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Pleadings re: Nullity of Proceedings or Acts, Peremptory Provisions & the Doctrines of Strict and Substantial Compliance

HH43-09 : ZIMBABWE OPEN UNIVERSITY vs DR. O MAZOMBWE
Ruled By: HLATSHWAYO J

In the cases of Simross Vintners (Pty) Ltd v Vermeulen, VRG Africa (Pty) Ltd v Walters t/a Trend Litho, Consolidated Credit Corporation (Pty) Ltd v Van der Westhuizen 1978 (1) SA 779, the applicants, in three applications for compulsory sequestration, had used the notice of motion prescribed in Form 2 of the South African Uniform Rules of ...
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SC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE
Ruled By: CHIDYAUSIKUCJ

In this Chamber application, the applicant seeks an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of section 24(1) of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”).In other words, this is an application ...
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HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot. The plaintiff testified and called the evidence of two other witnesses who were her daughter, Eneresi Simon, and an employee of the Epworth Local Board, Cagewell ...
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HH122-09 : EMMANUEL NEMUSESO vs DOROTHY MASHITA and LOVEMORE KATAYI and PAULINE MANDINGO and PANGANAYI MASHITA and INNOCENT WOYO and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS NO
Ruled By: GUVAVA J

In the case of Schiourt v Minister of Justice 1926 AD 99…, INNES CJ held as follows: "It is a fundamental principle of our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only ...
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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

Where an act is a nullity, the innocence or otherwise of the other party to the act is of no assistance at all. This is so because nothing can be built on nothing. In F. Katirawu v D. Katirawu and 3 Others HH58-07 the second respondent had claimed to be an innocent purchaser of rights and interests in ...
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SC02-14 : C vs C (IN CAMERA)
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

The trial in this matter was conducted before the High Court contrary to the clear terms of the order of this Court, dated 21 March 2013, which had directed that the issues of divorce and proprietary interests be dealt with at the same time. The law is clear that an extant order of this Court ...
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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 was married, at customary law, by the late Vito Bhero (the deceased) who died intestate on 15 January 2004. She had five children with the deceased who are now all majors. Prior to the deceased's marriage to the plaintiff he was married to the first defendant in terms of the African Marriages Act. After the ...
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HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he ...
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SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

The Court is of the view that the principle of the effect of a nullity, based on the obiter dictum of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 ALL ER 1169, cannot be used to nullify acts which are permitted and given effect by a separate law from that which created the ...
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SC61-18 : ILASHA MINING (PRIVATE) LIMITED vs YATAKALA TRADING (PRIVATE) LIMITED t/a VIKING HARDWARE DISTRIBUTORS
Ruled By: BHUNU JA

The applicant, at paragraph 41 of its founding affidavit, avows that the notice and grounds of appeal filed by its erstwhile legal practitioners are fatally defective. The irony is that it now wants to reinstate the fatally defective notice and grounds of appeal….,. It is trite and a matter of elementary law that a fatally defective application ...
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Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

A nullity cannot be reinstated, it is dead at law and hence it cannot be resuscitated by means of an application for re-instatement of an appeal. This point was clearly made in Bindura Municipality v Mugogo SC32-15 where GUVAVA JA stated that: “It however seems to me that the applicant has filed a wrong application. Where a ...
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HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

The second letter of 27 November 2009 was purportedly the cancellation letter. It relied on the first letter. But since there was no evidence that the first letter had been delivered in accordance with the Agreement of Sale, or at all, and since the letter was, in any event, not the notice of breach required ...
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HH278-15 : AUGAR INVESTMENTS OU vs MINISTER OF WATER AND CLIMATE and ENVIROMENTAL MANAGEMENT AUTHORITY
Ruled By: CHIGUMBA J

It was submitted that General Notice 380 of 2013 seeks to rely upon General Notice 313 of 2012 for its validity, and that, for this reason, both General Notices are null and void ab initio. The court was referred to the celebrated case of Jensen v Acavalos 1993 (1) ZLR 216 (SC)…, where the court said that: “In Hattingh v Pienaar 1977 (2) ...
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HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

A court cannot give effect to a patent nullity.
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CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

This is a chamber application for leave to appeal, condonation for late filing of the application for leave to appeal, and exemption from security for the respondents costs.The applicant was formerly employed by the third respondent. Sometime in 2004 he obtained judgment in the Labour Court, awarding him damages for ...
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SC26-18 : T. M. SUPERMARKETS (PRIVATE) LIMITED vs ITAYI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI
Ruled By: GARWE JA, GOWORA JA and BERE AJA

Once the court a quo found that the performance based bonus scheme was illegal, it should not have upheld an order awarding back pay based on an illegal scheme….,. A court cannot lend itself to an illegality. See Dube v Khumalo 1986 (2) ZLR 103; Foroma v Min of Public Construction Anor 1997 (1) ZLR 447 (H). The court a quo failed to ...
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SC20-18 : VENGESAI CHIRASHA vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

Appeal Against Dismissal As regards the second matter, the court below found as follows: “Applicant was initially represented by a (Trade) Union, which withdrew at the last minute, having realized that it had not submitted the grounds of appeal in time. Despite advice by the Union, that the case must not go on because no grounds of appeal ...
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SC01-19 : AFRITRADE INTERNATIONAL LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA

On 8 August 2017, the parties were invited by the Honourable Chief Justice to attend in his chambers concerning the Notice of Appeal. Following a discussion, it was conceded by the applicant that the notice of appeal was defective in two respects. Firstly, the preamble to the notice of appeal did not state whether the ...
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Appealed
SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE
Ruled By: PATEL JA, BHUNU JA and BERE JA

During the course of submissions by counsel, it became apparent that the review proceedings in Case No. HC5385/17 were not actually pending at the time that the urgent chamber application was heard and determined by the court a quo. It was common cause that the decision of the trial officer was made on 29 March 2017. However, ...
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SSC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

As matters stand, the High Court, in my view, went outside the purview of its jurisdictional mandate and determined a bail application that was never before the court a quo, dealing with a supposed appeal that lacked jurisdictional foundation. This renders the basic foundation upon which the appeal was noted shaky. It also affects the ...
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HH487-15 : MR AND MRS CHIMUZA vs OSWALD DZEPASI
Ruled By: MWAYERA J and TAGU J

The appellant approached the court expressing disagreement with the Chinhoyi Magistrate Court judgement wherein the court ordered the appellants to be evicted from House Number 14317 Brundish, Chinhoyi. It is apparent from the record of proceedings that the appellants and the respondent, at different times and for different purchase prices, purchased the house in question from the ...
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HH504-16 : GODFREY CHIPARAUSHE and 60 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND and MR S MTSAMBIWA
Ruled By: MATANDA-MOYO J

The supporting affidavits, as the word “supporting” meaning, entails buttressing a founding affidavit properly before the court. Once the founding affidavit cannot stand so do the supporting affidavits.
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HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC
Ruled By: KUDYA J

This matter raises issues that have been canvassed in such cases as Benson Samudzimu v Dairibord Holdings (Pvt) Ltd HH204-10; Sibangilizwe Dhlodhlo v Deputy Sheriff of Marondera Ors HH76-11; Ericson Mvududu v Agricultural and Development Authority HH286-11; and Gaylord Baudi v Kenmark Builders (Pvt) Ltd HH04-12.In the present ...
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HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

I dealt with this application on 19 February 2018. I delivered an ex tempore judgment in which I dismissed it with costs.On 8 May 2018 the applicant addressed a letter to the High Court Registrar. It did so through its current legal practitioners. It requested for reasons for my decision. ...
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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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SC07-20 : FARAI BWATIKONA ZIZHOU vs THE TAXING OFFICER and RITA MARQUE MBATHA
Ruled By: MAKARAU JA

This is a review of taxation in terms of Rule 56 of the Supreme Court Rules, 2018.The Rule provides that any party aggrieved by the taxation of a bill of costs shall give notice of review setting out his or her grounds of objection. Thereafter, the matter shall be set ...
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HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.I heard the ...
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HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

The applicant is a member of the Movement for Democratic Change [hereinafter “MDC” or 'the party”) having joined the party in 2000. He is also currently the Organising Secretary for the Gokwe Sesame District of the party.The respondents were cited by the applicant as follows;(i) The first respondent is the ...
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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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HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE
Ruled By: MAVANGIRA J

This matter was initially set down for hearing on 11 June 2009 on which date it was postponed to 10 July 2009. It was again postponed a number of times and was finally heard on 3 February 2011 after which date the court called for supplementary heads of argument from ...
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HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

On 10 July 2006, the respondent herein, whom I shall refer to as the plaintiff, issued summons in the Magistrates Court, Harare against the appellant, the defendant, claiming “sharing of property.”Particulars of claim attached to the summons made reference to a customary union which resulted in the establishment of a ...
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SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.The appellant also challenges the jurisdiction ...
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Appealed
SC87-20 : CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.FACTUAL BACKGROUNDThe first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). ...
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HH07-08 : BERLY LYNN SURTEE vs MAHOMMED HASSIN SURTEE
Ruled By: MAKARAU JP and MAVANGIRA J

In..., the court relied on the ordinary rule of law that an order made by a court cannot (except by way of appeal or review in a higher court) be varied except by the court itself.The issue takes on a broader jurispudential dimension as it deals with the relationship between ...
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SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

The first appellant, Firinne Trust, is a trust incorporated as such by Deed of Trust under the laws of Zimbabwe and registered with the Registrar of Deeds. It trades as Veritas, which is the second appellant herein.The first respondent, is the Zimbabwe Electoral Commission (ZEC), established in terms of section ...
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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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SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

On 9 March 2009 the High Court made a spoliation order for the restoration of peaceful and undisturbed possession of Twyford Estate in Chegutu to the applicant at the same time directing the first respondent and all those claiming possession of the property through him to vacate the farm forthwith ...
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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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CC03-15 : BERNARD MANYARA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

The applicant in this matter seeks a permanent stay of prosecution in respect of a charge that arose more than eight (8) years ago. He claims that his right to a fair trial within a reasonable time, as enshrined in section 18(2) of the former Constitution, has been violated.The applicant ...
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SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of ...
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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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Appealed
SC67-14 : JONATHAN MOYO vs ROSELINE NKOMO
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

This is an appeal against the entire judgment of the Electoral Court, Bulawayo, handed down on 31 January 2014.The brief facts of the matter are as follows:The appellant was a candidate for the National Assembly seat for Tsholotsho North Constituency in Matabeleland North Province in the harmonised elections held on ...
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HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.2. Whether the failure to file security for costs timeously renders ...
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HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were;(i) Whether or not the petition was served on time;(ii) Whether there was proper service on the second respondent;(iii) Whether security for costs was provided; and(iv) Whether or not the second respondent was ...
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HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;“FINAL ORDER SOUGHT1. That the stay of execution is hereby granted.2. Respondents shall pay costs of suit on an attorney-client scale.INTERIM RELIEF GRANTED1. The respondents are interdicted to conduct the attachment of the ...
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HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT
Ruled By: CHIGUMBA J

This is a matter in which I was called upon to decide whether section 89(6), as read with section 89(1)(d1) of the Labour Act [Chapter 28:01] ousts the review jurisdiction of the High Court over matters that the Labour Court has exclusive jurisdiction over.The question for determination is whether the ...
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