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Automatic Bar re: Approach, Notice to Plead, Notice of Intention to Bar, Upliftment of Bar and the Dies Induciae

HH88-12 : BLUMO TRADING (PRIVATE) LIMITED t/a COLCOM COMMODITIES vs MORGAN MUDUVURI
Ruled By: MATHONSI J

The respondent was served with the applicant's heads of argument on 23 May 2011. In terms of Rule 238(2a) of the High Court Rules, as the respondent is represented by a legal practitioner, the said legal practitioner was required to file heads of argument not more than ten days after ...
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HH104-12 : EXPOSALES (PRIVATE) LIMITED vs POLY PACKAGING (PRIVATE) LIMITED
Ruled By: MUTEMA J

While Rule 238(2b) provides that following an automatic bar against a respondent, the court may either deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll, I am persuaded by MAKARAU J's reasoning in...,. Therein the learned Judge reasoned thus: "It is my further view ...
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HH12-09 : BGM TRAFFIC CONTROL SYSTEMS vs THE MINISTER FOR TRANSPORT AND ZIMBABWE NATIONAL ROADS ADMINISTRATION AND THE CITY OF HARARE
Ruled By: MAKARAU JP

It is trite that in considering an application of this nature, for the uplifting of the automatic bar, the court has a discretion in the matter. In addition to considering the reasonableness of the excuse for the delay, the court also takes into account various factors including the importance of the case, the respondent's ...
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HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

Upon being served with this application on 26 August 2009, one Mr.A.Windimani of Suite 4, Alpha House, Kwame Nkrumah Avenue, Harare purporting to represent the six respondents, filed a notice of opposition to the applicant's application. The notice was supported by an affidavit from the first respondent only. The rest of the respondents did not file ...
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HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

This is a chamber application in which the first applicant seeks an order in the following terms:“IT IS ORDERED THAT:1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and2. The plaintiff be and is hereby ordered to pay costs of suit.”There is need to set out ...
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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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HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD
Ruled By: NDOU J

There is a long history of litigation between the parties as evinced by the cross-references cited…,. The history can be summarized as follows. The parties' relationship stems from a lease agreement originally signed between the applicant and a company called Endurite (Pvt) Ltd. The respondent bought the property, the occupancy of which is at the centre of ...
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HB09-12 : PRINCE NKOMAZANA vs CONCILIA LUPONDO and BULAWAYO CITY COUNCIL
Ruled By: NDOU J

The applicant seeks rescission of an order of this court granted against him in favour of the first respondent. The order was granted on 10 March 2011 under case number HC205/11. Under case number 205/11 the first respondent instituted proceedings through summons against the applicant seeking the transfer of Stand Number 70250/2 New Lobengula to herself from ...
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SC12-09 : MOSI-OA-TUNYA (PRIVATE) LIMITED vs JOINA DEVELOPMENT COMPANY (PRIVATE) LIMITED AND CB RICHARD ELLIS
Ruled By: SANDURA JA

On 1 October 2008, the first respondent filed its opposing affidavit and served it on the applicant. The opposing affidavit was filed long after the three day period within which it should have been filed, in terms of Rule 31(5) of the Rules of the Supreme Court, 1964, had expired. No extension of the period within ...
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Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

The second and third defendants did not attend trial. On the strength of their counsel's assurances that they would appear, I allowed him to participate in the proceedings up to the close of the first defendant's case. No evidence was adduced on their behalf. The reality of the matter was ...
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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 second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.
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HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS
Ruled By: PATEL J

The third respondent, Major-General Chimonyo, is involved in this matter by dint of his claim to occupy and utilise the farm for his own account. His status with respect to the farm is predicated on the first respondent's rights thereto. He filed his notice of opposition out of time and later sought condonation by way of ...
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HH129-09 : DR KIMANI GECAU AND NGINYA MUNGAYI LENNETYE vs MACDONALD NDEREMANI AND MOLINE NDEREMANI AND DOUGLAS NYAUDE AND GRAHAM & DOUGLAS REAL ESTATE (PVT) LTD
Ruled By: GOWOWRA J

The applicants..., were engaged in property development in the Tynwald area of Harare. Around February 2002, the third respondent executed an Agreement of Sale with the first and second respondents in respect of one of the Stands being developed by the applicants, and which the third respondent had been mandated to sell. Arising out of that agreement, ...
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HH129-09 : DR KIMANI GECAU AND NGINYA MUNGAYI LENNETYE vs MACDONALD NDEREMANI AND MOLINE NDEREMANI AND DOUGLAS NYAUDE AND GRAHAM & DOUGLAS REAL ESTATE (PVT) LTD
Ruled By: GOWOWRA J

The first applicant defended the earlier proceedings up to pre-trial conference stage, at which stage the action was withdrawn. The first applicant has challenged the validity of the Agreement of Sale being sought to be enforced. There has been no reckless disregard of the Rules, in that the first and second respondents cannot claim ...
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HB69-09 : ALEX MUDZINGWA vs SAI ENTERPRISES (PRIVATE) LIMITED
Ruled By: NDOU J

On the eve of the hearing of this application, the respondent filed an application for the upliftment of the bar. The respondent seeks the postponement of this matter pending the hearing of the application for the upliftment of the bar. It has taken the respondent about four months to file the application for upliftment of the bar. Counsel ...
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HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

The applicant's heads of argument were filed on 3 June 2009 and served on the respondents legal practitioners on that same date. In terms of Rule 238 of the High Court Rules, the respondents were required to file their heads of arguments not more than ten days after being served with the applicant's heads of arguments. ...
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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 effects of a bar flow from Rule 83 which provides that - “(a) The Registrar shall not accept for filing any pleadings or other document from the party barred; and (b) The party barred shall not be permitted to appear personally, or by legal practitioner, in any subsequent proceedings in the action or suit; except ...
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HH91-10 : REVEREND R. J. SIBANDA and APOSTOLIC FAITH CHURCH vs MAGISTRATE RODNEY MZYECE N. O. and NCN MATIZA and K. BOSHA and O. GUMBO and THREE OTHERS
Ruled By: KARWI J

The applicants filed their application for review on 18 August 2006 - some two months out of time. The applicants are also seeking condonation of their late application for review. They are also seeking condonation of their delay in filing Heads of Argument in this matter. The application is strongly opposed by the respondents. In his founding affidavit, ...
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HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

In March 2009, the applicant approached this court on a certificate of urgency and obtained a provisional order calling upon the respondents to show cause why they should not be ordered to release certain items of household goods and effects whose details were listed in an annexure to the application.As ...
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HH122-10 : GIBSON CHAMBOKO and MR CHAMBOKO SNR and CHANGE TOMAS KWODZI vs PATRIC JOHN STOOKS and P J STOOKS (PRIVATE) LIMITED
Ruled By: MAKONI J

The respondents attribute their failure to file opposing papers to the fact that they thought the two matters had been consolidated. If one were to accept their version, the judgment by MUSAKWA J was handed down on 28 January 2009. The applicants contend that they only managed to get the full reasons towards the end ...
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HH178-10 : MATANDA (PRIVATE) LIMITED vs MINISTER OF NATIONAL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT and ONIAS GOTORE and OTHERS
Ruled By: MAKONI J

The first to fourth respondents had been barred for failing to file heads of argument in terms of the Rules.
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HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

In Sibindi v ARDA 1994 (1) ZLR 284 the Supreme Court had to consider an appeal wherein the court had mero motu dismissed a claim when the defendant had been in default on the date of trial and no application had been made for the dismissal of the claim. GUBBAY CJ..., observed as follows ...
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HH87-11 : NATIONAL SOCIAL SECURITY AUTHORITY vs CHIMBWANDA DENFORD HANDSON
Ruled By: MTSHIYA J

The respondent being barred for failure to file heads of argument in terms of the Rules of this court and no application for the upliftment of the bar having been made, the applicant is entitled to the relief sought: IT IS ORDERED THAT: a) The cancellation of the agreement of lease between applicant and respondent in terms of ...
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HB57-11 : TRADEPASS MARKETING SERVICES (PVT) LIMITED T/A OUTREACH FOR JESUS CARPENTERS vs M. FILANNINO AND MARKOU M and JOHN POCOCK AND COMPANY (PVT) LIMITED and OTHERS
Ruled By: MATHONSI J

In this matter, the applicant seeks an order declaring that there is a bar operating against the second respondent and that the special plea filed by the second respondent was filed out of time. On 7 February 2011, the applicant filed a notice of intention to bar which was served on Calderwood Bryce Hendrie and ...
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HB58-11 : TRADEPASS MARKETING SERVICES (PVT) LIMITED T/A OUTREACH FOR JESUS CARPENTERS vs M. FILANNINO AND MARKOU M and JOHN POCOCK AND COMPANY (PVT) LIMITED and OTHERS
Ruled By: MATHONSI J

The applicant filed a notice of intention to bar against the 1st, 3rd, 5th, 6th and 8th respondents on 16 February 2011 which notice was served on Joel Pincus Konson and Wolhuter on the same day. The respondents therefore had until close of business on 23 February 2011 to file a plea or other ...
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HH233-10 : YAKUB SURTEE vs SHAUN EVANS and PAUL FRIENDSHIP and COLLIN MacMILLIAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: MTSHIYA J

In this application, the applicant seeks the following relief:“1. The respondents be and are hereby held to be in contempt of this Honourable Court Order granted on 19 May 2009.2. The respondents be and are hereby incarcerated for a period of ninety (90) days each.3. Costs of this application shall ...
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HB02-10 : MAHLULELI NIXON DUBE vs N & S PROPERTIES and NICHOLAS MASUKU and JONAH DUMAH and POLINA DUMAH and CITY OF BULAWAYO
Ruled By: KAMOCHA J

The application for a postponement was also ill-conceived in that it was being sought when there was bar against them (the first and second respondents) which had not been uplifted. They were barred for failing to file their heads of argument timeously. The application for a postponement could only be made if they had successfully applied for ...
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HB127-11 : CHARLES KASTO vs CHENGETAI SITHOLE
Ruled By: NDOU J

This is an application for rescission of judgment. The salient facts of the case are the following. The respondent issued summons for debt collection against the applicant under case number HC514/10. The applicant was served with the summons on 8 March 2010. The applicant entered an appearance to defend the action on 22 March 2010 but ...
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HH249-10 : PRINT AFRICA (PRIVATE) LIMITED and MOSES MPOFU vs OLD MUTUAL PROPERTY INVESTMENTS
Ruled By: GOWORA J

The first applicant concedes that it is barred from proferring a defence.
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HH07-13 : ZIMBABWE TEXTILE MANUFACTURERS ASSOCIATION vs ZIMBABWE TEXTILE WORKERS UNION and DR. GODFREY KANYENZE
Ruled By: MTSHIYA J

Counsel for the applicant noted that the applicant's heads of argument were filed on 17 April 2012. He said in terms of the High Court Rules 1971 the respondents' heads of argument were only filed on 26 June 2012. He said in terms of the Rules the heads of argument were supposed to have ...
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HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

The first respondent was required to file his heads of argument in March 2012, and, having failed to do so, was automatically barred. However, there being no objection from the applicant, the bar imposed upon the first respondent was uplifted by consent and his failure to file heads timeously was also condoned. Any costs ...
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HH75-11 : PHILI GLADYS SIBONGILE vs GWERU INVESTMENTS (PVT) LTD (represented by FRANK BUYANGA) and THE REGISTRAR OF DEEDS N.O.
Ruled By: MUTEMA J

The applicant was initially a self-actor. She appeared in person on 2 February 2011 and applied for the postponement of the matter to enable her to secure legal representation. I duly granted her the indulgence which she had sought and postponed the hearing to 23 February 2011….,.Following the postponement on 2 February 2011, Messrs Kanoti ...
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HH91-11 : BENEDICT AMON CHIKWANHA vs VICTORIA MUKUNDADZVITI and CITY OF HARARE and DEPUTY SHERIFFand MKWANILA SYLVESTER MATEO
Ruled By: MTSHIYA J

In her opposing affidavit to the relief sought in case no. HC1342/10, the first respondent raises two points in limine. She states as follows:- “APPLICANT IS BARRED 3. I am advised by my legal practitioners, whose advise I embrace, that the applicant is barred from approaching this Honourable Court with an application for Rescission of Judgment. The ...
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HH100-13 : H. J. VORSTER (PVT) LTD vs SAVE VALLEY CONSERVANCY
Ruled By: MATHONSI J

The applicant is barred, in both matters, by reason of failure to file heads of argument timeously; it having attempted to file heads of argument this morning. Counsel for the applicant confirmed that the applicant was served with the respondent's heads of argument on 7 March 2013 - almost a month ago….,. In terms of ...
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HH125-13 : MICHELLE NYAMANGUNDA vs MASHONALAND TURF CLUB
Ruled By: MANGOTA J

This is an application for the upliftment of a bar which the respondent imposed against the applicant. HISTORY OF THE CASE On 13 March, 2012 the respondent (plaintiff in the main case) issued summons against the applicant (defendant in the main case) claiming: (a) An order for the eviction of the respondent and all those occupying through ...
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HH126-13 : AMER KHAN vs INNOCENT MUCHENJE and CHARM MUCHENJE
Ruled By: MAKONI J

At the hearing of the matter, counsel for the respondents took issue, in limine, with the manner the applicant handled the issue of his heads of argument. Counsel for the respondents submitted that the applicant's heads of argument were filed on 20 September 2011 and were only served on 29 September. There is no ...
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HH334-13 : MAXWELL MATSVIMBO SIBANDA vs TSANGA TIMBERS and RICHARD SAZIYA and PARKS & WILDLIFE MANAGEMENT AUTHORITY OF ZIMBABWE and OTHERS
Ruled By: BHUNU J

Counsel for the applicant submitted that the applicant has applied for a declarator to which the third respondent has filed an opposition. She further submitted that the fourth and fifth respondents have not responded and are therefore barred from so doing….,. Counsel for the fourth and fifth respondents submitted that, indeed, no notice of opposition had ...
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HH153-11 : MICHAEL TAREMBA (in his capacity as Executor in the Estate of the late Joseph Patrick Taremba) vs NYADA PHIRI
Ruled By: CHITAKUNYE J

On 13 September 2010, the applicant filed his answering affidavit. On 18 October 2010, the applicant's heads of argument were duly filed with court and served on the respondent on 19 October 2010. Thereafter, the respondent was expected to file his heads of argument in terms of the Rules. In this regard, Rule 238(2a) ...
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HH348-13 : THE TRUSTEES OF THE LACEROSE TRUST and LACEROSE INVESTMENT (PRIVATE) LIMITED vs ZIMCOR TRUSTEES (PRIVATE) LIMITED and FRANK BUYANGA and TENDAI MUPFURUTSA and OTHERS
Ruled By: MAKONI J

The third, fourth, fifth, sixth, eighth and ninth respondents did not file any papers in opposition. The first and second respondents did not file Heads of Argument neither did they appear on the day of hearing. The third to sixth respondents and the eighth and the ninth respondents did again not appear on the day ...
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HB07-13 : MAXWELL SHUMBA and SIBUSISIWE SHUMBA vs THE APOSTOLICT FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICA HEADQUARTERS)
Ruled By: CHEDA AJ

The applicants also raised argument to the effect that the respondent was barred as he had not filed heads within the time limits. Without any condonation, the respondent would indeed be barred.
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HB54-13 : NKOSITHABILE MDLONGWA vs MLUNGISI NGWENYA
Ruled By: MAKONESE J

The defendant, having been served with summons, failed to enter appearance to defend within the dies induciae and was duly barred.
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HB63-11 : TAFARA CHATORA and FRANCO MUNETSI KATSANDE and MELUSI NDLOVU and ENOS NDLOVU vs THE CHAIRPERSON, WESTERN REGION RENT BOARD and P D S INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

I am fortified in my position by the fact that the supplementary affidavit sought to be introduced in this matter is deposed to by the first respondent who was served with the application and did not file opposition. She is therefore barred which bar has not been lifted. To admit her affidavit would be ...
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HB75-13 : MAYDEEP INVESTMENTS vs CECIL MADONDO and MASTER OF THE HIGH COURT and ZIMBABWE TEXTLIE WORKERS UNION
Ruled By: KAMOCHA J

Further, Maydeep Investments (Pvt) Ltd was unable to file its' heads of argument timeously. The first respondent served his heads of argument on the applicant on 5 September 2012 while Zimbabwe Textile Workers Union served its' heads of argument on 1 October 2012. But the applicant only attempted to do so a day before the hearing ...
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HB82-13 : ELLINGBARN TRADING (PRIVATE) LIMITED vs ASSISTANT MASTER OF THE HIGH COURT and PEOPLE'S OWN SAVINGS BANK
Ruled By: MUTEMA J

At the hearing, the second respondent's counsel took the point in limine that the applicant was automatically barred on account of not having filed its heads of argument within the stipulated ten day period. See Order 32 Rule 238(2a) as read with Rule 238(2b) of the High Court Rules, 1971. The point taken had substance in ...
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HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

At the hearing, counsel for the judgment creditor raised two preliminary issues. The first point is that the claimant is barred for non-filing of a notice of opposition and the second is that the claimant, for failure to file heads of argument, is again barred. Counsel for the claimant was at great pains trying to persuade ...
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HB173-13 : NKOSINATHI SOLOMON ABU-BASUTU vs KHULUMANI MOYO
Ruled By: MAKONESE J

The Deputy Sheriff effected service of the summons at the defendant's place of residence on the 25th April 2013. The defendant entered an Appearance to Defend on the 6th May 2013. A Notice of Intention to Bar was filed and served on his legal practitioners on the 31st May 2013. The defendant failed to file ...
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HB97-11 : NOREEN SIBANDA and BENSON SIYAWAREVA vs JULIUS MPOSELWA NDLOVU
Ruled By: MATHONSI J

Before dealing with the issue of the applicant's default, I propose to touch on the failure by the respondent's legal practitioners to file heads of argument timeously. The applicants' heads of arguments were filed on 3 May 2011 and served on their opponents on 5 May 2011, as appears from the certificate of service ...
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HH32-14 : ZIMPLASTICS (PVT) LTD vs ROLLY CORBET
Ruled By: CHIGUMBA J

On 4 September 2013, under case number HC6406/13, the applicant obtained an order of this court, that case numbers HC11294/11 and HC4709/13 be consolidated and heard as one matter. The respondent had filed an application for summary judgment under case number HC11294/11 to which the applicant had filed opposing papers. The respondent had filed heads of ...
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HH58-14 : MICHAEL P. HITSCHMAN and PESCA (PVT) LTD vs COMMISSIONER - GENERAL OF POLICE and CO-MINISTERS OF HOME AFFAIRS and ATTORNEY GENERAL and SUPERINTENDENT ARNOLD DHLIWAYO
Ruled By: NDEWERE J

On 19 July 2012, the respondents filed a notice of opposition and attached opposing affidavits from the first respondent and the fifth respondent. On 24 August 2012, the applicants filed an answering affidavit and on 23 October 2012, the applicants filed their heads of argument. The respondents did not file heads of argument. They were therefore barred ...
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HH124-11 : DR BOZENA DUDKA and ALLAN RUSSELL and FAIR COAT INVESTMENTS (PVT) LIMITED and JOHN MUKONO vs CHENI INVESTMENTS (PVT) LIMITED and IAN HAWTHORNE and PERVAZ KHAN and OTHERS
Ruled By: MAKONI J

The first and second respondents did not file heads of argument and they were automatically barred. They did not appear on the day of hearing.
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