), on the basis that the order is ambiguous. The application was filed under the same case number as the original appeal. The impugned ...
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Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

The respondent seeks not merely costs on the higher scale, but has also urged this court to order that Messrs Kawonde Company Legal Practitioners bear such costs de bonis propriis. It is settled that such costs are awarded against a legal practitioner as an exceptional measure and in order to penalise him ...
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SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O.
Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

1….,. 2. The appellant shall pay to Core Mining and Mineral Resources (Pty) Ltd (In Liquidation) as represented by Mtetwa and Nyambirai Legal Practitioners the costs of this appeal on the legal practitioner-client scale.
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SC65-17 : GEORGE ZAWAIRA and ANNA ZAWAIRA and JOSEPH ZAWAIRA and TENDAYI ZAWAIRA and OTHERS vs ROBERT ZAWAIRA and W. NYAMUPFUKUDZA and THE MASTER OF THE HIGH COURT
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

The appellants maintained these proceedings largely on the basis of the opinion of the second respondent, who, together with the third respondent chose not to oppose this appeal but to abide the Court's decision, that sections 3 and 3A of the Deceased Estates Succession Act and section 10 of the Deceased Persons Family Maintenance Act ...
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HH30-15 : MANPAC (PRIVATE) LIMITED vs PEOPLE'S OWN SAVINGS BANK and THE SHERIFF OF ZIMBABWE
Ruled By: DUBE J

The respondent has asked for an order of costs de bonis propriis against Mr Machiridza. An order of costs de bonis propriis is awarded only in reasonably serious cases. See Waar v Louw 1977 (9) SA 225; Mahlangu v De Jager 2000 (3) SA 145. Such an order is awarded in exceptional circumstances ...
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HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

With regards to costs, the dispute in this case involves a property which is registered in the name of a deceased estate. In normal circumstances, the costs would have been borne by the estate. However, in my view, in this case, such an order will unnecessarily burden the estate.
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HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA
Ruled By: MATHONSI J

It remains for me to deal with the issue of costs. Legal practitioners have been repeatedly warned against dishonourable conduct and preparing court papers dishonestly in an attempt to pull the wool over the court's eye. Legal practitioners who saddle the courts with such dishonest applications will not only be visited with costs de bonis propriis but also with ...
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HB111-16 : KURONDA SAFARIS (PVT) LTD vs AMANDA WATSON and THE SHERIFF OF ZIMBABWE
Ruled By: MATHONSI J

It remains for me to deal with the issue of costs. I agree with counsel for the first respondent that if the applicant wanted the release of goods under attachment it had to proceed in terms of Rule 336 and provide security. As it is, this application is hopeless having been made by someone desiring to ...
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HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

COSTS The plaintiff has succeeded in her suit. It would be inequitable to order the estate to meet the costs of the parties in the light of the perverse conduct of the first and second defendants in the administration of the estate. Rather, the two defendants will be ordered to meet the plaintiff's costs, jointly and ...
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SC39-12 : MM PRETORIUS (PVT) LTD and JOSEPH GONCLAVES vs CHAMUNORWA CHARLES MUTYAMBIZI
Ruled By: ZIYAMBI JA

The blame for the defects in the application must rest solely on the shoulders of Mr Harvey, the applicants' legal practitioner. He will be ordered to bear the costs personally….,. 1….,. 2. The costs shall be paid by the applicants' legal practitioner, Mr Roy Harvey, personally.
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HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

In reading the founding affidavit, one got the impression that the applicant's legal practitioner was oblivious of this court's warnings on the use of impolite, arrogant, and intemperate language in court documents. See Nyandoro v Sithole Others 1999 (2) ZLR 353. The language of abuse and intolerance we subject each other to in our social interaction should not be ...
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HH97-15 : RESERVE BANK OF ZIMBABWE vs ALLIED BANK LIMITED and UNILIVER SOUTH EAST AFRICA PENSION FUND and MESSENGER OF COURT, HARARE
Ruled By: CHATUKUTA J

Counsel for the third respondent submitted that as the Messenger of Court was executing an order of court there was no basis for the court to make an award for costs against him. She further submitted that she did not have instruction to consent to any order for costs against the third respondent. The only outstanding issue which ...
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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

I have tossed with the idea of costs de bonis propriis but I have decided not to award them because the belated arrival at the scene of Ms Dube was able to bestow a semblance of respectability in the defendants camp which was in disarray.
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HH78-14 : HUGHBER PETROLEUM (PVT) LTD and HUBERT NYAMBUYA vs BRENT OIL AFRICA (PTY) LTD
Ruled By: MATHONSI J

These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court. Courts of law have a duty, not only to conduct their affairs in a dignified and transparent manner in dispensing justice, but also to protect their ...
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HH292-16 : HUBERT NYAMBUYA and HUGHBER PETROLEUM (PVT) LTD vs BRENT OIL AFRICA (PROPRIETARY) LTD
Ruled By: TAGU J

I will now turn to deal with the issue of costs. The respondents submitted that the present application amounts to a gross abuse of legal process and ought to be sanctioned with an order of costs de bonis propriis against Tawanda Law Practice. They asked that the copy of the order made by this Honourable Court be served ...
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HB235-16 : ESTATE LATE MOSES KANHUKAMWE (represented by Winnie Mudzinganyama curator bonis) vs CBZ BANK LTD and I.Q. MARKETING (PVT) LTD and THE ADDITIONAL SHERIFF – BULAWAYO
Ruled By: TAKUVA J

Counsel for the first respondent submitted that while he was not opposed to the application, he prayed for an order of costs on the executor for the following reasons: (a) Although summons were issued after Moses Kanhukamwe had died, his treacherous son Idon Kanhukamwe did not reveal this information when he entered appearance to defend. (b) Moses Kanhukamwe died ...
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HB241-16 : FRANCIS MOYO vs COMMISSIONER GENERAL OF POLICE N.O. and SUPERITENDENT NYAMAROPA N.O. and CO-MINISTER OF HOME AFFAIRS N.O.
Ruled By: TAKUVA J

The second respondent acted out of ignorance. I say so because if he knew of the correct position of the law he would not have displayed his ignorance in writing. However, I should sound a warning to trial officers that they should seek proper legal advice from their legal division when in doubt. Failure to conduct proceedings ...
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HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

There is little doubt that there was an attempt to pull the wool over the court's eye which conduct should be frowned upon. This is particularly so when the applicant is represented by counsel who is an officer of this court….,. There is need for admonition because such abuse cannot be allowed to perpetuate in our courts. Legal practitioners ...
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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:“1. An order declaring that:(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing ...
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HH192-15 : JAMILA MOKBEL vs HASSAN MOKBEL
Ruled By: UCHENA J

Counsel for the respondent submitted that the application should be dismissed with costs de bonis propiis because this court does not have jurisdiction to hear this application and this was brought to the applicant and his legal practitioners through the respondent's opposing affidavit. It is not correct that this court does not have jurisdiction, as it can, subject to ...
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HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

The applicant sought an order for costs de boniis propriis against the legal practice of Venturas Samukange as they should have known that the respondents do not have a defence but proceeded, that notwithstanding, to file what the applicant has called “a bogus defence.” I have not acceded to that application because it would appear ...
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SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

In his heads of argument, counsel for the respondent asked for costs de bonis propriis on the higher scale against the appellant's legal practitioners. At the hearing of the appeal he did not motivate costs of that nature. This Court is unable to find any basis for awarding such costs ...
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HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

Before spelling out the order of this Court, I am constrained to register my deep concern about the quality of counsel for the defendants legal representation of the defendants. Quite apart from his unhelpful and shabby performance in court, his closing submissions qualify as the most appalling that I have ...
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SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration ...
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HH688-15 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA and LALAPANZI PROPERTIES PL and FRANK BUYANGA and REGISTRAR OF DEEDS N.O. and GILDASTONE HOLDINGS PL
Ruled By: CHITAKUNYE J

This is an application for the setting aside of a default judgement obtained by the first respondent in HC2469/13 which had the effect of cancelling the applicant's title deeds to certain immovable property registered in his name.The applicant was not a party to the default judgement but its provisions affected ...
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HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

Counsel for the respondents sought costs on the legal practitioner and client scale against the appellant, the appearing legal practitioner, and the instructing law firm.He submitted that the same issue has been before GUVAVA J as an urgent application instead of an appeal because of the appellant's legal practitioner's failure ...
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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, ...
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HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

Turning to the question of costs, the fourth respondent has applied for costs on the higher scale and against the executor bonis or dative as the case maybe, being Oliver Masomera.Costs are in the discretion of the court, albeit, the general rule being that costs follow the result.Counsel for the ...
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HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

This is a matter in which I would have considered awarding costs against Norman Mugiya de bonis propriis if the respondents had appeared.However, although I had directed the applicant to serve the notice of set down upon the respondents owing to the exigency of the application, which was filed a ...
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HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.The purported urgent chamber application was not only bad in many respects, it was incurably bad.What I was particularly concerned ...
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