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Findings of Fact re: Witness Testimony iro Candidness with the Court and Deceptive or Misleading Evidence

HH51-12 : TENDAYI MUNDAWARARA vs EMELDA MUNDAWARARA
Ruled By: MAWADZE J

I find both parties to be very impressive witnesses in most material respects. In fact, there is very little to choose between the parties as it were. They were both eloquent, focused, and admirably candid with the court on many issues.
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HH134-12 : EVANGELIST SANDE (nee NYAMANGUNDA) vs TAKAWIRA KIZITO SANDE
Ruled By: CHITAKUNYE J

In 1989, the plaintiff and defendant married each other in terms of customary law. Their marriage was however not registered. After a period of about ten years living together in the manner of husband and wife they decided to have their marriage solemnized in terms of the Marriages Act [Chapter ...
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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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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

The plaintiff even admitted that he could not recall the exact amount of money he had paid over to his legal practitioners as the purchase price. Had he rehearsed his evidence he could simply have given the figure.
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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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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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HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

A more damning piece of evidence which was not placed before me in September 2009 is Reservation Order 1518 made in terms of section 35(1) of the Mines and Minerals Act [Chapter 31:05]. Section 35 of the Mines and Minerals Act [Chapter 31:05] provides thus - “35 Reservations against prospecting and pegging (1) The mining commissioner may, and ...
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HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA
Ruled By: MAVANGIRA J

The defendant refused to disclose his monthly income in South Africa where he is now employed on the ground that he did not think it would be in his best interests to do so. On this particular aspect, the defendant chose not to be candid with the court, and, again, I find persuasive the further submission ...
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HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER
Ruled By: BHUNU J

The applicant is a duly registered company in terms of the laws of this country. It is in the business of importing and marketing fuel in terms of licence number 000228 issued by the respondent Ministry on the 2nd of January 2009. It is common cause that on the 4th of September 2009 a consignment of 476,427 litres ...
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HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

I did not believe the plaintiff when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He ...
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HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JP

In casu, it is not in dispute that the defendant does not have in its stock the two steel products. It has not been proved before me that the steel products are readily available on the market. The plaintiff was uncharacteristically cagey when it came to testifying about the Y12 that he purchased elsewhere on the ...
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HH74-10 : CHARLES MAKANI vs GERTRUDE MAKANI (NEE ZIMONDI)
Ruled By: GUVAVA J

The plaintiff gave his evidence well. He gave full explanations both in his evidence in chief and when questioned in cross examination. His evidence was supported by documentary evidence, and, even where it was not so supported, it was plausible and coherent....,.The defendant, on the other hand, did not strike ...
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HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

In assessing the evidence it seemed to me that the plaintiff was intent on showing that the defendant had not contributed at all in the acquisition and construction of the property. He, however, did not dispute the defendant's evidence that they earned about the same salary and the plaintiff could ...
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HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

The plaintiff gave her evidence in an honest and forthright manner. Her demeanor was good, and, although she was subjected to a lengthy and detailed cross examination she did not get angry or lose patience. She stuck to her story and answered questions put to her politely. She was candid ...
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HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

The respondent accepts the need for the variation of the maintenance order, and has, in fact, proposed the amount that he should be ordered to pay.But he has not taken the court into his confidence and divulged/stated how much income he gets, albeit, from the occasional jobs that he says ...
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HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

The plaintiff gave his evidence in a quiet and dignified manner. He was not shaken in cross examination. His testimony was supported by..., and...,. I found both..., as honest, candid and forthright witnesses who did not exaggerate. The exhibits that were produced confirmed that he told the truth. His version ...
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HB33-09 : CASTRO NDLOVU vs IAN DAVID GUTHERLESS N.O. and DONALD MAZWI SIBINDI and DIDYMUS MUTASA N.O. and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS-BULAWAYO
Ruled By: KAMOCHA J

Where it is found that a litigant was less candid with the court, such litigant should not expect the court to come to his/her assistance.In casu, as shown above, the applicant's affidavit was riddled with out and out falsehoods.
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HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police. He was charged and convicted for bringing disrepute to the Zimbabwe Republic Police in contravention of section 35 of the Police Act [Chapter 11:10] (hereinafter called the Police Act).He was sentenced to twelve days imprisonment.The first respondent is ...
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HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: MAVANGIRA J

The defendant was very reluctant to tell the court how much he was earning per month saying it was difficult to calculate. But, as submitted by the plaintiff's legal practitioner, how can a tradesman not be able to calculate what he earns per month? He does the work, renders an invoice, and receives payment. What ...
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HH168-10 : THOMAS TUNGAMIRAI vs LORRAINE TUNGAMIRAI
Ruled By: MUSAKWA J

As for his earnings, he said it was difficult to say.
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HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS
Ruled By: CHATUKUTA J

The plaintiff issued summons on 23 July 2007 claiming the following relief:“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:1. Chimbuya.2. Magwirokona.3. Mavhengere.4. Bwangundoga.5. Mupandasekwa.6. Gwenhamo.7. Shumbayaonda.(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the ...
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HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

On 1 September 2008, L.T. Chitsaka, the Chief Executive Officer of the second respondent, made an electronic transfer of $38,884= to Global Gifts Concepts (Private) Limited, which is the name of the account in whose favour the deposit of $225,000= had been made. Again, on the same day, Apple Tree Holdings (Private) Limited, ...
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HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

The other witnesses who were called by the plaintiff were candid and forthright in their testimonies. They admitted some facts which were against their interest, such as knowingly overloading their trailer. Their versions on the weight of the loaded trailer were corroborated by the documentation that was raised by the defendant's employees which was ...
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HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

A document filed in support of the applicant's supplementary affidavit, and alleging that the debt had been paid in full, was abandoned at the hearing of this matter. I therefore need not repeat its contents. Upon counsel for the first respondent having queried why the supporting letter to the supplementary affidavit, written on 21 April ...
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HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

In a plea filed on behalf of the defendants on 4 December 2007 they were evincing a willingness to abide by the terms of the contract provided they were allocated foreign currency by the Reserve Bank of Zimbabwe. Further to that, in a summary of evidence filed more than a year later the defendants ...
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HB129-10 : HERBERT VAN DEN BERG and CYNTHIA BESWICK vs FRANK LANG
Ruled By: MATHONSI J

This matter is characterized by a lack of disclosure of useful information as would enable one to make an informed decision on the facts. The brevity of the papers filed and the obvious unwillingness of counsel to clarify the dispute that exists between the parties constitute a challenge indeed.
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HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

The second defence was that the parties never agreed to a monthly rental of US$5,000= claimed and awarded to the respondent. It was contended that the applicant had offered to pay a rental of US$200= per month. The respondent argued that the rental was US$5,000= as reflected by a handwritten endorsement on a letter dated ...
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HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

The plaintiff, in my view, was not an honest witness. He tried to paint the defendant as an uncaring mother who did nothing for the well-being of the family, and, yet, documentary proof produced by the defendant showed that she would bring home substantial sums of money. He also tried ...
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HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO
Ruled By: CHITAKUNYE J

It may also be noted that the applicant was not clear on how she hoped to take care of Nathan Simango upon assuming custody. She seemed unwilling to take the court into her confidence regarding this issue.
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HH129-13 : AIR ZIMBABWE [PRIVATE] LIMITED and AIR ZIMBABWE HOLDINGS [PRIVATE] LIMITED vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

It transpired during argument that contrary to the allegations by the applicants in their founding papers the release from attachment of the assets in question at Stephen Nhuta's instance, in February 2013, had not been the result of any respect by Stephen Nhuta of the new Finance [No.2] Act, Act No.6 of 2012 which ...
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HH25-14 : STEVEN VHAVHA vs MSIZI DUBE and THE DIRECTOR OF HOUSING, CHITUNGWIZA and MUNICIPALITY OF CHITUNGWIZA and NANCY KUTYAURIPO
Ruled By: CHITAKUNYE J

Though it is common cause that this is how the first defendant acquired the property, the first defendant's effort at repelling the plaintiff's claim was riddled with inconsistencies and contradictions. He found himself having to change his stance at certain intervals. For instance, in paragraph 2 of his plea the first defendant denied that ...
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HB102-11 : MIRIRAI MUHUSHWA vs LILIOSA STELLA MUHUSHWA
Ruled By: KAMOCHA J

An analysis of the evidence presented by the parties reveals that the plaintiff was not candid with the court about the acquisition of House Number 61 Dulivhadzimu Township. He also was less than candid with the court about the contributions made by the defendant. He was untruthful about when he got married to the ...
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HB05-14 : CASPER SIBANDA vs BARNABAS SIGOLA
Ruled By: MOYO J

I have already alluded to the lack of logic in the defence case. Not only did the defendant's case defy logic but the defendant himself was not truthful to the court as he contradicted himself and even disowned the information in the pleadings that he filed. The defendant also struggled under cross-examination to ...
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HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI
Ruled By: MAKONESE J

The court found the evidence of Ellen Majola to be simple and straightforward. She was candid with the court and she gave the impression of an unsophisticated woman who simply narrated events that occurred without any tinge of exaggeration. Her demeanour on the witness stand was satisfactory and I find her evidence to be worthy ...
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SC24-13 : VYVYAN JEAN MORONEY vs MICHAEL PATRICK MORONEY
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

In Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03, NDOU J…, 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 – See Tumahole Bereng v R (1949) AC ...
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HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

The first defendant was not a satisfactory witness. He was not forthcoming in his evidence-in-chief and in cross-examination; he claimed not to know anything. His memory on things which should have been within his knowledge was hazy and fragmented….,. For these reasons I could not accept his evidence.
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HH51-15 : JUSTIN MUPAMHANGA vs SAUL GOMWE and JUSTICE DHLIWAYO and BLESSING DOMBOJENA and MINISTER OF LAND AND RURAL RESETTLEMENT (N.O)
Ruled By: MAKONI J

What is emerging from the above, which the applicant had conveniently not disclosed to the court, is that all the parties where settled through offer letters at the same time in 2003….,. The respondents submitted that the applicant deliberately concealed the material and very important fact that he is aware that the respondents have lawful authority, in ...
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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

What is puzzling is why the applicant was not candid with the court….,. He certainly did not put the court into his confidence.
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Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

The respondent deliberately decided not to take the court into his confidence…,.
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SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: BERE JA

There is no appetite by the applicants, through their founding affidavit, to openly disclose that this application is a second similar application which is being brought to court. That deliberate attempt to withhold information does not project the applicants in good light. Our courts are not keen to grant favorable orders to litigants who withhold vital information to ...
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HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

The executor gave the applicant the opportunity to bring to the table the UK estate in a transparent manner by suggesting that an administrator be appointed to deal with the UK properties or, at the very least, she provided proof of the nature and extent of the estate in UK, but, as the executor lamented, ...
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HH155-15 : TAYESA BANDA vs VUSANI G.D. SIBANDA and ORRIL ENTERPRISES (PVT) LIMITED
Ruled By: TAGU J

With the greatest of respect, the respondents are not being truthful to the court….,. The respondents dismally failed to take this court into their confidence.
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HH319-17 : BINDURA UNIVERSITY OF SCIENCE EDUCATION vs TETRAD INVESTMENT BANK LTD (Under Provisional Judicial Management) and THE SHERIFF OF ZIMBABWE (N.O.)
Ruled By: ZHOU J

The first respondent has not taken the court into its confidence by providing evidence of its exposure to more severe consequences if the relief being sought herein is granted….,. No evidence has been placed before this court to suggest that the purpose of judicial management would be defeated by allowing the applicant to execute its writ against ...
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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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Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

The plaintiff was very candid about her character in her evidence. She admitted suffering from temporal lobe epilepsy and that before the diagnosis and treatment she was of violent disposition. She also admitted having smoked dagga, about four (4) times, during the marriage, just for fun, with the defendant, and denied that it was in copius ...
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HH689-15 : THE SHERIFF OF THE HIGH COURT vs MUNYARADZI MAJONI and PAULINA MAJONI and MANDY M MAJONI and JAMES GUMBI
Ruled By: MAFUSIRE J

Counsel for the judgment creditor argued the claimants had refused to take the court into their confidence. They had flatly refused to disclose the judgment creditor's real place of abode. This latter submission was, no doubt, bolstered by my enquiry of the claimants' counsel, on more than one occasion, whether there was no obligation on the claimants ...
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HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: BERE J

Mr Killian Kufahakurambwi was candid enough to advise the court that he declined to sign the second agreement basically because of two reasons, viz, the delay in dispatching that agreement which meant that the agreement per se had been superceded by other developments since the bulk of the purchase price had already been paid. This delay was ...
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HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

We are not taken into the first respondent's confidence with regards to the basis on which it decided to peg member applicants' January 2009 salaries as the benchmark for calculating pensionable emoluments.
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HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets. These cardinal principles seem ...
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