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Specific Performance re: Triable Issues

HH41-08 : ZODELLA ENTERPRISES (PVT) LIMITED vs LUXMORE NDENDA
Ruled By: GOWORA J

At the commencement of the trial the parties agreed to some of the issues agreed to at the pre-trial conference and captured in a joint pre-trial conference minute filed by them. The only issues left for determination at the trial were the following therefore: (a) What were the material terms of the verbal agreement between the parties? (b) Whether ...
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HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE
Ruled By: HUNGWE J

At the pre-trial conference, the parties agreed that the issues for determination were; (a) Which agreement, between the two, should be upheld; (b) Whether the third defendant's agreement with the two wives was cancelled for breach; (c) Whether the plaintiff is a bona fide purchaser; and (d) What an appropriate order should be.
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HH07-09 : CATHERINE CHIWAWA vs APOSTOLOS MUTZURIS and PANAYOTA MUTZURIS and GRAMMATIKI MUZTURIS and IRENE MUTZURIS and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

At the pre-trial conference of the matter, four issues were identified as being the issues for trial. These were: 1. Whether the plaintiff's claim has prescribed; 2. Whether or not an Agreement of Sale was entered into between the plaintiff and the defendants; 3. Whether the Agreement of Sale, if any, was cancelled by reason of the plaintiff accepting a refund ...
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HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

At the pre-trial conference, the issues were viewed as; “1. The interpretation of clause 1 of the contractual document. It being admitted that plaintiff paid its premium on 25 February 2004; and 2. The quantum of damages.” After hearing evidence from the witnesses, it was apparent that the parties were not agreed that the premium was paid on 25 ...
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HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

In view of the different positions taken by the parties, it was agreed that the issues for determination in this trial would be:-“(1) What were the terms of the Agreement between the parties?(2) Whether it was agreed, as between the parties, that the defendant would supply the computers upon receiving ...
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HH96-09 : RESMOND KATSANDE vs RUMANI REAL ESTATE (PVT) LTD AND FAIRWEST REAL ESTATE (PVT)
Ruled By: MAKARAU JP

The facts of this application are largely common cause..., . I summarize the facts as follows:In or about October 2008, the second respondent, as the estate agent, advertised certain stands for sale on behalf of the first respondent, the seller. The applicant, as purchaser, responded to the advertisement, and identified one stand for purchase.He was advised as ...
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HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

At the pre-trial conference that was held on 1 July 2009, the matter was referred to trial on the issues set out in the defendant's minute of 20 May 2009. The issues for determination are as follows: 1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth. 2. Whether the plaintiff should cede ...
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HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were; (a) Whether the plaintiff is owed the outstanding items of furniture; and (b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.
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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

At a pre-trial conference held on 3 July 2007, before a judge in chambers, the first, third and fourth defendants did not appear; they were held to be in default. The matter was thus referred to trial against the fifth defendant only on the following issues: 1. Whether or not the plaintiff validly and lawfully purchased ...
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HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The issues for determination were essentially three, namely:-(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.(3) If so, who ...
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HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JP

On the basis of the…, evidence, it appears to me that three issues arise; (i) Firstly, I have to determine what the terms of the agreement between the parties were. (ii) Secondly, and only after I have ascertained the terms of the agreement, I have to determine whether the defendant breached a material term of such agreement entitling ...
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HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

The agreed issues for determination herein are as follows: (a) What terms and conditions were agreed to or can be implied from the contract concluded between the parties? (b) Whether the defendant is liable for specific performance in terms of the contract. (c) What amount of compensation, if any, is the defendant liable to pay to the plaintiff?
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HB37-09 : MARGRET CAROL COLER vs MAXWEL SHUMBA
Ruled By: KAMOCHA J

When the parties in this matter attended a pre-trial conference, they agreed that the following issues should be determined by the trial court - “(a) Whether or not there was a valid cancellation of agreement of sale between the parties. (b) Whether or not there was novation of the original agreement of sale warranting validation of the agreement ...
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Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The plaintiff in this matter seeks:-“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;2. An order to compel the first defendant to ...
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HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The matter proceeded to a pre-trial conference where four issues were settled for trial. I will paraphrase the issues as follows - 1. Whether the second plaintiff should be a party to the proceedings? 2. Whether the contract of the loan was between the plaintiffs and KMC Limited (a company registered and domiciled in the Republic of ...
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HH25-10 : MAXWELL MATSVIMBO SIBANDA vs GWYNNE ANNE STEVENSON
Ruled By: CHITAKUNYE J

A total of fourteen issues were identified for trial. The first six of these issues, which I believe reflect the core of the dispute, included the following - 1. Was the purchase price 180,000= British Pounds or the Zimbabwean dollar equivalent thereof? 2. What did each party intend the purchase price to be – 180,000= British Pounds or the ...
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HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

The Legality or otherwise of the Agreement Flowing from the findings of the court, the inevitable question that cannot avoid scrutiny is whether or not the Agreement entered into by the plaintiff and the defendant was legal. This issue assumes dominant consideration because of the conflicting positions adopted by the respective legal counsels for both the plaintiff ...
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HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

ISSUES FOR DETERMINATION At the pre-trial conference held by the parties on 12 June 2009, the parties jointly agreed on the following issues as the basis for the referral of this matter for trial:- (1) Whether or not Mr. Muzondiwa authorized the alteration of tank specifications, and, if so, whether or not he was acting as the ...
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HH149-10 : FOOLPROOF ENTERPRISES (PRIVATE) LIMITED vs SURFACE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

At the pre-trial conference that was held on 27 May 2010 the issue that was referred to trial was whether the product delivered by the plaintiff in fulfilment of the contract was fit for the purposes for which it was meant.
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HH161-10 : NEVER BVOCHORA vs DOUGLAS TOGARASEI MWONZORA (In his capacity as The executor Dative of the Estate Late I.V. Rukatya)
Ruled By: HUNGWE J

The parties, on 18 November 2008, appeared before UCHENA J in a pre-trial conference. They were represented by counsel. The matter was referred to trial on four broad issues, namely – (a) Whether the plaintiff breached the initial Agreement of Sale; (b) Whether the initial Agreement of Sale was cancelled by the defendant; (c) Whether the defendant offered the ...
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HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-“(a) Payment of the sum of US$750,000.(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.(c) Costs of suit.”The background to ...
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HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

The issues for determination, as agreed at the pre-trial conference, were:- 1. Whether or not the repairs to the plaintiff's motor vehicle were effected in full, and, if not, why? 2. Whether or not the defendant should be ordered to complete the repairs or to pay to the plaintiff the costs of the repairs.
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HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

With all attempts at settlement having failed, the parties, on 28 October 2009, had already agreed at a pre-trial conference that the issues for trial would be as follows - “1.1. Did Reserve Bank of Zimbabwe's actions of appropriating proceeds of defendant's exports amount to supervening impossibility? 1.2. Whether the defendant is indebted to the plaintiff in ...
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HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

The following issues were referred for determination at trial: “1. Whether Denrose Agent was an agent for plaintiff and or defendant. 2. Whether or not the oral agreement was entered into by the first defendant and plaintiff prior to 6th September 2006. 3. Whether or not the oral agreement of sale entered into between the first defendant and plaintiff is ...
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HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

In HC1375/91 the issues for trial were identified as – 1. Whether or not the plaintiff complied with all his obligations under his Agreement of Sale with the first defendant in respect of Stand 13451 Unit N Seke. 2. What, if any, was the impediment to cession of rights from the first defendant to the plaintiff? 3. Whether or not ...
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HH276-10 : DAVID CHIGODORA and NELIA CHIGODORA vs THOMAS C. T RODRIGUES and THOMAS C.T. RODRIGUES (N.O.) and THE REGISTRAR OF DEED and THE MASTER OF THE HIGH COURT and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

The application before me is not a review, nor an appeal against the Master of the High Court's decision(s). The issue before me is to determine whether or not an enforceable or operational contract exists – meriting the grant of an order for specific performance in favour of the applicants. My finding is that the condition ...
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HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

The outcome of the pre-trial conference of 28 July 2010 was the filing of a joint pre-trial conference minute on 28 September 2010 referring nine issues to trial. From the pleadings, evidence and arguments, I perceived that these could be reduced to the following three issues- 1. Whether the parties concluded an Agreement of Sale on ...
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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

When the parties attended a pre-trial conference formulated, by agreement, the following issues to be determined by the trial court:- “(a) Whether the Agreement of Sale entered into by and between the plaintiff and the first and second defendants is valid; (b) Whether the cession of Stand Number 1401 Dingumuzi Township, Plumtree should be set aside; (c) Whether the first ...
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HB80-10 : NAISON CHAGARA GONOUYA vs SHADRECK HUKUIMWE and JUSTICE MUNYAMANA and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J

When the parties attended a pre-trial conference before a judge they agreed on, and formulated, the issues for the trial court as follows:- “(1) Whether plaintiff's claim against 2nd defendant is prescribed in terms of the law. (2) Whether there is an agreement of sale of rights, title and interest in Stand Number 30583 Entumbane, Bulawayo between plaintiff ...
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HB114-10 : MARIA SINGO (Executive Dative of the Estate Late Phillimon Singo) vs ROSE SITHOLE (as the executrix dative of the estate late Ernest Phillip Sithole) and OTHERS
Ruled By: MATHONSI J

The issues for trial now stand as: 1. Whether or not plaintiff's claims in the main and/or in the alternative in HC511/09 are prescribed; 2. Whether or not plaintiff in HC511/09 has locus standi to institute this action; 3. Whether or not the alleged contract, if proved, is void or whether or not it is enforceable; 4. ...
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HH14-13 : JOHN SWAY MUGADZAHWETA vs AZVIRIBASI NENGOMASHA
Ruled By: HUNGWE J

At the pre-trial conference the issues were identified as: (a) Whether the plaintiff paid the defendant the full amount required for the construction of a pre-cast wall around his immovable property. (b) Whether or not the defendant is in breach of the agreement. (c) Whether or not the plaintiff is entitled to restitution, and if so, the quantum ...
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HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED
Ruled By: BERE J

THE ISSUES On 24 November 2008, the parties drew up a joint pre-trial conference which identified the issues for referral of the matter for trial as follows:- 1. Whether the plaintiff and defendant entered into an Agreement of Sale in respect of the fuel and whether Maswere Haulage was party to such an Agreement. 2. Whether the ...
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HH73-13 : SIBONGILE KAZIBONI vs CHAMPION CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MATHONSI J

The issues for trial were agreed at the pre-trial conference of the parties and they are;- 1. Whether the plaintiff paid the deposit and purchase price in full. 2. Whether the plaintiff has failed to pay the interest due on the purchase price. 3. Whether the plaintiff has an obligation, in terms of the Agreement between the parties, ...
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HH147-11 : FANUEL MWAYERA vs MOLLY CHIVIZHE and STANLEY CHIVIZHE and THE REGISTRAR OF DEEDS and GILBERT JONGA
Ruled By: CHITAKUNYE J

The issues for determination were thus identified as:- 1. Did the fourth respondent fulfill his legal obligations in terms of the Agreement of Sale? 2. If so, is the fourth defendant entitled to obtain transfer?
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HH177-11 : J. MAMBARA N.O. (in his capacity as executor dative of the estate of the late Wilson Madziva) vs CAROLINE KUNAKA and BOBBY MANGODZA and OTHERS
Ruled By: MUTEMA J

The issues that were referred to trial for my resolution are five, viz: 1. Whether the plaintiff purchased the property in question from the second defendant; 2. Whether the Agreement of Sale between the first and second defendants is valid; 3. Whether the first defendant is entitled to evict the plaintiff from the flat in question and all those ...
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HH39-14 : STANLEY MAZORODZE vs MAI KAI DEVELOPMENT TRUST and BENARD MUTANGA and THE REGISTRAROF DEEDS N.O.
Ruled By: TAKUVA J

At the pre-trial conference the parties agreed on what they perceived to be the issues. When trial commenced, all the parties agreed that it was common cause that the plaintiff and the first defendant entered into a Buy Back Agreement. It was also common cause that the first and second defendants did not pay ...
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HB133-11 : NEWMAN MAPFUNDE vs CHRISTOPHER MANGISI and MANGISI AND ASSOCIATES and BULAWAYO CITY COUNCIL and LOUSIA MANGISI
Ruled By: KAMOCHA J

A further agreement was reached, before the trial commenced, that there were only two issues for the determination of the court, namely; “(a) Whether there was a valid contract of sale between the parties in respect of Flat Number 42064/13 Makokoba, Bulawayo; and (b) Whether the 4th defendant has a right to stop the sale or transfer of ...
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HH56-15 : ESTATE LATE FIDELIS CHIWEDZA and OSBURGA NDHLOVU (Executrix Dative) vs LUISA GOMBARUME and POLKA EXECUTOR SERVICES and AFRICA REAL ESTATE and MAKUNIKE & PARTNERS and OTHERS
Ruled By: UCHENA J

The issue to be determined is whether or not the plaintiff bought the house in dispute from the late Paradzayi George Gombarume. The determination of the case hinges on the credibility of the witnesses and the corroboration of their testimonies by documental evidence.
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HB105-16 : MAXWELL SIBANDA vs GAVIN HAYLER and HAROLD HAYLER and MARGARET MEEK and AUDREY BENEDICT and REGISTRAR OF DEEDS N.O. and BULAWAYO CITY COUNCIL
Ruled By: TAKUVA J

At the hearing of this matter, two issues arose for consideration, namely: 1. Whether or not the sixth respondent has locus standi in judicio to oppose the court application in casu? 2. Whether or not the applicant has made a good case for the relief sought?
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HB149-16 : MUNATSI SHOKO vs OLD MUTUAL ZIMBABWE LIMITED
Ruled By: MOYO J

This court has to assess the following pertinent issues; (1) The parties entered into a Retirement Annuity contract which would mature in 2014 with a sum of about ZW$19,704=31 having multiplied about four times to ZW$86,485= over 20 years, that is, the defendant would grow the plaintiff's investment to about four times its value. (2) The plaintiff argues that ...
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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

By the time of the trial, some of the peripheral disputes had fallen away, the parties having streamlined the issues. Those issues were agreed upon as follows: (i) Was the first sale validly cancelled? (ii) If the first sale was not validly cancelled, the parties agreed that the situation would be a double sale proper.
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HH157-14 : CAG FARMS (PVT) LIMITED vs CRISPEN HATIVAGONI and AUDREY HATIVAGONE and DBT PROPERTIES and REGISTRAR OF DEEDS
Ruled By: DUBE J

The issue is whether a valid Agreement of Sale exists between the parties entitling the applicant to specific performance.
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HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: BERE J

At the pre-trial conference held by the two parties before my brother Judge KUDYA the case was referred to trial basically on the following issues: “1. Whether or not there is a valid and binding agreement of sale between Plaintiff and Defendant. 2. If there is a valid Agreement of Sale, did Plaintiff breach the Agreement of Sale such ...
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HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

The issues identified for trial at the pre-trial conference…, were: “1. Whether or not plaintiff was in breach of the contract between him and first defendant. 2. Whether or not the Agreement of Sale between the plaintiff and the first defendant was ever cancelled. 3. Whether or not second defendant is an innocent third party.”
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HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

At the pre-trial conference of the matter, the following issues were identified for trial:1. Is the plaintiff entitled to specific performance, and, on what basis, and in what quantity?2. What were the terms of the facility agreement between the plaintiff and the defendant?3. Whether the defendant received oral or written ...
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HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

Zimbabwe adopted a policy that was dubbed “look east” as a way of combating economic sanctions that were imposed on it by the international community. The “look east” policy encourages a forging of closer business and trade ties with countries in the east as opposed to the west, the traditional ...
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HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: MUREMBA J

The plaintiff issued summons claiming the following:“(i) Payment of the sum of US$119,300 being the remaining balance of the agreed purchase price for one x 20 Tonne Hyundai Excavator, sold and delivered by the plaintiff to the defendant, at its specific instance and request.(ii) Interest at the prescribed rate calculated ...
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