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Approach, Language of Record, Open Justice, Discovery, Obligation to Disclose All Information, Suppression & Ambush Tactics

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

The defendant called Dorcas Sibindi, the manageress at the service station during the relevant time. Her evidence was brief and concise.She knew the second and third plaintiff's witnesses as the plaintiff was one of the account holders at the service station. The station operated three tanks; one for commuter buses, ...
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HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks a provisional order in the following terms:-“(A) TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That the execution of the Arbitral Award in case ...
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Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

It is…, significant that the much talked about written initial sale instructions to Fingold Real Estate were never tendered in court. Ms Chidavaenzi was quite categoric that there were no such instructions, and, in my view, the probabilities are firmly in her favour.
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HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

Section 13(3) of the Constitution provides, that, any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which he understands, of the reasons of his arrest or detention...,.
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HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

The plaintiff dismissed arguments that he had given contradictory evidence in the trial before MTAMBANENGWE J and this court. He claimed that he may have been misunderstood since he spoke in a language which was not his mother language in the MTAMBANENGWE J trial.
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HH103-11 : FIRST MUTUAL LIFE ASSURANCE SOCIETY OF ZIMBABWE vs BUSINESS ASSOCIATES (PRIVATE) LIMITED and FRANCIS HALE and SHINGAI J. MTEZO
Ruled By: MTSHIYA J

I am unable to say the same with respect to the second respondent because his Deed of Suretyship does not form part of the papers before me. I therefore do not know how it was worded.
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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

In Coffee, Tea Chocolate Company Ltd v Cape Trading Company 1930 CPD 82 GARDINER JP set out clearly, that, in an application, the cause of action is made out in the founding affidavit. He said the following:“A very bad practice, and one by no means uncommon, is that ...
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Appealed
SC30-16 : STAND FIVE FOUR NOUGHT (PRIVATE) LIMITED vs SALZMAN ET CIE SA
Ruled By: ZIYAMBI JA, GOWORA JA and UCHENA JA

The respondent's Power of Attorney filed of record is afflicted by a further problem. The portion after the words “Salzman ET CIE SA” is written in a foreign language. It is a legal requirement that deeds executed in foreign languages and documents in foreign languages must be translated into the English language. Section 49 of the ...
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SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

The first respondent, in its heads of argument, cites the English case of Home Office v Marman [1982] 1 All ER 532, 540 where the following view was expressed: “Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest, in securing that ...
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HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

Counsel for the applicant filed a notice to make further discovery in terms of Order 24 Rule 164 of the Rules of Court….,. The courts have repeatedly stressed the importance of discovery affidavits. In Ferreira v Endley 1966 (3) SA 618 (E) the court was dealing with a case where the defendant's attorneys did all that could be required of ...
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HH124-15 : RIMUKA ISLAMIC SOCIETY vs ENOCK MWASHUHWA
Ruled By: ZHOU J

The defendant admitted that he accepted exhibit 2. He appended his signature on it. He accepted, too, that Jabilu Phiri was elected Chairman of the plaintiff in terms of that Constitution. While counsel for the defendant suggested to Jabilu Phiri that there was another Constitution in existence a copy of it was not exhibited to that witness when ...
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HH128-15 : KUKURA KURERWA BUS COMPANY (PVT) LTD vs JAPHET LUNGA and 55 OTHERS and ADDITIONAL SHERIFF
Ruled By: MANGOTA J

It is pertinent to state that when parties bring cases to court, they should lay before the court all the matters upon which they rely. Parties are, in this regard, discouraged from suppressing information which, in the court's view, is material to a proper determination of the case which is before it.
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HH140-15 : CHIEF SUPERINTENDENT MOYO and PROSECUTOR GENERAL vs OMEGA CHATYOKA
Ruled By: MTSHIYA J

When…, deliberate withholding of information takes place, the principle in Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03 applies. In that case, it was stated as follows: “It is trite that if a litigant gives false evidence his story will be discarded and the same adverse inferences may be drawn as if he had not given evidence at all ...
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HHB182-13 : THE STATE vs CONRAD SIBANDA and FANUEL NOTSA DUBE and QUIET SIBANDA and MPILOKAMLIMU NCUBE
Ruled By: BERE J

In our critical assessment of Sikhumbuzo Mpala's statement we also appreciated that quite often what may appear as contradictions in the witness' recorded statement might be a reflection of a much more complex challenge in the collation of evidence at the initial stages of investigations. The irony of it is that we tend to always ...
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HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Further, the court a quo certainly misdirected itself on a point of law in finding that the appellant's witness should have produced authority to represent it in court. This is not a requirement at law. A witness needs not produce any authority as they are coming to testify or give evidence on facts pertaining to the matter, which facts are in ...
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HH336-14 : IGNATIUS CHOMBO vs MARIAN CHOMBO (NEE MHLOYI)
Ruled By: MANGOTA J

The defendant informed the court that, when the divorce proceedings were in progress, she called at the offices of the Ministry of Lands, Land Reform and Resettlement (the Ministry) where she inquired about her status on the farm. She stated that she saw and talked to one Dr. Murerwa who referred her to the Ministry's legal department. She ...
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HH150-14 : KENNEDY MANGENJE and TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA and KENNEDY MANGENJE
Ruled By: MAFUSIRE J

It is said that this affidavit was filed some three months before I heard the two main cases. But, again, as I have demonstrated in Case 2…, it was also not part of the record when I determined those cases….,. Evidence has been placed before me that that affidavit had been lodged with, and date-stamped by, ...
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Appealed
SC10-19 : SIPHIWE DUBE vs TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

Courts are averse to and detest dishonest litigants bent on misleading the courts. The function of the courts is to do justice. Lies are detrimental and incompatible with the due administration of justice in that they are bound to mislead the court into the wilderness of injustice. This prompted NDOU J, in Leader Trend Zimbabwe v ...
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SC28-19 : EMMANUEL MASVIKENI vs NATIONAL BLOOD SERVICE ZIMBABWE
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

At page 150 of the record is a document marked as “Appendix 22” and headed “Charges proffered against Mr. Emmanuel Masvikeni as per the Code of Conduct of the National Blood Service Zimbabwe.” It lists as evidence of the misconduct in terms of section 3(c)(vi) emails dated 3 and 7 December 2010 which were sent at ...
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HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

The plaintiff argues that the order placing the plaintiff into liquidation, in paragraph 3 thereof, granted the liquidator the power to bring and defend legal proceedings….,. I note, however, that the order placing the plaintiff into liquidation was not discovered, nor was the case reference provided.
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Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

It is very clear to my mind that the defendant, from the time he entered his plea and counterclaim, was not willing to be candid with the court and to avail any relevant information to enable this court to reach a just decision….,. This, however, harmed his credibility as it later turned out that his ...
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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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HHH138-09 : THE STATE vs ROY LESLIE BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

I would, at the outset, mention in passing that at the beginning of these proceedings we were advised that there were foreign observers who wanted to be introduced to members of the Court. While our courts are open to members of the public, we accord no special treatment to any class of persons regardless of ...
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HH92-14 : MANGWIRO SIBANDA vs JANE HAPPIAH CHIKUMBA and ALTFIN INSURANCE COMPANY
Ruled By: CHIGUMBA J

The plaintiff issued summons against the defendants, on 11 September 2012, claiming: (a) Payment of the sum of US$3,700= being the cost of repairs to his Toyota sprinter motor vehicle registration number AAQ 5021 negligently damaged by the first defendant on 17 December 2011 who was at the time driving a Toyota Land Cruiser registration number AAX 3378 ...
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HH809-15 : MANGWIRO SIBANDA vs JANE HAPPIAH CHIKUMBA and ALTFIN INSURANCE COMPANY
Ruled By: CHIGUMBA J

In an application for the recusal of a judicial officer, what must be proved is the mere possibility of bias, not actual bias. What is important when considering the circumstances of each case is the impression or perception that is created in the mind of right thinking people - not the applicant's subjective impression of bias. The test ...
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HH198-15 : MUCAL ENTERPRISES vs STEWARD BANK
Ruled By: TSANGA J

A party who shies away from producing evidence cannot escape the inference that he knows that such evidence will not be favourable to him. The cases of Ntsomi v Minister of Law Order 1990 (1) SA 512 (C); Tshishonga v Minister of Justice Constitutional Development and Anor 2007 (4) SA 135 were cited by the defendant.
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HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The evidence of the Head of Corporate was that all the money was supplied from the offshore related party at the margin and interest rate stated in the facility letter to whom all the capital and interest were remitted.It seems to me that he did not fully disclose the nature ...
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CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of ...
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HH688-15 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA and LALAPANZI PROPERTIES PL and FRANK BUYANGA and REGISTRAR OF DEEDS N.O. and GILDASTONE HOLDINGS PL
Ruled By: CHITAKUNYE J

This is an application for the setting aside of a default judgement obtained by the first respondent in HC2469/13 which had the effect of cancelling the applicant's title deeds to certain immovable property registered in his name.The applicant was not a party to the default judgement but its provisions affected ...
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HH57-12 : CENTRA (PVT) LTD vs PRALENE MOYAS and DEPUTY SHERIFF, HARARE
Ruled By: BERE J

This matter makes bad reading and its background can be summarised as follows:-After the arbitrator had considered the submissions made by both the applicant and the first respondent, the Arbitrator determined the matter in favour of the first respondent and ordered the applicant to pay the respondent a total sum ...
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HH40-13 : TREVOR SIMBANEGAVI vs OFFICER JACHI
Ruled By: MAKONI J

On 8 December 2010, at around 1700 hours, and in Avonlea Drive, the plaintiff was approached by the defendant who was in the company of other officers of the Criminal Investigation Department. The defendant ordered the plaintiff to disembark from the motor vehicle where he was sitting. He ordered the ...
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HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:“INTERIM RELIEF GRANTEDPending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;Point A 0187976 ...
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HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE
Ruled By: CHEDA AJ

Order 46 Rule 408 of the High Court Rules provides that in the absence of any agreement, in writing, between the legal practitioners of all the parties, and subject to these Rules, the witnesses at the trial of any action shall be examined viva voce and in open court, but ...
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Appealed
SC09-21 : ANDERSON MANJA and 98 OTHERS vs SHERIFF OF ZIMBABWE and GURTA MINING AG
Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

In terms of section 49 of the High Court Act [Chapter 7:06] English Language is the official language in which proceedings in the court a quo are conducted.
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HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

The judgment creditors were employees of Amble Mining (Private) Limited. The latter traded as Amble Mine.On 24 May 2010, an Independent Arbitrator granted an award ordering the Mine to reinstate the 99 employees with effect from March 2006 without loss of salary and benefits. As an alternative, the Mine was ...
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HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

A litigant can only discharge an onus by placing sufficient evidence before the court for the purposes of persuading the court to find in its favour. It does not matter how many law reports and books a litigant carries to court - without evidence the onus cannot be discharged.Onus is ...
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HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

The truth..., is the cornerstone of the justice delivery system.
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HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

When a court assesses evidence, it does not treat each individual piece of evidence as an isolated component. Pieces of evidence constitute a mosaic of proof. Doubts in relation to one piece of evidence naturally arises if one picks and chooses to focus on individual evidential pieces. Doubts may be ...
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SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by ...
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HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

The applicant filed this application as an Urgent Chamber Application seeking the following order:(1) That the execution of the eviction ordered under SC138/21 and allowed to continue under HH83-22 be allowed pending finalization of the appeal under CV SC63/22.(2) That the first respondent pays the applicant's costs of suit on ...
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HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.The facts relevant to the resolution of the dispute between the parties are briefly these:The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent ...
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CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

It is the time-honoured rule of procedure in our courts, that, to guarantee a fair trial, the court shall not allow any party to take the other by surprise by raising issues for determination other than in the first appropriate proceeding filed in the suit.
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