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Jurisdiction re: Functus Officio iro Approach

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

This is the first and final distribution account in terms of which the executor awarded the house to the applicants...the Master approved the account. Once the account was approved the executor became functus officio.
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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

Secondly, counsel for the applicants took the point that as this court had pronounced itself in the judgment of the 24th September 2009, this court was functus officio. The first issue to resolve is whether this court is properly seized with this matter. As I pointed out in my directive to the first respondent's legal practitioners, the allegation of ...
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HH35-12 : DEBRAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: GUVAVA J

Whilst it is accepted that this court has inherent jurisdiction under common law to supplement, clarify, or correct its own judgments, it can only do so in very limited circumstances. The rationale being that once a court has delivered a judgment it becomes functus officio. The authors HERBSTEIN and VAN WINSEN in...outline the circumstances in ...
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HH157-12 : JOROME OKEKE vs CHIEF IMMIGRATION OFFICER
Ruled By: MTSHIYA J

The endorsement that the matter is not urgent reflects the prima facie view of the court on the papers without the benefit of oral argument from the parties. Until the matter has been fully argued orally and a determination made thereafter, His Lordship is not functus officio and he can hear oral argument on ...
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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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HB43-09 : THULANI NDLOVU vs SHEPERD MUKURUVA and GRACE MUGWAGWA and REGISTRAR OF DEEDS
Ruled By: NDOU J

The applicant and the second respondent only entered into their Agreement of Sale on 9 September 2003. The second respondent did not honour this Agreement as well, resulting in the applicant approaching this court in 2004. On 20 February 2004, he obtained a provisional order interdicting the second and third respondents from selling and transferring the property ...
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HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

On 20 May, the respondent's legal practitioners raised preliminary points, the first of which was that this court is functus officio and cannot hear the matter as it had already made a final determination that the matter is not urgent and the determination had been communicated to the parties. Reference was made to Chirambasukwa v ...
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HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

Counsel for the applicant argued that the magistrate had no jurisdiction to order execution pending appeal. She contended that the Magistrate Court Act [Chapter 7:10] was silent in granting criminal courts further jurisdiction to issue orders to suspend or execute pending appeal any judgment given under criminal law. Section 3(5) of the Gazetted Land (Consequential ...
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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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HH276-10 : DAVID CHIGODORA and NELIA CHIGODORA vs THOMAS C. T RODRIGUES and THOMAS C.T. RODRIGUES (N.O.) and THE REGISTRAR OF DEED and THE MASTER OF THE HIGH COURT and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

As I have already indicated, the intention to regularize did not constitute a formal decision on the part of the Master of the High Court, and, therefore, the issue of him being functus officio never arose.
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HB51-10 : MORRIS CHINGUWA vs SIPHO NYONI and MAGISTRATE ZVISHAVANE and MR MUTSUNGUMA N.O. THE MESSENGER OF COURT/D/SHERIFF
Ruled By: MATHONSI J

It is clear that the procedure followed by the Magistrates' Court was irregular. From the time the judgment of the Chief's Court was confirmed by that court and a writ issued in favour of the applicant the same court became functus officio and could not lawfully reverse its own decision. In addition to that, the ...
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HH110-13 : THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE vs ABEDINICO BHEBHE and NJABULISO MGUNI and NORMAN MPOFU
Ruled By: CHIWESHE JP

The respondents contend that the court has become functus officio. Whereas in the past the applicant has sought extensions within which to abide by the order, what is presently sought is a different relief which the court cannot entertain….,. The applicant avers that it is competent for the court to hear an applicant who seeks to have ...
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HH56-14 : MABWE MINERALS ZIMBABWE PL vs CHIROSWA MINERALS PL and BASE MINERALS PL and ORBERT MPOFU (Minister of Mines) and THE ATTORNEY GENERAL N.O. and MRS E. KAHONDE N.O. (Mining Commissioner)
Ruled By: CHIGUMBA J

The parties appeared…, before me for oral argument, at the applicant's insistence, after I had initially indicated that the application did not meet the requirements of urgency. The letter from the applicant's legal practitioners, dated 21 August 2013, addressed to the Registrar, read in part, as follows: “We note that pursuant to perusing the urgent chamber ...
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HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA
Ruled By: UCHENA J and MWAYERA J

The appellant and the respondent had a dispute over land which they took to Headman Ganje for determination. Headman Ganje presided over the same dispute twice giving two different judgments. He initially found in favour of the appellant, but, subsequently, found in favour of the respondent. The respondent was aggrieved by Headman Ganje's ...
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HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF
Ruled By: MAFUSIRE J

The respondent's second point in limine was that this court was now functus officio. The argument was that the application before me was basically the same matter as determined by NDEWERE J before. It was said that the arguments proffered before NDEWERE J would be the same arguments to be proffered before me. The order ...
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HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

Whether or not the court is functus officio in regard to the present application does, by and large, depend on the circumstances of this case. The first respondent stated that, in dismissing the application for rescission of default judgement, the court pronounced itself on the point that the applicants were in wilful default. It submitted ...
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SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

The learned authors, HERBSTEIN VAN WINSEN, 'The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa', 5th ed, state that: “The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or ...
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HH57-16 : MOSES PIKAI SHONIWA vs NYUKWA SHONIWA (NEE MAZENGEZA)
Ruled By: CHITAPI J

I was faced with a situation in which I was functus officio but at the same time having power to use the provisions of Rule 449 to revisit my order. However, the powers provided to the court or judge under Rule 449 are exercisable on application.The Rule refers to an ...
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HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS
Ruled By: MUSAKWA J

When the matter was set down for hearing, the Registrar erroneously notified the present applicants. Nonetheless, they were not served with the application itself. It turned out that they attended at the High Court after the matter had been disposed of and after the other parties had already left. They sought audience notwithstanding that I was ...
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HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS
Ruled By: MATHONSI J

The arbitrator who has made an award is functus officio and cannot entertain the same matter again….,.
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HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

In the case of Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346…, where this court said the following: “…., while normally a court does not have jurisdiction to interfere with its own judgments because, in relation thereto, it is functus officio, it does have such jurisdiction over orders made ...
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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

The applicants also argued that once a Zimbabwe Revenue Authority (ZIMRA) officer has assessed the duty on imported goods; has received the duty paid by the importer; and has cleared the goods, he becomes functus officio and cannot go back to his decision to review it again….,. Section 192(1) of the Customs and Excise Act [Chapter 23:02] reads: “192 Embargo on ...
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SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

Whilst the court a quo did not articulate the reason why it believed that the judgment by the Appeal Court was not binding on it, the argument was advanced, on appeal, and on behalf of the respondent, that both courts enjoyed parallel jurisdiction and therefore the previous decision of one was not binding on the ...
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HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

Should our courts be courts of law or courts of justice? One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; ...
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HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows: “The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or ...
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SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...
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HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MUREMBA J

The applicant's application is for rescission of a default judgment which was granted by MANGOTA J on 4 February 2015 in chambers. The application is being made in terms of Rule 449 although on the face of the application the applicant indicated that the application was being made in terms of Rule 249. Rule 249 ...
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SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is a court application filed in terms of Rule 449 of the High Court Rules, 1971 in which the applicant seeks an order rescinding the order granted by this court on 27 November 2019. In terms of the Supreme Court Rules, 2018 the High Court Rules apply whenever there ...
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SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

This is a chamber application made in terms of Rule 12 of the Supreme Court Rules, 1964.The brief background to this application may be summarised as follows:The applicants are husband and wife. They approached the court a quo, by way of urgent chamber application, seeking a stay of execution and ...
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HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

On 7 November 2016, the applicant filed this chamber application....,.The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition to any other power ...
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HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

This matter came before me as an urgent application.After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary ...
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HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

On 17 April 2014, I received a file for an urgent chamber application for a stay of execution pending the determination of an application for rescission of judgment. The applicant sought a provisional order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to the Honourable Court why ...
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HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

Rule 449(1)..., reads as follows, in part:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order ...
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Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

In Tiriboyi v Jani Anor 2004 (1) ZLR 470 (H), MAKARAU J…, said:“The purpose of Rule 449 appears to me to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error, and, where to allow such to ...
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HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be ...
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Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

The applicant approaches this Court in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] with an application for bail pending appeal.He initially approached the High Court with the same application. The court a quo declined jurisdiction and deferred the application for determination by this Court.Factual ...
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HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

I would not have composed a written judgment but for the need to clear the confusion within the applicant's misunderstanding of procedure to assert his liberty rights.The Background to the ApplicationsB1725/20 and B892/20 is as follows:The applicant was convicted by the Regional Magistrate sitting at Harare on 4 October 2017 ...
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HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

This is an application for review brought in terms of section 27 of the High Court Act [Chapter 7:06].The brief facts surrounding this application are as follows:On 22 November 2013, the Administrative Court granted leave to the applicant to file an appeal out of time against the second respondent's decision ...
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SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD
Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

The court in Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) said as follows:"A court order stands and must be strictly obeyed until set aside by a higher court, and the same court which granted the original order does not have the right to nullify its effect ...
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SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

On 9 April 2021, I struck off this matter from the roll and gave reasons extempore. The applicant has requested for written reason for my decision. These are the reasons.In this application, the applicant seeks to challenge the decision of the High Court handed down on 3 May 2018 dismissing ...
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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

MAKARAU AJCC:IntroductionOn 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.The two applications, filed separately, and on different dates, were brought in ...
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CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

This matter was heard on 13 January 2016 with judgment being reserved.On 27 January 2016, this court determined, that, in view of the fact that this case raises similar issues as that of Farai Lawrence Ndlovu Anor v The Minister of Justice Legal Parliamentary Affairs, Constitutional ...
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SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.Essentially, in this, and the previous two applications, the applicants are requesting this Court ...
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HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

On 18 September 2018, the applicant filed a court application for review seeking the following relief spelt out in the draft order:“1. The decision of the first respondent in which she made an order for the rescission of default judgment in court case number 127/18 in favour of second respondent ...
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HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

It has been said that;“…, where the judgment sought to be rescinded was given in default; no question of a final judgment having been given on the merits can arise. Hence, no considerations of functus officio or res judicata apply to thwart an application for rescission. In such a case, ...
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