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Cause of Action and Draft Orders re: Exceptions, Special Pleas, Plea in Bar and Plea in Abatement iro Approach

HB07-09 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA
Ruled By: KAMOCHA J

After the filing of an exception, the parties should adopt the procedure laid down in Order 21 Rule 138 of the Rules of the High Court. If the exception and/or plea on bar are not being prosecuted as required by law, the parties should proceed to have the main case brought to trial.
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HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS
Ruled By: KUDYA J

The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security ...
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HH74-12 : MIKE BELINSKY vs TONDERAI CHIPERE
Ruled By: HUNGWE J

The defendant filed a special plea on 20 October 2008. The following facts constitute the basis of the special plea. 1. The respondent (plaintiff in the main matter, hereinafter called “plaintiff”) issued summons under case number HC190/08 claiming damages arising from a road traffic accident on 14 January 2008. 2. Pleadings were exchanged between the parties leading to ...
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Appealed
SC45-15 : SAMMYS GROUP (PRIVATE) LIMITED vs JOHN MEYBURGH N.O. and NUGLO INVESTMENTS (PRIVATE) LIMITED and C.W. ELECTRICAL (PRIVATE) LIMITED and REGISTRAR OF COMPANIES N.O.
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

On May 16, 2013, the High Court gave judgment upholding an exception taken by the respondents and dismissing the appellant's claim with costs. This is an appeal against that judgment. THE BACKGROUND On 17 December 2010, the appellant (plaintiff in the court a quo) issued summons against the respondents (defendants in the court a quo) in the ...
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HH133-10 : JAYESH SHAH vs AIR ZIMBABWE CORPORATION
Ruled By: KUDYA J

On 23 June 2008, the plaintiff issued summons out of this court against the defendant. After the plaintiff furnished it with the further particulars it requested, the defendant, inter alia, excepted to the summons and declaration on 3 October 2008. The basis of the exception was that the defendant had ceased to exist, both at ...
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HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

I shall now proceed to deal with each of the said reasons given by the defendant for rejecting the plaintiff's claim. 1. Plaintiff's summons was invalid as it had not been signed by a Manager or Accountant of the plaintiff in breach of the facility letter If the above challenge, which, I must say, was ...
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HB107-11 : JOYLEN INVESTMENTS (PVT) L TD vs SNAPPY SPORTS BAR and INNOCENT WINSTON BABBAGE
Ruled By: CHEDA J

This is an application for a special plea and exception by the defendant.
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HB80-10 : NAISON CHAGARA GONOUYA vs SHADRECK HUKUIMWE and JUSTICE MUNYAMANA and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J

At the trial, the defendant moved that the court deals with his special plea which he had filed in terms of Order 21 Rule 137(1)(a) of the Rules of Court in the hope that the matter would be disposed at that stage if the plea in bar succeeded….,. Further, it was contended that, on receipt ...
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HB83-10 : BERNIE WATSON vs ANDREA COETZEE
Ruled By: NDOU J

On or about August 2006, the parties entered into an oral agreement in terms of which the plaintiff sold to the defendant a certain dwelling house commonly known as Number 56 Burnside Road, Bulawayo for the sum of US$60,000= payable as follows: (a) The sum of US$30,000= to be paid in the Zimbabwean Dollar equivalent; and (b) The ...
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HB115-10 : GORDON TUNDURE vs NKOSIKHONA NCUBE and D. MOYO
Ruled By: KAMOCHA J

When service was effected on the second defendant, on 23 July 2010, prescription had not begun to run. The service was accordingly valid. But was he vicariously liable for the accident caused by the negligence of the first defendant? The second defendant was employed by Martin Senda. He was an employee just like the first defendant - albeit ...
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HH16-13 : KEMBO MOHADI vs THE STANDARD and STANDARD PRESS (PVT) LTD and DAVISON MARUZIVA and EDDIE CROSS
Ruled By: ZHOU J

This is an exception to the plaintiff''s claim for damages for defamation on the ground that the words complained of carry no reference to the plaintiff and that the declaration makes no proper allegations of facts which would enable the ordinary reader to identify the plaintiff as the person defamed.
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HH16-13 : KEMBO MOHADI vs THE STANDARD and STANDARD PRESS (PVT) LTD and DAVISON MARUZIVA and EDDIE CROSS
Ruled By: ZHOU J

In response to the summons and declaration, the defendants filed a special plea and an exception. The special plea was based on the citation of the first defendant, The Standard, which is the name given to the publication in which the article complained of was published. The plaintiff withdrew its claim against The Standard, thereby ...
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HH16-13 : KEMBO MOHADI vs THE STANDARD and STANDARD PRESS (PVT) LTD and DAVISON MARUZIVA and EDDIE CROSS
Ruled By: ZHOU J

Counsel for the excepient urged that in the event that the exception is upheld the court must strike down the declaration and dismiss the plaintiff's claim on the ground that the case turns upon an interpretation of the article complained of. The plaintiff did not ask for leave to amend his declaration in the ...
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HH46-13 : S. MAKONYERE vs ALFRED MUCHINI and THE SHERIFF and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

The respondent also submitted that the issue of res judicata had been improperly raised by the applicant as it was only raised in the answering affidavit. The plea of res judicata is a special plea and it has to be specifically pleaded by a party relying upon it. In this case the applicant referred to it ...
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HH112-13 : EFROLOU [PVT] LTD and EMILY LUWACA vs MRS MURINGANI and EFROLOU [PVT] LTD and REGISTRAR OF DEEDS, BULAWAYO and THE MESSENGER OF COURT, KWEKWE
Ruled By: MAFUSIRE J

Prescription goes to the root of a claim or defence. In terms of Rule 137 it is a special plea in bar. It is taken where the matter is one of substance which would not involve delving into the merits of the case. If a special plea is allowed it disposes of the case.
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HH126-13 : AMER KHAN vs INNOCENT MUCHENJE and CHARM MUCHENJE
Ruled By: MAKONI J

In order to bring an exception within Rule 223(3) for set down on the opposed roll, the matter must be opposed. Rule 223(2) provides: “Set down of other matters on notice (1) …,. (2) Subject to subrr (3), (4), (5) and r238, exceptions, applications to strike out and other applications which are opposed shall be set ...
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HH373-13 : KEEFEX INVESTMENTS and ARENSON INVESTMENTS (PVT) LTD vs WEDZERA PETROLEUM (PVT) LTD and ERIC NHODZA and TOBIAS MUPINGA and MUKAI MAHACHI
Ruled By: CHIGUMBA J

In their plea, filed of record on 13 October 2011, the defendants raised a plea in bar against the second plaintiff; that it was not a locally registered company, it was a peregrine and needed to found jurisdiction in Zimbabwe by providing security for costs….,. At the hearing of the matter, a Certificate of Incorporation, ...
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HB06-11 : JOTHAM CHIRONGOMA vs TDG LOGISTICS and REGENT INSURANCE
Ruled By: MATHONSI J

The first defendant is a peregrinus whose address is given in the summons as Bracken Gardens Alrode, Johannesburg, South Africa. The said company does not have property located within the Zimbabwean jurisdiction but has haulage trucks which ply Zimbabwean routes on commercial deliveries in Zambia. On 30 April 2009, the ...
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HB87-13 : SAMMY'S GROUP PL T/A KINGS AUCTION CENTRE vs JOHN MEYBURGH (NO) and NUGLO INVESTMENTS (PRIVATE) LIMITED and C.W ELECTRICAL (PRIVATE) LIMITED and REGISTRAR OF COMPANIES, N.O.
Ruled By: MAKONESE J

The parties in this matter appeared before the Honourable NDOU J on the 4th September 2012 for a Pre-trial Conference under case no.HC2104/10. It was agreed that the matters under case no.2104/10 and HC2734/10 be consolidated and heard together. In case no. HC2104/10, the parti