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Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and ...
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HH181-12 : JENNIFER NYAMAKURA vs AGRIPPA MUZENGI
Ruled By: CHITAKUNYE J and MAWADZE J

This is an appeal against the judgment of the Harare Magistrates Court delivered on 17 February 2010 in which the court a quo granted the following order:-“Custody of the two minor children is hereby awarded to the respondent with the appellant having reasonably access.”The facts giving rise to this appeal ...
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HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

A court cannot resolve a dispute that has not been brought before it for specific relief.
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HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

The respondent, that is to say the Reserve Bank of Zimbabwe is a body corporate established in terms of the Reserve Bank Act [Chapter 22:15]. Its function, among others, include acting as the Exchange Control Authority in terms of the Exchange Control Act [Chapter 22:05] as read with the Exchange ...
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HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

On 23 May 2005, the respondent issued summons out of Marondera Magistrates' Court. Her claim against the defendant, as it appears on the face of the summons, is recorded as “sharing property”. An affidavit was attached to the summons, curiously titled, in my view, as “Applicant's supporting affidavit (Property Sharing)”.In ...
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Appealed
SC04-12 : SHAUN EVANS and PAUL FRIENDSHIP vs YAKUB SURTEE and COLLIN MACMILLAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

On 19 May 2009, the High Court (BHUNU J) granted an order in favour of the first respondent in the following terms:“1. The defendants, jointly and severally, the one paying the others to be absolved, deliver to the plaintiff 47,500 litres of fuel within forty-eight (48) hours of service of ...
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HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO
Ruled By: MUTEMA J

On 29 March 2011 I dismissed, unconditionally, an application for summary judgment by the applicant.On 4 May 2011, I dismissed a chamber application for leave to appeal to the Supreme Court against the order dismissing the application for summary judgment. The application for the leave to appeal had been made ...
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HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.The letter of explanation was ...
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HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA
Ruled By: MUSAKWA J

Counsel for the respondent submitted that..., the law recognizes two types of orders. There is what is termed a constitutive order which confers rights to one party and imposes obligations on the other party. The other order is declaratory as it does not confer rights but states what the position ...
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HH61-10 : WILLIAM WACHENUKA vs JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED and MINISTRY OF LANDS AGRICULTURE AND RESETTLEMENT
Ruled By: BERE J

There are various options available which a party desiring judgment to be pronounced soon must initiate.
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HH76-10 : ROSEMARY CHINJAYANI vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE and DETECTIVE INSPECTOR MUKOSI
Ruled By: UCHENA J

Both counsel agreed that the issue of the granting of an application for a warrant for seizure of the applicant's motor vehicle will be the subject of separate litigation. That, however, does not affect the determination of this case as the parties in this application only dealt with the seizure of the motor vehicle without ...
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SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

This appeal, from the judgment of the Labour Court, raises the issue whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a Collective Bargaining Agreement between the parties.Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be ...
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SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:1. The appeal is allowed with costs.2. The judgment of the Labour Court is hereby set aside and substituted as follows:(i) The appeal is dismissed with costs.(ii) The appellant shall reinstate the respondent to ...
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SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.The factual circumstances of this matter are common cause.The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He ...
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Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:(i) Payment of the sum of US$750,000.(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of ...
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HH243-10 : COMMERCIAL WORKERS UNION OF ZIMBABWE vs TASARA ZVANDASARA and GILBERT KARIKUIMBA
Ruled By: UCHENA J

Judicial officers must check and ascertain the legality of orders before granting them.
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HB122-11 : ESSIE NCUBE vs BRIAN NGWENYA and RHODAH NGWENYA
Ruled By: NDOU J and MATHONSI J

The late Ntongayabo Abel Ngwenya was a polygamist who was married to both the appellant and the second respondent in terms of the Customary Marriages Act [Chapter 5:07], he having married the second respondent in 1952 and the appellant, customarily, in 1970, before registering that marriage in 1997. He died in Bulawayo in 2008 ...
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HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

As stated in Mandava v Chasweka HH42-08 (as yet unreported)…,;“All Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures. It is trite that the pre-setting of rules of procedure is, to date, the widely accepted manner of avoiding ...
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HHB21-11 : STATE vs NOMPUMELELO MPOFU
Ruled By: MATHONSI J and NDOU J

In considering sentence, the magistrate converted the United States Dollars to South African rands and came up with a total of ZAR12,000= as the value of the prejudice. It is not clear why he saw it fit to make the conversion, which must have been at a rate of 1 US$ to 10 ...
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HH178-14 : WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED vs PERUKE INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR JUSTICE (Ret) A. R. GUBBAY SC
Ruled By: ZHOU J

The first respondent, on the other hand, objected in limine to the application on the basis that it was filed out of time. The first respondent contended that the arbitral award was ready for collection by the parties on 25 February 2011 when a letter was addressed to the applicant's legal practitioners by the Secretary ...
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SC43-14 : STREAMSLEIGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

It was argued that the manner in which the eviction order was framed did not put the appellant at risk of being evicted at the instance of the respondent, a factor which appears to have escaped the notice of the learned judge. An order for the eviction of African Medical Investments Plc would not ...
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SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.The claim against the appellant arose from a Service Provider Agreement concluded ...
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SC12-16 : AFARAS MTAUSI GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

In a judgment handed down on 16 April 2014, the High Court made an order setting aside the decision of the appellant refusing the request made by the respondent for leave to institute civil proceedings against SMM Holdings (Pvt) Ltd. The court further granted leave to the respondent to institute the proceedings and ordered ...
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SSC33-16 : ELPHAS NCUBE vs THE STATE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

I turn next to the question of sentence. In passing sentence, the learned judge before whom the appellant, for purposes of having sentence passed, did not give reasons for the sentence meted out to the appellant. A failure to give reasons for sentence or an order is a gross irregularity and thus amounts ...
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SC53-16 : PG INDUSTRIES (ZIMBABWE) LIMITED vs MARK BVEKERWA and 34 OTHERS
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

Counsel for the appellant contended before us that the absence of reasons for the judgment constitute an irregularity such as to justify interference with the judgment of the court a quo by this court. I agree. In Muchapondwa v Madake Ors 2006 (1) ZLR 196 (H)…, KARWI J said: “The ...
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SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

It was submitted that some of the individual applicants and other former owners or occupiers of acquired land have court orders issued by the Magistrates Courts and the High Court authorising their occupation of acquired land after the prescribed period. If such orders were issued, they would have the effect of authorising the ...
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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 or not the court a quo erred by not determining whether or not there were disputes of fact which could not be resolved through the application procedure? The purpose of litigation is for the court to determine disputes placed before it by the parties. The court must therefore give reasons stating how it resolved ...
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SC47-17 : BAREND VAN WYK vs TARCON (PRIVATE) LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

Lastly, comment is called for on the remark by the court a quo that the claim was founded on an employment dispute. The appellant, as plaintiff, had predicated his cause of action on a stated or agreed amount. Once he failed to prove that the amounts were agreed, then that was the end of ...
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HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL
Ruled By: MATHONSI J

Courts of law are there to adjudicate disputes on the merits. While matters may be disposed of procedurally; in my view, a definitive determination of the merits should be the first prize.
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HB112-16 : ZIMBABWE REVENUE AUTHORITY vs SIKHANYISIWE MPOFU and CHRISTIAN NDLOVU and T. TASHAYA N.O.
Ruled By: MATHONSI J

ULRIC HUBER, Jurisprudence of My Time…, put it very well when he said: “The duty of the judge is, in general, to give his decision according to the dictate of the law and custom…,. Everything, therefore, which is done by a judge contrary to the precepts of the law or the established essentials of a transaction is ipso facto and ...
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HHH75-15 : THE STATE vs TATENDA TAKAWIRA and TITOS MUKANGA
Ruled By: MATHONSI J and MAWADZE J

Nothing underscores the importance of giving reasons for sentence more than the above-cited passage of the record. It is imperative that reasons for any decision, including sentence, be given to show that the judicial officer has heard the evidence and arguments for each side and has not taken into account extraneous considerations: S v Mkali ...
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SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...
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HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

Rule 165(1) of Order 24…, requires the respondent to comply with the order dated 25 November 2013. As for the substantial compliance ground, I hold the view that there is nothing of such a nature where a court issues a clear and unambiguous order as here….,.
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SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Whether or not a court can grant an order not sought by the parties? Counsel for the appellants, citing authorities which will be analysed below, submitted that the court a quo erred and misdirected itself when it granted relief which had not been sought by either party. Counsel for the first respondent and counsel for the fourth respondent supported the ...
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HB235-16 : ESTATE LATE MOSES KANHUKAMWE (represented by Winnie Mudzinganyama curator bonis) vs CBZ BANK LTD and I.Q. MARKETING (PVT) LTD and THE ADDITIONAL SHERIFF – BULAWAYO
Ruled By: TAKUVA J

Rule 240 of the High Court Rules 1971…, states; “240 Granting of Order At the conclusion of the hearing or thereafter the court may refuse the application or may grant the order applied for, including a provisional order, or any variation of such order or provisional order, whether or not general or other relief has been asked for and may ...
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HB237-16 : PETROS MOYO vs ROBERT NCUBE
Ruled By: BERE J and MATHONSI J

In Mathuthu v Chegutu Municipality Others HH502-14 I said that: “The authority, dignity and respect of courts of law should never be demeaned, prejudiced or undermined. It behoves the subject to bow to the decision of the court, and, where there exists a remedy, to then pursue that remedy elsewhere. This is extremely important for the proper ...
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HH278-17 : DAVID LUWO and ROSE LUWO vs DOWOOD SERVICES (PVT) LTD and RAILING ENTERPRISES (PVT) LTD
Ruled By: MOYO J

At the hearing of this matter I dismissed it by consent with costs at the legal practitioner and client scale. I was then served with a letter requesting for reasons. Here are the reasons.
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HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

Significantly, however, there is nothing to show what evidence was placed before the first respondent to enable him to come to the conclusion that the third respondent was the deceased's wife…,. The conclusion by the first respondent that the deceased had two wives is therefore not based upon any evidence which was placed before him. That is ...
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HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE
Ruled By: ZHOU J

After hearing argument from counsel I granted the relief sought with some amendments to the draft order and gave brief reasons. I indicated to the parties that my full written reasons would be given upon the request of either party. The first respondent has written a letter requesting to be furnished with the written reasons for the ...
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HH336-14 : IGNATIUS CHOMBO vs MARIAN CHOMBO (NEE MHLOYI)
Ruled By: MANGOTA J

The defendant cited the Constitution of the country and the ruling party's manifesto, the contents of which documents she said supported the proposition that women should be treated on an equal footing with men when it comes to the distribution of the country's natural resources - including land. She also made reference to statistics which emanated from ...
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HH720-14 : PANDHARI LODGE (PVT) LTD and SUNDAY CHIFAMBA and SWISIDAYI NYAMUFUKUDZA vs CENTRAL AFRICA BUILDING SOCIETY and DEPUTY SHERIFF
Ruled By: MANGOTA J

The courts, as an institution, should dispense justice instead of injustice.
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HH161-15 : MCR VENGESAYI and AGNES VENGESAYI T/A VENGESAYI ARHITECTS vs BELVEDERE NURSING HOME (PRIVATE) LIMITED
Ruled By: DUBE J

Where a court has made a ruling or order on any matter whatsoever, that ruling stands until rescinded by a competent order of court or is upset by a court of appeal. It is unprofessional and discourteous for a legal practitioner to ignore such a ruling and precede and pretend as if that ruling does ...
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HHH778-15 : WILSON MUKARONDA ZUNIDZA vs THE STATE
Ruled By: CHIWESHE JP and HUNGWE J

A court must always pay due regard to the language it uses in giving reasons for any decision. To use what might be termed “extravagant language” may lead to a conclusion that the court was swayed by considerations extra-judicial. I make mention of this because, in the present case, the learned trial magistrate remarked that this crime ...
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HHH170-15 : THE STATE vs GIBSON MURINDA
Ruled By: MUSAKWA J and DUBE J

This record was referred to me from the Acting Regional Magistrate for Harare who scrutinised the record. He has raised the following concerns; “The trial court, as part of its sentence, prohibited the accused from driving for two years on the basis that accused had driven a public service vehicle. This is in spite of the fact ...
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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

Court proceedings are not a game of chess. They are a serious inquiry into and determination of the rights of the participants in the proceedings.
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SC26-18 : T. M. SUPERMARKETS (PRIVATE) LIMITED vs ITAYI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI
Ruled By: GARWE JA, GOWORA JA and BERE AJA

The failure by a court to appreciate the issues before it is a just cause for setting aside its order.
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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

Although the Attorney General abandoned the preliminary points, the issues nevertheless remained live, and, in my view, should nevertheless have been dealt with by the court a quo. The court should have asked itself how it was possible, considering the relief the appellants were seeking, for the appellants to approach the court in terms of section ...
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CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

Section 2 of the Constitution makes the Constitution the supreme law of the land. In this regard, section 3 of the Constitution provides for the values and principles which should guide all institutions and persons in Zimbabwe. Section 85(1) ought, therefore, to be understood in the context of section 3 of the Constitution. The most ...
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HH281-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

It does not assist the applicant that he is a legal practitioner of some standing. He was, at one point, the adviser to the Government before the National Prosecuting Authority was made into an independent entity, which he now heads. He is expected to understand; (i) That cases are decided in accordance with the law and ...
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CC14-19 : GARIKAI KAMANGA vs PRINCE EDWARD SCHOOL – SDA
Ruled By: MALABA CJ and GARWE JCC and MAKARAU JCC

In the applicant's founding affidavit filed of record, he made allegations to the effect that the decision of the court a quo was incorrect. He indicated that the court a quo: “…, should have interpreted the word 'judgment' in section 19(3)(b) of the Prescription Act in a way that would least intrude on the applicant's right to ...
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