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Pleadings re: Withdrawal of Pleadings, Admissions, Proceedings or Claims

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

The plaintiff is a self employed male adult. The first defendant is employed by the second defendant as a Marketing Assistant. The second defendant is a company duly incorporated with limited liability according to the laws of Zimbabwe. At all material times, the plaintiff was the owner of a Nissan Sunny FB15 motor vehicle registration no. AAP 1693. ...
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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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HH53-09 : ZIMBABWE ALLIED GROUP LTD vs MILDRED AND MATHIAS (PVT) LTD
Ruled By: MAKONI J

Litigants, and legal practitioners in particular, must bear in mind that litigation is not a battle of wits whereby they strive to outwit each other. They should know that the object of the litigation is to do justice. I can do no better than to quote WESSELS J in Whittaker v Ross Anor 1911 ...
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HH13-12 : YVONNE CHISESE vs ALLUVIAL EXPLORATION SERVICES (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

In terms of Order 33 Rule 5(1) of the Magistrates Court Rules (Civil Rules, 1980): “The withdrawal or dismissal of an action or a decree of absolution from the instance shall not be a defence to any subsequent action.”
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HB116-09 : EDWARD MANGENA and MALAKI MPOFU vs NINNO FILANNINO and FIVE OTHERS
Ruled By: NDOU J

Thereafter, the parties' legal practitioners of record approached CHEDA J on 19 June 2009. It was apparently agreed that the matter be heard on 6 July 2009. So the matter was set down for hearing. On 1 July 2009, the applicants legal practitioner filed a letter saying they intended withdrawing the main application under HC197/07. Initially the ...
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HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

Following that development, first and second defendants then applied for an order cancelling transfer of the property to the plaintiff, and directing him to transfer the property to them. That application was withdrawn by consent, and the first and second defendants agreed to pay the costs.
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HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.The applicants challenge the validity ...
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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

This is an exception with an exception. The application was partly argued before me, and prior to the resumed hearing it was withdrawn without a tender of costs. The issue of costs was then raised for my determination. For a full appreciation of the nature of the dispute before me, it is, in my view, necessary ...
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HH81-10 : MILRITE FARMING (PRIVATE ) LIMITED vs ENOCK PORUSINGAZI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and FOUR OTHERS
Ruled By: UCHENA J

In spite of the above concessions, counsel for the applicant did not withdraw the application because he did not have his client's instructions to withdraw it. Counsel for the applicant correctly balanced his duty to the court with his duty to his client by not withdrawing the application – even though it's one that should have ...
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SC09-14 : MARANGE APOSTOLIC CHURCH OF ST JOHANNE and ISRAEL RUWOKO vs CLEMENCE MOMBERUME
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

This is an appeal against the decision of the High Court Harare, in HC11782/2011, which was handed down on 15 May 2013. The background to the dispute is that the respondent instituted court action in 2005 against the first appellant and two others for, inter alia, the return of certain church goods and regalia. On 13 ...
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HB63-10 : SALLY MAPLANKA vs B. A. NCUBE HOLDINGS
Ruled By: NDOU J

At the commencement of this hearing the issue 2.2…, was withdrawn by consent.
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HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

During the course of the pleadings, the first plaintiff has, procedurally, remained the sole plaintiff after Cain Moyo, who was the second plaintiff, withdrew his claim and opted to abide by the court's order.
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HH06-13 : THE MESSENGER OF COURT (HARARE) vs TAVENHAVE-MACHINGAUTA LEGAL PRACTITIONERS
Ruled By: MTSHIYA J

On 16 February 2012, the applicant filed a notice of withdrawal in respect of Manase and Manase Legal Practitioners. This also led to a formal withdrawal of their notice of appearance on 20 February 2012.
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HH30-13 : BRIAN MUNEKA and DADIRAI RWANZA and JANIES TIMOTHY and EDMOND MULEYA and MUSEKIWA MUZANENHAMO and TSITSI DHLIWAYO vs MANICA BUS COMPANY
Ruled By: MTSHIYA J

Notwithstanding settlement with its other former employees, the respondent did not withdraw its opposition to this application.
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HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS
Ruled By: MATHONSI J

Although it had cited the third defendant alleging that it was also liable as the insurer of the second defendant, the plaintiff subsequently withdrew the claim against the third defendant.
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HH117-13 : SUNBEACH PROPERTIES (PRIVATE) LIMITED vs NATIONAL SOCIAL SECURITY AUTHORITY and REGISTRAR OF DEEDS
Ruled By: MUSAKWA J

Initially, the plaintiff had sued Total Zimbabwe (Private) Limited but, in due course, the claim against Total Zimbabwe (Private) Limited was withdrawn.
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HH370-13 : BENJAMIN JENGWA and GEORGE MUSHIPE and AUGUSTINE MANYAU vs ZIMBABWE TEACHERS ASSOCIATION (ZIMTA)
Ruled By: MATANDA-MOYO J

Counsel for the applicants withdrew the application after conceding that the order sought had been overtaken by events. The application sought to bar the respondent from conducting Zimbabwe Teachers Association (ZIMTA) national elections which ran from 22 – 25 April 2005 in Victoria Falls. The application was heard on 17 October 2013 well after such ...
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HB09-13 : ELLEN MBUVAH and MINING INDUSTRY PENSION FUND and NATIONAL RAILWAYS OF ZIM and OTHERS vs JAMES MANGACHENA & ANOR and DR ZIWAI MANESWA and DISHAI MARKETING & MERCHANDISING (PVT) LTD and OTHERS
Ruled By: CHEDA AJ

I made an order in motion court that the above matters be removed from the roll and said the reasons would follow. These are they.
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HB38-11 : JONATHAN NATHANIEL MOYO vs JOHN LANDA NKOMO and DUMISO DABENGWA
Ruled By: BERE J

The second development was the determination of the second defendant's costs of suit as a result of the withdrawal of the suit against him by the plaintiff….,. The second defendant's costs For some reason, after the second defendant had just opened his case, and when he was in the middle of giving his evidence in ...
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HH125-11 : ECONET WIRELESS (PRIVATE) LIMITED vs RENAISSANCE FINANCIAL HOLDINGS LIMITED and RENAISSANCE MERCHANT BANK CORPORATION
Ruled By: MAVANGIRA J

In addition, counsel for the respondents submitted that the front page of the Herald of Friday 3 June 2011 reported on the placing of the second respondent under curatorship, yet the application was still filed without the court being advised that circumstances had changed….,. As the second respondent is now under a curator, there ...
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HB08-14 : JONATHAN MOYO vs ROSELINE NKOMO
Ruled By: MAKONESE J

The applicant was a candidate for the National Assembly seat for Tsholotsho North constituency in Matabeleland North Province in the Harmonised General Elections held on 31st July 2013 as a nominee of ZANU (PF). The respondent was declared winner of the National Assembly election in respect of the said constituency. ...
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SC63-14 : UNITED REFINERIES LIMITED vs MINING INDUSTRY PENSION FUND and REGISTRAR OF DEEDS and ERROL S. WOLHUTTER and AUSTIN J. SIBANDA t/a JOEL PINCUS KONSON AND WOLHUTTER
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

Most pertinent to the application was the finding by the court that the appellant sought, through the supplementary affidavit, to withdraw admissions that had been made in the opposing affidavit. The court stated the following: “…,. The applicant seeks to introduce evidence by way of a supplementary affidavit to the effect that this arrangement was ...
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CC10-16 : EVERJOY MEDA vs MAXWELL SIBANDA and ZAMBE GWASIRA and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

At the end of hearing argument for both parties, the Court dismissed the application with costs on the legal practitioner and client scale. It was indicated that reasons for the decision would follow in due course. These are they. The applicant approached the Court in terms of section 85(1)(a) of the Constitution of the ...
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CC10-15 : PROSECUTOR GENERAL, ZIMBABWE vs TELECEL ZIMBABWE (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GOWORA JCC, GUVAVA JCC, MAVANGIRA AJCC, CHIWESHE AJCC, MAKONI AJCC, BHUNU AJCC

In light of these concessions, counsel for the applicant belatedly sought to withdraw the matter. The court ruled against him and proceeded to hear argument on the question of costs…,.
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HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

I must state that the applicant filed a notice of withdrawal of the application against the second respondent who is said to be a Consultant engaged by the first respondent to analyse baryte deposits found at the prospective mine.
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CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

WHETHER THE WITHDRAWAL OF THE MATTER WAS VALID The case of Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC) is authority for the principle that a party cannot withdraw at will a matter that has been set down for hearing. The party intending to withdraw the matter must obtain the consent of the other party and the ...
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HH467-16 : ALBAN GERALD BOWERS vs SHARIFFA PRESIOUS BOWERS
Ruled By: CHITAKUNYE J

Rule 189, which deals with the withdrawal of admissions, provides that:- “The court may, at any time, allow any party to amend or withdraw any admissions so made on such terms as may be just.” In D D Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)…, GUBBAY JA…, had this to say on the test ...
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HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP
Ruled By: CHIGUMBA J

The following issues were referred to trial in the main matter: 1. Whether the current proceedings can be proceeded with despite the pending nature and the non-conclusion of proceedings in HC4221-08?…,. At the hearing of the matter, a Notice of Withdrawal was tendered, dated 25 January 2016, in terms of which the plaintiff withdrew its action in case ...
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HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: CHIGUMBA J

The interim interdict was withdrawn by the applicants before its confirmation.
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HH101-15 : MICHAEL LESLIE MITCHELL STUBBS vs RENE STUBBS (nee DU PLOOY)
Ruled By: UCHENA J

A consent paper signed by the parties after they will have made admissions at the pre-trial conference, as happened in this case, is a compromise agreement which embodies admissions which cannot be withdrawn without complying with Order 27 Rule 189 of the High Court Rules 1971, which provides as follows; “The court may, at any time, allow ...
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HH468-18 : KETHIWE VAN DER SANDEN vs ROBERTUS ANTOINE W. VAN DER SANDEN and ROY MASAMBA and REGISTRAR OF DEEDS N.O.
Ruled By: CHIRAWU-MUGOMBA J

At the hearing of this matter, the applicant's legal practitioner attempted to withdraw the application against the first respondent after the realization that there was essentially no remedy sought against him since he had disposed of the property. I pointed out to counsel for the applicant that, procedurally, it was not proper to withdraw a matter that had ...
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CC05-19 : MISHECK MUZA vs REGGY SARUCHERA (as liquidator of J.W. Jaggers Wholesalers PL) and PRICE TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MALABA CJ and PATEL JCC and GUVAVA JCC

Counsel for the second respondent submitted that it was important to take note of the legal effects of a withdrawal. He submitted that the withdrawal of a matter is the end of it and no appeal can be made attacking that withdrawal….,. The decision to withdraw a matter from a court's roll is a personal one, contrary ...
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HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

In Patterson Timba v Reggie Saruchera N.O. and Others HH461-15…, I stated the following; “In dealing with the issue of costs on withdrawal of proceedings specifically, AC CILLIERS in the Law of Costs, 2nd ed p121 had this to say: 'Where a litigant withdraws an action or in effect withdraws it, very strong reasons must exist why a defendant ...
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HH461-15 : PATTERSON TIMBA vs REGGIE SARUCHERA N.O. and RESERVES BANK OF ZIMBABWE and NATIONAL SOCIAL SECURITY AUTHORITY and RENNAISSANCE FINANCIAL HOLDINGS LTD and RENAISSANCE MERCHANT BANK LTD
Ruled By: MAKONI J

In dealing with the issue of costs on withdrawal of proceedings specifically, AC CILLIERS in the Law of Costs, 2nd ed…, had this to say: “Where a litigant withdraws an action or in effect withdraws it, very strong reasons must exist why a defendant or respondent should not be entitled to his costs. A plaintiff or applicant who withdraws his ...
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CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

Seven days after the declaration, on 3 August 2013, of the results of the Presidential election (hereinafter referred to as “the election”) held on 31 July 2013, showing Robert Gabriel Mugabe (hereinafter referred to as “the first respondent”) as the winner of the election, Morgan Tsvangirai (hereinafter referred to as ...
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HH56-17 : MANGWIRO SIBANDA vs JANE H. CHIKUMBA and ALTFIN INSURANCE COMPANY
Ruled By: MATANDA-MOYO J

The plaintiff instituted proceedings against the defendants, jointly and severally, the one paying the other to be absolved for the following relief; 1. Payment of the sum of $3,700= being costs of repairs to the plaintiff's sprinter vehicle registration number AAQ 5021 which was damaged due to a collision solely caused by the first defendant. The other vehicle ...
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HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017. The examinations are managed by the second respondent, a body corporate duly established by and in terms of section 3 of the Zimbabwe School Examinations Council Act [Chapter 25:18].The results for the November 2017 ...
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Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null ...
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Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...
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HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

The plaintiff issued summons against the defendants claiming payment of US$13,868=90 for car rental charges due to the plaintiff and interest thereon at the rate of 3.5% from 1 April 2016 to date of full payment.The undisputed facts are that the first defendant entered into a car hire agreement with ...
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HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP
Ruled By: CHIKOWERO J

At the hearing, the respondent withdrew its opposition to the filing of the answering affidavit. The respondent's heads of argument had taken issue with such filing.
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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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HHH74-18 : THE PROSECUTOR GENERAL OF ZIMBABWE vs SHMUEL KLEIN
Ruled By: CHITAPI J and MUSHORE J

In this appeal, the Prosecutor General, pursuant to an order for leave to appeal having been granted by a judge of this court on 19 August 2014, noted an appeal against the acquittal of the respondent by the Regional Magistrate Eastern Division on 26 April, 2012.The respondent, then a 58 ...
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SC52-18 : INNSCOR AFRICA LIMITED and GERIBRAN SERVICES (PRIVATE) LIMITED vs COMPETITION AND TARIFF COMMISSION
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

This is an appeal against the judgment of the High Court holding that a conglomerate is a “merger” as defined in terms of section 2 of the Competition Act [Chapter 14:28] (“the Act”), and, therefore, notifiable to the respondent in terms of section 3A of the Competition Act if its ...
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HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

This was an urgent chamber application for a stay of execution.It was filed on 6 March 2015. It was brought to my chambers at 17:15 hours three days later, i.e. on 9 March 2015. There were eleven applicants. Their case was that on 6 March 2015, i.e. the date the ...
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CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).The applicant intends to file the substantive application with the Constitutional Court in terms of section 85(1)(a) of the ...
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HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:(1) That the President of the Apostolic Faith Mission of Africa International is Reverend ...
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HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J

Following certain concerns that I had raised on the form and content of the urgent chamber application herein, the applicant decided to withdraw it. However, it insisted that each party should bear their own costs. On the other hand, the respondent insisted not only on its costs, but also that ...
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HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...
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HH365-13 : LYDIA MAURO (NEE) NYAMBO vs REGIS MAURO
Ruled By: UCHENA J

The parties, at their pre-trial conference, agreed on all issues except the distribution of their immovable properties, namely, the matrimonial home at Stand No.293 Vainona Township of Vainona and Stand No.3505 Dhonza Close, Budiriro 2, Harare and a generator. In her claim, the plaintiff wants the immovable property to be sold and shared equally when ...
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