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Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

On 23 May 2005, the respondent issued summons out of Marondera Magistrates' Court. Her claim against the defendant, as it appears on the face of the summons, is recorded as “sharing property”. An affidavit was attached to the summons, curiously titled, in my view, as “Applicant's supporting affidavit (Property Sharing)”.In ...
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HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE
Ruled By: NDOU J

The issue here is whether the plaintiff complied with Order 35 Rule 272(1) of the High Court Rules, 1971.The salient facts are the following:The plaintiff issued out, at this court, summons incorporating a declaration on 10 June 2011. The summons, together with the plaintiff's declaration, were served on the defendant ...
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HH194-12 : STIRCRAZY INVESTMENTS (PVT) LTD vs A LUCKY BRAND (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

Rule 49 of the High Court Rules, 1971 is peremptory in its application that:- "Within 24 hours of the entry of appearance to defend, written notice shall be served on the plaintiff or its legal practitioners, where he sues by a legal practitioner, at the plaintiff's address of service. Such notice shall be in Form ...
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HH66-12 : OTILIAH ZULU vs EZRA ZULU
Ruled By: MAWADZE J

This is an opposed application for rescission of an order of divorce granted by this court on 19 May 2011 in case No. HC3037/10. The order sought by the applicant is couched in the following terms; “IT IS ORDERED 1. That the judgment that was issued in default of filing of a plea by the applicant in case Number ...
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HH23-09 : TUVIGARI INVESTMENTS (PRIVATE) LIMITED vs LUCY CHIREMBA (nee Gotora) AND TWO OTHERS
Ruled By: BERE J

This urgent application stems from a default judgment granted by.,. It is clear that following the order of the court the now first respondent proceeded with execution which culminated in her being granted a deed of transfer in respect of the property in question.,. Almost two months after default judgment had been granted against it, the ...
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HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

The applicant is a company with limited liability which purports to own all agricultural equipment and implements and runs farming operations at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in ...
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HH132-09 : PINELONG INVESTMENTS (PVT) LTD vs THOMAS VALLANCE AND PARADDIGM TRUST (PVT) LTD
Ruled By: MAKONI J

The first respondent entered an appearance to defend, for himself and on behalf of the second respondent, on 6 August 2008. He did not serve the notice on the applicant's legal practitioners. On the morning of 14 August 2008, the applicant filed an application for default judgment. On 2 September 2008, the application was returned with a ...
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HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:“IT IS ORDERED THAT:1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody ...
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HH50-10 : TAZVITYA ARTHAR MUTANDWA vs SILVER ZHUWAKE and BRENDA CAROL LEEPER and THE DEPUTY SHERIFF and THE REGISTRAR OF DEEDS and ISRAEL GUMUNYU
Ruled By: BUNHU J

The plaintiff sued the first to fifth defendants seeking vacant possession of a certain piece of immovable property known as Stand Number 381 Goodhope Township. The first defendant claims occupation of the disputed property on the basis that he inherited it from his late father, Lovemore Zhuwake. The fifth defendant is the executor in the estate of the ...
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HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

The last point in limine raised by the applicant was that the purported notice of opposition was filed out of time. That was correct. Notwithstanding my decision to allow the first respondent to address the court she too was not properly before the court for the following reasons - 1. The filing of a notice of opposition on her ...
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SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Supreme Court Rules.This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers ...
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HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

Due to constraints of time, the respondents have not as yet filed opposing papers but have advanced their case through a letter of opposition containing various submissions put forward by counsel on their behalf. Counsel for the applicant has no objection to this procedure and the letter of opposition and its contents are accordingly admitted ...
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HB97-11 : NOREEN SIBANDA and BENSON SIYAWAREVA vs JULIUS MPOSELWA NDLOVU
Ruled By: MATHONSI J

In case no. HC303/07 the respondent instituted proceedings against the two applicants in this matter and two others seeking an order for the eviction of the applicants from premises known as 5551 Mkhosana Township Victoria Falls. The action was contested by the applicants.When that matter eventually came for trial, for some reason, the trial ...
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HH275-10 : NOBLE GAPARE vs KAEN W. MOYO and RESIDENT MAGISTRATE, HARARE CIVIL COURTS and MESSENGER OF COURT
Ruled By: MAKONI J

The background facts are that on the morning of the 13th March 2009, the first respondent, counsel for the first respondent, and counsel for the applicant attended court. There is a dispute whether the applicant was in attendance or not. The parties appeared before Magistrate Moyo. The matter was, by consent, postponed to 17 March ...
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HH114-13 : JASSAT, MAHOMED AND ESSOF (PVT) LTD vs OAKVIEW INVESTMENTS (PVT) LTD
Ruled By: ZHOU J

The applicant objected to the opposing papers filed on behalf of the respondent on the ground that the Notice of Opposition is not in Form No.29A as is required in terms of Order 32 Rule 233(1). In terms of Form 29A, the respondent is required to state the date on which the application was ...
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HB127-11 : CHARLES KASTO vs CHENGETAI SITHOLE
Ruled By: NDOU J

The applicant's notice of appearance was not good or proper as it does not comply with Order 7 Rule 49. In terms of Rule 49, a defendant shall, within 24 hours of entry of appearance, serve a written notice on the plaintiff or his legal practitioner. In terms of Rule 50, the defendant shall be deemed ...
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SC48-13 : STANLEY MAJURIRA vs TREDCOR (ZIMBABWE) (PVT) LTD
Ruled By: PATEL JA

VALIDITY OF NOTICE OF OPPOSITION In his answering affidavit, the applicant raises two procedural objections to the respondent's notice of opposition. The first objection is that it should have been filed within three days. It was filed two days out of time and this chamber application must therefore proceed as being unopposed. At the hearing of this ...
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Appealed
HH357-16 : ROBSON MAKONI vs CBZ BANK LIMITED
Ruled By: CHITAKUNYE J

There was no reference of the legal practitioner handling the matter on that notice of appearance to defend.
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HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

In Minister of Higher Tertiary Education v BMA Fasteners (Private) Limited Ors HB42-14 MAKONESE J said:“It is trite law, that, a Chamber Application must comply with the rules governing Chamber Applications. Chamber Applications are provided for by Order 32 Rule 241. Rule 241(2)(sic) states, that, where ...
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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

The act of setting the matter down for hearing puts it under the control of the Court.
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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

There appears to be a misconception among legal practitioners that they can accept or reject a set down date. In our jurisdiction, matters are set down by the Registrar of the court in liaison with the Judge assigned to deal with the matter. That is done in a manner that accords the parties sufficient time to ...
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HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS
Ruled By: DUBE J

This application was lodged in September 2011 and has been pending since then. The applicant is not responsible for the set down of matters.
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CC07-14 : MAYOR LOGISTICS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MALABA DCJ

The principle of equality of treatment requires that a litigant whose case is pending hearing in a court must be subjected to the same procedure as is applied to others for the determination of the question whether his or her case is ready to be set down for hearing by the court. The decision that a case ...
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HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

The applicant has filed an application for maintenance in terms of the Wills Act [Chapter 6:06]. In particular, reliance was placed on the provisions of section 18 of the Wills Act. The relief sought by the applicant in the Draft Order is as follows:“IT IS ORDERED THAT:The estate of the ...
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CC02-19 : ERIZA MUHALA and 50 OTHERS vs PATRICK T. MUKORERA
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

Order 22 Rule 2 subrule 3(b) of the Magistrates' Court Rules provides as follows: “Statement in response to application (1) The respondent may, not less than forty-eight hours before the time stated in such application, deliver a statement in writing in which he either - (a) Consents to the order mentioned in the application; or (b) Opposes the granting of such order. (2) Where ...
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HH281-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

I will start by setting out the factual basis for making that application, which has not been opposed, except on one point…,. I say it has not been opposed on the basis that neither of the respondents presented contrary factual positions to those presented by the applicant.
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CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

EXPUNGING OF PAPERS FILED BY THE FIFTH (NOAH MANYIKA), THE SIXTH (HARRY PETER WILSON), THE SEVENTEENTH (DANIEL SHUMBA), THE EIGHTEENTH (VIOLET MARIYACHA) AND THE TWENTIETH (ELTON MANGOMA) RESPONDENTS FROM THE RECORD On the date of the hearing, the Constitutional Court ruled that the papers filed by the fifth, the sixth, the seventeenth, the eighteenth and the twentieth respondents ...
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HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

The first defendant filed an affidavit solely for the purpose of placing certain pertinent information on record.
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HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS
Ruled By: MUNANGATI-MANONGWA J

It is important for litigants to appreciate the nature of relief being sought in order for an appropriate opposition to be presented. Failure to do so will result in a litigant going on a wild goose chase.
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Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...
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View Appeal
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

Order 32 Rule 233 of the High Court Rules, 1971…, reads as follows:“233. Notice of opposition and opposing affidavits(1) The respondent shall be entitled, within the time given in the court application in accordance with Rule 232, to file a notice of opposition in Form No. 29A, together with one ...
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HH440-19 : INTRATREK ZIMBABWE (PVT) LTD vs ZIMBABWE POWER COMPANY (PVT) LTD
Ruled By: CHITAPI J

In the judgment HH91-19, in the case Blessing Mureyani v Maggie Gentie and Minister of Local Government and National Housing, I bemoaned the increased workload which judges of this court have to deal with and the immense pressure which is exerted on judges to cope with litigants and public expectations ...
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HH604-18 : PUWAYI CHIUTSI and ELLIOT RODGERS vs SHERIFF OF HIGH COURT and ELLIOT RODGERS and REGISTRAR OF DEEDS and BARIADIE INVESTMENTS PL and MC DUFF MADEGA N.O. and PUWAYI CHIUTSI
Ruled By: MATHONSI J

Litigants should not oppose applications as a matter of routine - even when they have nothing to say.
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HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: UCHENA J

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

This matter was set down before me on the unopposed roll. Upon perusing the file I noted that the issue of set down on the unopposed roll was hotly contested by the defendants.Correspondence between the parties shows that the defendants are claiming that they set the matter down in terms ...
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HHH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

The applicant, at the onset of the proceedings, raised two preliminary points.Firstly, he submitted that there was no opposition by the respondents before me. The respondents filed a notice of opposition on 23 July 2013. An opposing affidavit by Rodgers Kachambwa was filed together with the Notice of Opposition.I shall ...
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HH202-18 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA MUGABE LEGAL COUNSEL
Ruled By: TSANGA J

Rule 49 is clear on what must peremptorily be done after an entry of appearance to defend has been filed. It states as follows:“49. Notice of entry of appearanceWithin twenty-four hours of the entry of appearance to defend written notice thereof shall be served on the Plaintiff or on his ...
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HH442-15 : DAVID WHITEHEAD TEXTILES LTD (represented by KNOWLEDGE HOFISI, in his capacity as Final Judicial Manager) vs JYOTSANAGEN KALA and LISTON CHAKUPA and MASTER OF THE HIGH COURT
Ruled By: MAFUSIRE J

Order 32 Rule 238 reads:“(2) Where an application, exception, or application to strike out has been set down for hearing in terms of subrule (2) of Rule 223 and any respondent is to be represented at the hearing by a legal practitioner, the legal practitioner shall file with the Registrar, ...
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HH442-15 : DAVID WHITEHEAD TEXTILES LTD (represented by KNOWLEDGE HOFISI, in his capacity as Final Judicial Manager) vs JYOTSANAGEN KALA and LISTON CHAKUPA and MASTER OF THE HIGH COURT
Ruled By: MAFUSIRE J

In Grain Marketing Board v Muchero 2008 (1) ZLR 216 (S), the Supreme Court held, inter alia, that it was clear from Rules 83, 84, 233 and 239 that once a party is barred the matter is treated as unopposed unless the respondent makes an application to lift the bar; ...
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SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).On 25 July 2005, SANDURA JA, sitting with ...
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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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HB125-18 : THE SHERIFF OF ZIMBABWE - APPLICANT vs CORESOIL MINING PL (Represented by Kelvin Kaguru) - CLAIMANT and KUSAFUNGA KAGURU - JUDGMENT DEBTOR and ESTER MOYO (NEE KELLIE) - JUDGMENT CREDITOR
Ruled By: MAKONESE J

The applicant is the Deputy Sheriff for Bulawayo. Pursuant to the provisions of Order 30 Rule 205A as read with Rule 207 of the High Court Rules, 1971, the applicant filed an interpleader notice in this matter.The judgment creditor obtained judgment in case number HC735/15, and, subsequently, instructed the applicant ...
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HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

The parties had filed both the application and the opposing affidavits and thus the matter had, in my opinion, reached litis contestatio and the application could have, at that stage, been set down for hearing.
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Appealed
SC08-14 : SIMBA MUKAMBIRWA and OTHERS vs THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The respondent in this case, the Gospel of God Church International 1932 (hereinafter referred to as “the Church”) was founded by one Johane Marange in 1932.Since it was founded, the Church has spread to a large portion of the continent. Its headquarters are located in Zimbabwe. The founder is buried ...