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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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HH63-12 : PHILLIP MUDZIVIRI (as Executor Dative of the Estate Late Lovemore Ngwende) vs OLIVER MASOMERA
Ruled By: MUTEMA J

At the hearing of the application I dismissed it with costs. The applicant has requested for written reasons for the dismissal. These are the reasons:-
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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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HH36-08 : MASIMBA KUCHERA and MICHAEL MUZA and TAFADZWA RUGOHO vs MINSTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA J

This matter was filed as an urgent chamber application in terms of Rule 241 of the High Court Rules. The applicants were seeking the following urgent relief:“Pending the confirmation or discharge of the provisional order, the following provisional order is granted:1. The Presidential Powers (Temporary Measures) (Amendment of Electoral Act) ...
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HH119-09 : ISAAC MANDI vs GRACE MCHICHWA (as Executrix Dative Estate Late Peter Kandeya) and RUWA LOCAL BOARD and MINISTRY OF LOCAL GOVERNMENT
Ruled By: GOWORA J

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they.
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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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SC10-14 : OLIVER M. CHIDAWU and BROADWAY INVESTMENTS PL and DANOCT INVESTMENTS PL and DANNOV INVESTMENTS PL vs JAYESH SHAH and TN ASSET MANAGEMENT PL and ISB SECURITIES PL and TWO OTHERS
Ruled By: CHIDYAUSIKU CJ

This is an urgent Chamber application in which the applicants seek the relief set out in the draft order. The draft order reads as follows:“1. The Registrar is hereby directed to set down case no. SC 293/11 for an urgent hearing on the next available date.2. The applicants shall file heads ...
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SC02-15 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED vs INTERFIN SECURITIES (PRIVATE) LIMITED
Ruled By: MAVANGIRA AJA

On 14 November 2014, I granted an order in the terms sought by the applicant and gave my reasons to the parties in chambers. Written reasons have now been requested. The following are the reasons for my decision.
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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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HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

On 20 August 2010, I dismissed this application with costs. The applicant has now placed before me a written request for the full reasons behind my dismissal of its application. The applicant says it needs the reasons because it intends to file an appeal in the Supreme Court urgently. I ...
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HB45-11 : DAVID MATSITSIRO vs CHAMUNORWA MUSINDO
Ruled By: KAMOCHA J

This matter was handled in very cavalier fashion by the applicant's erstwhile legal practitioners. The present legal practitioners were trying to rectify the many errors made by the previous lawyers. The new lawyers had, however, not made a formal application for condonation. Counsel for the applicant then made an oral application for condonation which was opposed. I, ...
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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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HB17-10 : NQOBANI SITHOLE vs SENIOR ASSISTANT COMMISSIONER – OFFICER COMMANDING POLICE – MAT. SOUTH PROVINCE – N. SIBANDA and COMMISSIONER GENERAL and THE MINISTER OF HOME AFFAIRS
Ruled By: NDOU J

I dismissed this application with costs. The applicant seeks full reasons for the dismissal. These are they.
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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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HB34-10 : BEAUTY DUBE vs MATHEW JOSEPH MADZUKUTURE and PROVINCIAL MAGISTRATE N.O.
Ruled By: KAMOCHA J

The applicant in this matter was seeking for an order in the following terms - “It is ordered that: (a) Applicant's late filing of this review application be condoned; (b) On review, the judgment of the Provincial Magistrate under case CC383/94 (local courts) is quashed and rescinded and in its place, an order be made referring the case to ...
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HB45-10 : JAMESON ZOWA vs SUSAN ZOWA
Ruled By: KAMOCHA J

The applicant in this matter sought an order in the following terms:- “It is ordered: 1. That the order of this honourable court made on the 4th day of December, 2008 be rescinded and the following substituted: (a) A decree of divorce be and is hereby granted to the plaintiff. (b) The parties proceed on trial of the division of ...
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HB46-10 : IRENE MASANGO vs ZANELE SIBANDA N.O. and ASSISTANT MASTER
Ruled By: KAMOCHA J

The applicant in this matter was seeking the rescission of this court's judgment granted on 19 November, 2009 under case number HC274/09. Further, she sought leave of the court to file her opposing papers within five (5) days of the order being granted. If the first respondent opposed the application she would be liable to ...
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HB75-10 : RUTH NYATHI vs HILDA MHLANGA and BULAWAYO CITY COUNCIL and DEPUTY SHERIFF, BULAWAYO
Ruled By: KAMOCHA J

On 27 August 2007, one Fefa Michael Moyo – who was being represented by his wife Ruth Nyathi – the applicant, entered into a Memorandum of Agreement of cession with the first respondent Hilda Mhlanga wherein she bought the rights, title and interests of Fefa Michael Moyo in the property known as Stand 3174 ...
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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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HB120-10 : SIBUSISIWE MSIMANGA vs SIBONGILE SIBANDA
Ruled By: CHEDA J

On the 3rd September 2010, I heard this application and delivered an ex tempore judgment and thereafter asked any of the parties to request for written reasons should they want to. Counsel for the respondent has so requested and these are they. This is an application seeking the eviction of the respondent. The applicant and the ...
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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

I heard the matter on an urgent basis on 25 April 2013. After argument, I dismissed the application with costs for lack of urgency and lack of merit. I gave my reasons ex tempore. On 26 April 2013, the applicants' legal practitioners wrote to seek the reasons for my decision. The letter ...
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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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HB78-13 : ALFRED MPFUMBATWA vs BARBARA MURASIRANWA and EDGAR MBWEMBWE and REGISTRAR OF DEEDS and VICTORIA FALLS CITY COUNCIL
Ruled By: KAMOCHA J

This is an application for rescission of a judgment granted to Barbara Murasiranwa on 16 October 2008 wherein she was declared the owner of Stand Number 4935 Chinotimba Township, Victoria Falls. The respondents in that case were directed to do all things necessary to transfer Stand Number 4935, Chinotimba Township, Victoria Falls into the name ...
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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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HH188-14 : XAVIER P MAKUMBINDE vs KUDZAI RUZVIDZO and JOEL MAZANHANGA
Ruled By: MAFUSIRE J

The applicant sought an order nullifying the sale of a certain vehicle by the first respondent to the second respondent. At the end of the hearing I granted the order sought in terms of the draft. The order read as follows: “1. The agreement of sale by and between the 1st and 2nd Respondents in respect ...
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HH192-14 : LOVENESS MASEKO vs ESTATE LATE PHILLIP MUNEMO and PROSPER MUNEMO and EVANS MUNEMO and PORTIA MUNEMO and CHITUNGWIZA MUNICIPALITY and MASTER OF HIGH COURT
Ruled By: MAKONI J

At the conclusion of the hearing, I gave an ex tempore judgement.The respondents have appealed against the judgment and require written reasons. These are they.
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HH561-14 : JULIAN TINOTENDA MADONDO and MILLICENT NYARAI MEZA vs CECIL MADONDO
Ruled By: UCHENA J

After hearing submissions from both parties, I postponed the case to 18 July 2014 when I gave an ex tempo judgment based on the notes for judgment I had recorded in my notebook in which I dismissed the applicant's application with no order as to costs. I have now, by letter dated 2 September 2014, ...
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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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SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Supreme Court Rules.This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers ...
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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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SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...
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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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SC47-16 : PROFESSOR CHETSANGA and COLLIN KUHUNI and MONICA MUKONOWESHURO vs PATTERSON TIMBA and RENAISSANCE FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

This is a matter in which two separate appeals, involving the same parties and the same judgement appealed against, were consolidated for hearing and disposition. The appeals in question are under case nos. SC66/16 and SC80/16. After hearing counsel in the matter, the Court delivered a unanimous ex tempore judgment disposing of both appeals. That ...
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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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Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017. The appellant wrote to the Registrar requesting the reasons for the ...
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