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Final Orders re: Doctrine of Effectiveness, Brutum Fulmen Orders, Fait Accompli, Academic Judgments & Doctrine of Mootness

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks the following relief:“1. Terms of the Final Order SoughtThat you should show cause to this Honourable Court why an order should not be made in the following terms:(a) That the proposed meeting of 10 March be and is hereby set ...
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HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of ...
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HH53-10 : BERNARD SIMBANOUTA GATAWA vs W. NKATAZO
Ruled By: BHUNU J

It was a material term of the contract that rentals were to be set off against any improvements upon presentation of receipts denoting the cost of improvements. The quantum of rentals and improvements are, however, in dispute. Both the accumulated rentals and improvements were denominated in Zimbabwean currency – which ceased to be legal tender at the ...
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HH42-10 : BERNCORN (PVT) LTD T/A TWO KEYS TRANSPORT vs ZIMBABWE REVENUE AUTHORITY
Ruled By: CHATUKUTA J

At the time of the hearing of this application the appeal was pending before the Supreme Court. Judgment in this matter was reserved pending determination of the appeal. I considered it brutum futum to make a determination when the same issue was already before the Supreme Court.
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HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED
Ruled By: PATEL J

Disposition As I have found earlier, the defendant has failed to demonstrate any public policy consideration in casu precluding the recognition of the Malawi judgment in Zimbabwe. However, as the evidence shows, the monetary award rendered by the Supreme Court has been fully satisfied by dint of the payment previously effected by the defendant in settling ...
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HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

I did not grant an order for the arrest of the first respondent in the event that he was in breach of paragraphs1, 2, and 3 of the draft order as, firstly, the first respondent was not before me and his submissions on that aspect of that order had not been placed before me. In addition, ...
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HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

The last complaint by the applicant is that the first respondent took time to determine his appeal. He, therefore, prays that, on that basis, its determination be set aside. Going by the relief that the Administrative Justice Act provides for, I could set aside the decision of the first respondent. That would be a brutum ...
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HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI
Ruled By: MAVANGIRA J

With the dollarisation of the economy, the second plaintiff's claim for funeral expenses, which claim is denominated in Zimbabwe dollars, would, even if it were to be granted by this court, be of no real meaning or benefit to her. It will thus not be granted.
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HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

The second point raised by counsel for the respondent was that the writ which the applicants had sought to be stayed had already been executed and that any order for stay would amount to a brutum fulmen.THE TIMING OF THE INSTANT CASECounsel for the respondents took issue with the timing of filing this application. ...
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HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

I am inclined to decline the application for the reason that the award sought to be registered does not sound in money. I am referred to the judgement of my learned sister MAKARAU JP..., in Thandiwe Mandiringa v National Social Security Authority and five other similar applications dealt with together for purposes of convenience HH98-05. ...
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HH135-10 : TREVOR GIFFORD vs I. MUGOMBA and MUYESU and RONALD MUCHENGA and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP

Given the history of the farm, it would be imprudent to grant an order covering the whole farm. Plot 17, measuring 150 hectares, is the subject-matter of this application. The rest of the farm is occupied by persons other than the first, second, and third respondents. Those persons have not been cited as respondents and ...
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HH131-11 : ROSE ELLEN MBANJE vs CHARTER PROPERTIES (PVT) LTD and UBUNTU INVESTMENTS (PVT) LTD and CHARELS MBANJE and THE DEPUTY SHERIFF
Ruled By: MUTEMA J

This matter came before me via the Chamber Book. The application was filed on 13 June 2011 and was scheduled to be heard on the 16th of June 2011. Because the opposing papers were filed and served upon the applicant a few minutes before the scheduled hearing, the applicant requested that the hearing be ...
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HH203-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD
Ruled By: BERE J

The position of the first respondent and second respondent has been clarified to the satisfaction of the applicants so no order should be made against them.
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HB62-11 : JABULANI NYONI vs DIBDEN SERVICES (PVT) LTD and MINISTER OF STATE FOR NATIONAL SECURITY, LAND REFORM & RESETTLEMENT IN THE PRESIDENT'S OFFICE
Ruled By: KAMOCHA J

This application was dismissed at the end of the hearing and I indicated that reasons would follow. These are they. On 19 August 2010, this court issued an order in the following terms: “It is ordered that:- (1) It is declared that two portions of land described as Delville Park, measuring 84,7953 hectares and Delville Park Extension, ...
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HH254-10 : TAAZADZA MUNHUMUTEMA vs JOSHUA TAPAMBWA and SYDNEY KAZHANJE and STANBIC BANK ZIMBABWE LIMITED
Ruled By: MUTEMA J

The reinstatement was confined, by implication, to the date of the applicant's retirement as per the original contract of employment. Had the anomaly, prima facie exitant in the order, been laid bare to both tribunals, the wording of the reinstatement order would certainly have taken it into account.
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HH270-10 : SASFUEL AND CHEM (ZIMBABWE) PRIVATE LIMITED vs MARYNA SYMES N.O. and ENVA MOTALA N.O. and THLABO MAENETYA N.O. and THE MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI J

Secondly, if the motor vehicle/trailers are at VID how can the court order the respondents to return such motor vehicle to the applicant?
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HB02-11 : MELUSI NDLOVU vs P D S INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

When the application was placed before me, on 26th November 2010, it was not brought to my attention that the applicant had already been evicted and that the order he was seeking had already been overtaken by events, so to speak….,. What is more, at the time the matter was placed before me, it ...
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HH226-10 : PEPUKAI MUSARIRI vs MUSIWA MUTAVAYI and BLESSING KUPARA and NORTON TOWN COUNCIL and REGISTRAR OF DEEDS
Ruled By: MUSAKWA J

Before the second defendant assumed occupation of the property she was served with summons issued by the plaintiff from Norton Magistrates' Court. She and the first defendant attended court where the plaintiff's case was dismissed. It would appear that the plaintiff had sought an interdict to stop the sale of the house but that ...
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HH263-10 : RITENOTE PRINTERS (PRIVATE) LIMITED vs ADAM AND COMPANY and MESSENGER OF COURT
Ruled By: GOWORA J

Counsel for the applicant has urged me to right the wrong that has been done to the applicant as regards the execution of the judgments pending appeal. He has, relying on S v Taenda 2000 (2) ZLR 394; S v Chakwinya 1997 (1) ZLR 109; and S v Ndiweni 1983 (2) ZLR 49, urged ...
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HB187-11 : MOVEMENT FOR DEMOCRATIC CHANGE vs FRACISCO NYONI and DEPUTY SHERIFF
Ruled By: NDOU J

This is an application for stay of execution of an arbitral award registered by this court in terms of section 98(14) of the Labour Act [Chapter 28:01]. This application for stay of execution has since been overtaken by events as this court granted rescission of the judgment sought to be executed. The only issue ...
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HB22-11 : WILLIAM NGWENYA vs STELLA MATONGO and VAINA MOYO and MAQHAWE MATHE and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J

As far as the application relating to joinder is concerned the applicant did not state in terms of what Rule he wanted to be joined to a matter which has already been finalized.
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HH172-14 : FARAI NDEMERA vs THE SHERIFF OF ZIMBABWE and EDINA MUKURAZHIZHA and THE REGISTRAR OF HIGH COURT and THE REGISTRAR OF SUPREME COURT
Ruled By: MANGOTA J

The alternative relief which he prayed the court to grant him was overtaken by events and it could not, therefore, be considered.
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SC12-13 : OLIVER CHIDAWU and BROADWAY INVESTMENTS and DANOCT INVESTMENTS and DANNOV INVESTMENTS vs JAYESH SHAH and TN ASSET MANAGEMENT and ISB SECURITIES and ZIMBABWE STOCK EXCHANGE and CONSERVE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

The appellants have contended that since the learned judge found that the application was not properly before the court by virtue of the defective certificate of urgency, the appropriate relief was to have the matter struck off the roll. It was argued that the learned judge erred by dismissing the application. It is therefore prayed, ...
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SC26-14 : FOLLY CORNISHE PL and JOHN HAMPHREYS vs SHINGIRAYI TAPOMWA N.O. and ESTATE LATE MISHECK TAPOMWA and T.E. MUDAMBANUKI and MANSTEBO & COMPANY and ADMIRE RUBAYA and THE REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

On a careful perusal of the issues raised by both parties to this appeal, it seems to me that the first issue that falls for determination is whether the order granted by the Magistrates' Court is a valid order or not. If the order was not, then any transfer pursuant thereto would have been ...
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SC35-13 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR FOR LOWER GWERU and OTHERS
Ruled By: MALABA DCJ, GOWORA JA and CHEDA AJA

The granting of the relief relating to the interim order is no longer possible because the first respondent was installed as substantive Chief Bunina of Lower Gweru on 18 September 2009. He had been appointed on 7 May 2007.
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SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PRIVATE) LIMITED and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

Whether the first respondent has locus standi to evict the appellant? The issue of locus standi was improperly before the court a quo because it was res judicata. It had been finally and definitively determined by the Magistrate's Court, and remains so determined until that decision is upset by a properly constituted review or appellate court. ...
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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 Master of the High Court also recommended that as there is a dispute, an independent executor be appointed….,. It should be noted that the recommendations of the Master of the High Court could not be implemented as the issue of the removal of the executor was not before the court.
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HMA01-18 : MAIN ROAD MOTORS and SYLVIA CHORUWA and PATRICK MUGUTI vs ZIMBABWE REVENUE AUTHORITY and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT and ATTORNEY GENERAL
Ruled By: MAFUSIRE J

Ancillary relief included an order declaring as unlawful, the seizure, or attempted seizure, by the Zimbabwe Revenue Authority [“ZIMRA”] of certain second hand Toyota Fortuner motor vehicles imported by the applicants in November 2015, March 2016, and October 2016. The applicants also sought the immediate and unconditional return of such of the motor vehicles as might ...
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CC22-17 : MOVEN KUFA and VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE and OTHERS
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

It should be highlighted…, that the tenure of office of the eight ministers whose appointment forms the basis of the present proceedings came to an end “on the effective date” when the President, elected in terms of the new Constitution, assumed office in terms of that Constitution. To a large extent, therefore, this judgment has been ...
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CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

This is a court application brought in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”). The section provides that only the Constitutional Court (“the Court”) may determine whether Parliament or the President has failed to fulfil a constitutional obligation. The applicants seek an order declaring the first respondent to have failed ...
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SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.The appeal is mounted against part of the judgment, in particular, ...
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HB25-12 : GEORGE MPUKUTA vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSION COMMISSION and MINISTER OF FINANCE
Ruled By: NDOU J

The applicant seeks an order in the following terms:“It is ordered:(a) That the 1st respondent not an insurer in terms of the Insurance Act but an association of insurers with no capacity to issue statutory policies in terms of the Road Traffic [Chapter 13:11] or any other law.(b) That the ...
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Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null ...