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Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings

SC33-08 : DR ANNAMORE JAMU vs CITY OF HARARE
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against a judgment of the Administrative Court refusing the appellant special consent to establish a residential clinic with a capacity for fifteen beds at her surgery at Stand 17330 Harare Township of Salisbury Township lands, otherwise known as 42 Duiker Crescent, Borrowdale West (“the premises”).The appellant ...
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Appealed
SC15-09 : MASIYIWA CLEOPAS GONYE vs STELLA MARIS GONYE
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

For this Court to interfere with the exercise of discretion by the court a quo, it had to be shown that one of the grounds upon which an Appellate Court may interfere with the exercise of discretion by a trial court existed. In Barros Anor v Chimphonda 1999 (1) ZLR 58 (S) GUBBAY CJ…, said: “These grounds ...
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SC14-12 : HILDA TENDAI MATARIRA vs CAXTON HENRY MATARIRA
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

Although the appellant, in her Notice of Appeal, had raised five grounds of appeal, at the hearing of this matter, counsel for the appellant confined himself to two grounds. These are, firstly, that the court a quo misdirected itself in awarding a property known as the Aspen Flat to the respondent as compensation for his ...
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HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

This is an appeal against the decision of the Chitungwiza magistrate handed down on 25 March 2009, awarding the appellant 15% of the value of the immovable property acquired by the parties during the subsistence of their four year unregistered customary law marriage.The plaintiff listed her grounds of appeal as ...
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SC06-12 : INNSCOR AFRICA (PVT) LTD vs LETRON CHIMOTO
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

A principle has now been firmly established to the effect an Appellate Court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court. In this case, the Labour Court did not even appreciate that it was dealing with a ...
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SC03-12 : Z B FINANCIAL HOLDINGS vs MAUREEN MANYARARA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

This is an appeal against that part of the judgment of the Labour Court by which it set aside the decision of the initial hearing by the appellant to dismiss the respondent from employment following a finding of misconduct in that she participated in an unlawful collective job action on ...
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SC21-09 : ZIMBABWE EXPRESS SERVICES (PRIVATE) LIMITED vs NUANETSI RANCH (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and GARWE JA

This is an appeal against the decision of the High Court dismissing with costs the appellant's claim for delivery of two hundred heifers and two hundred steers. The background to this matter is as follows; At the relevant time, Nuanetsi Ranch (Pvt) Ltd (“the respondent”) was one of the largest cattle breeders in the country. During 2003, the respondent ...
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SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS
Ruled By: ZIYAMBI JA

Grounds two and four can be determined on the same basis. Since the court cannot be faulted in its finding that by obtaining permanent employment the applicant had repudiated his employment contract, the prospects of the Supreme Court holding that the Labour Court erred in concluding that only damages in lieu of reinstatement were due ...
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SC27-09 : CLAUDIUS MURAWO vs GRAIN MARKETING BOARD
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

This is an appeal against a judgment of the Labour Court which dismissed an appeal by the appellant (“Murawo”) against the termination of his contract of employment by the respondent, the Grain Marketing Board (“the GMB”).The background facts are as follows:Murawo was employed by the GMB as a Safety, Health ...
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HH93-12 : AUGUSTINE RUSIKE AND REGIS RUSIKE vs MODIE MALIMAO
Ruled By: GUVAVA J and MAWADZE J

This appeal is sorely based on a dispute of fact rather than law. The law is clear on the basis or grounds upon which the appellate court would interfere with the exercise of judicial discretion on a dispute of fact. These grounds are set out in the case of Barros Another v ...
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HB01-09 : JOHN MLILO vs TSEPO MOLISA
Ruled By: KAMOCHA J and NDOU J

The appellant contended that the learned trial magistrate erred in making a finding that the appellant should handover the four cattle to the respondent. It is common ground that..., the respondent purchased four herd of cattle from the appellant...,. The total purchase price was paid in full. However, the respondent did not immediately collect the beasts, ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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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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Appealed
SC20-14 : H. J. VORSTER (PRIVATE) LIMITED vs SAVE VALLEY CONSERVANCY
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

This is an appeal against the judgment of the High Court refusing condonation for the late filing of an application for rescission of default judgment. Both the applications for condonation and rescission were heard together. The court a quo correctly took the view that the main application could only be dealt with after the application for ...
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SC24-13 : VYVYAN JEAN MORONEY vs MICHAEL PATRICK MORONEY
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

This is an appeal against part of the judgment given by the High Court in an action for a decree of divorce and ancillary relief commenced by the respondent against the appellant. The question for determination is whether or not, in making the order with regard to the division, apportionment or distribution of the assets ...
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SC73-14 : MUSA JOHNSON KWEDZA vs CHRISTINE KWEDZA (NEE MARTIN)
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

After hearing argument from counsel, this Court dismissed the appeal with costs and indicated that the reasons for such dismissal would follow in due course. What follows are the reasons for that order. The appellant and the respondent were husband and wife. Owing to irreconcilable differences during the marriage, the respondent issued summons claiming a decree of ...
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SC59-14 : PHARAOH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: GARWE JA, GOWORA JA, and OMERJEE AJA

In August 2005, the appellant, as plaintiff, issued summons in the High Court in which he sought an order setting aside the appointment of the first respondent as Chief Nyajina–designate and a further order directing the second and third respondents to take into account and abide by the values, traditions and customary principles of the ...
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SC07-15 : CHRISTOPHER SAMSON vs WINDMILL (PRIVATE) LIMITED
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

The appellant was employed in the capacity of Plant Foreman in the handling department of the respondent company. In September 2010, he was charged with; “(1) Theft or fraud; (2) aiding stealing, alternatively; and (sic) (3) any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of your contract.” ...
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Appealed
SC24-15 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and SEVEN OTHERS
Ruled By: MALABA DCJ, GARWE JA and MAVANGIRA AJA

On the day of the hearing, we allowed the appeal with costs and indicated that reasons for the decision were to be availed in due course. These are they. This is an appeal against the High Court decision dismissing a claim for an order of eviction of the respondents by the appellant (hereinafter referred to ...
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HB42-13 : LILIAN MOYO vs DOUGLAS CHIDUMO
Ruled By: NDOU J and KAMOCHA J

It is trite that where the trial court has reached no findings at all on the credibility of witnesses to vitally important incidents, the appellate court has to do its best on such material as it has before it - Van Aswegen De Clercg 1960 (4) SA 875 (A)….,. This approach is applicable ...
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HB153-11 : JONA NDALAMA vs CHIEF SUPERINTENDENT – HAPPYMORE SIGAUKE and COMMISSIONER GENERAL – AUGUSTINE CHIHURI
Ruled By: NDOU J

I now revert to the merits of the application. What can be gleaned from the record of proceedings is that the allegations at the police trial were the following. On 9 October 2009, police (CID Minerals) Bulawayo arrested one Makadzange Mazarire for illegal dealing in gold. Although the applicant was not stationed at CID Minerals he ...
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HH217-14 : WINNIE MUZUVA vs RENIA MUSARA
Ruled By: MAVANGIRA J and TSANGA J

It is stated, further, in the above quoted judgment, that the appellant said that she had been informed that she was to appear in court after 30 days and that if this was so, then she was to have appeared in court sometime in April 2013 and not in May as she alleged. In her ...
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HH309-14 : TAFARA PANDE vs MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING and MAGISTRATE NDOKERA, N.O. and MESSENGER OF COURT/DEPUTY SHERIFF MASVINGO
Ruled By: MATHONSI J

I am also mindful of the fact that at no point during the proceedings in the Magistrate's Court did the applicant present any defence on the merits which include the fact that he has not been paying rent; a point in which the Magistrate made a finding. He was content to fashion a defence merely ...
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Appealed
SC06-11 : DARREN STEWART THORNTON vs KATHLEEN ENID THORNTON
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

The learned Judge, after full consideration of the matter, reasoned as follows: “The onus is also on the applicant to justify the granting of the claim that she seeks. In casu, the onus is particularly pertinent as regards the quantum of such maintenance. No direct or concrete evidence has been adduced to justify the contribution ...
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SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

The respondent also filed a cross appeal, not against the final order made, but against the findings by the court a quo that the other breaches of the lease agreement had not been proved and that the respondent had not shown it genuinely required the premises for its own use. At the hearing of the ...
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SC07-13 : CLADIUS CHENGA vs VIRGINIA CHIKADAYA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

On the first issue, it was the submission of counsel for the appellant that the court a quo misdirected itself in finding, on the evidence adduced, that the appellant was a mala fide purchaser. This was a finding of fact. It is trite that an appellate court will not interfere with a decision of ...
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SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The arbitrator made a finding of fact that the University was closed during the period in question, i.e. from October 2008 to August 2009. It is contended, on behalf of the appellant, that the learned President in the court a quo suggests no justifiable basis for impugning the arbitrator's finding on fact. It is ...
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Appealed
SC07-14 : TEEJAY SIBANDA vs HILDA M SIBANDA
Ruled By: GWAUNZA JA, GARWE JA and GOWORA JA

THE NINETY FIVE (95) HERD OF CATTLE AT THE INYATHI FARM AND THEIR PROGENY The appellant claims that the court a quo misdirected itself by apportioning 50% of the cattle to the respondent “without any basis for such an award.” He further claims that in any case, most of the cattle belonged to his daughter Nomalanga ...
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HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

As regards the findings on the first respondent's suitability, MAKONESE J's judgment, as shown above, is very clear on the reasons he came to that conclusion.I would add that, in my view, the matter is simply that the first respondent has not produced an account of how the funds were utilized over the years he ...
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Appealed
SC79-14 : DOUGLAS TANYANYIWA and DOUGLAS WARRIORS FOOTBALL CLUB vs LAWRENCE BERNARD GWARADA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

THE EVIDENCE The respondent's evidence was to the effect that he had known the first appellant since 2002 through his football club, the second appellant. Initially, he was a supporter of the second appellant but later became the treasurer of the second appellant for almost five years until 2008 when the first appellant broached the idea ...
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SC41-13 : AUSTIN MUNYIMI vs ELIZABETH TAURO
Ruled By: CHIDYAUSIKU CJ, GARWE JA and OMERJEE AJA

In any event, Rule 449 involves the exercise of a discretion. It has not been shown that the exercise of such discretion was in any way irrational.
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SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

On 25 July 2011, the High Court at Harare granted an order in the following terms: “FINAL RELIEF SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms:- 1. Pending the determination of the dispute between the parties by the process of Arbitration in terms of ...
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SC12-14 : ANTHONY MAKINTOSH vs THE CHAIRMAN, ENVIRONMENTAL MANAGEMENT COMMITTEE OF CITY OF HARARE and CITY OF HARARE
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

It was contended on behalf of the respondents that a decision by the Administrative Court, in terms of section 38 of the Regional Town and Country Planning Act [Chapter 29:12] involves the exercise of a discretion and that this Court, as an appeal court, could only interfere with the exercise of a discretion by ...
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SC29-14 : PAUL SIMANGO vs MARTHA SIMANGO
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

Before considering the appellant's grounds of appeal in detail, it is pertinent to note that in arriving at the various awards that it made, in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13], the court a quo used its discretion. It is in this respect correctly argued, for the respondent, that it ...
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SC40-14 : MINE MILLS TRADING (PRIVATE) LIMITED and CHARLES CHISANGO and KEVIN MAKONI vs NJZ RESOURCES (HK) LIMITED
Ruled By: MALABA DCJ, GOWORA JA and GUVAVA JA

This is an appeal against the whole judgment of the High Court dated 9 October 2013. At the hearing of the matter it was the view of the court that the appeal lacked merit and it was dismissed with costs. We advised that the full reasons for our decision would follow. These ...
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SC03-15 : PORTLAND HOLDINGS LIMITED vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

Being a Court of Appeal, this Court cannot interfere with the exercise of judicial discretion by a lower court except in very limited circumstances. Counsel for the parties in this case have advocated two approaches to the manner of determining the appeal. The approach favoured by counsel for the appellant is set out in Crouch v ...
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SC04-15 : AGSON MAFUTA CHIOZA vs SMOKING WILLIAMS SIZIBA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

Whether the court erred in finding that the purchase price of the property was paid in full to the appellant. The court a quo made factual findings in this regard. The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been such ...
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Appealed
SC08-15 : TENDAI SAVANHU vs HWANGE COLLIERY COMPANY
Ruled By: ZIYAMBI JA, GOWORA JA and MAVANGIRA AJA

In his grounds of appeal, the appellant persisted in his stance that he had raised and established a valid 'defence' in the court a quo, namely, the existence of 'a custom or practice or agreement between the parties entitling the appellant to retain possession of the vehicle in question.' That he raised the 'defence' ...
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SC09-15 : INTER-AGRIC (PRIVATE) LIMITED vs ALLAN MUDAVANHU AND TWELVE OTHERS
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

The arbitrator found that the appellant had given the respondent less than two days' notice of the hearing contrary to the requirements of S.I.323 of 1993. It was the finding of the arbitrator that the respondent had been given less than the required notice in complete disregard of the notice period required under the ...
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SC12-15 : METALLON GOLD ZIMBABWE vs GOLDEN MILLION (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

GROUND 4: FACTUAL FINDINGS It is settled that an appellate court will not interfere with factual findings made by a trial court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave ...
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SC28-15 : ZINWA vs JOSEPH MWOYOUNOTSVA
Ruled By: ZIYAMBI JA, GWAUNZA JA and HLATSHWAYO JA

THE BACKGROUND TO THE APPEAL The respondent was employed by the appellant (alternatively referred to as “the Authority”) as an accountant. On 5 January 2011, he appeared before a disciplinary hearing of the appellant on two charges of misconduct, the first being that he had committed an act or conduct inconsistent with the terms of his ...
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SC31-15 : WECTOR ENTERPRISES (PRIVATE) LIMITED vs LUXOR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and MAVANGIRA AJA

In any event, Rule 449 is not mandatory but confers upon the Court a discretion to act in terms thereof. There being no allegation, or finding by this Court, that there was an improper exercise of its discretion, this Court would be unable to interfere with the judgment of the court a quo.
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SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

4. Whether the court erred in refraining from dismissing the appeal and bringing finality to the matter. As submitted on behalf of the appellant, the court a quo found that there was evidence which proved, on a balance of probabilities, that the respondent had stolen the thrust bearing. In this regard, the court said: “On ...
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SC22-16 : MICHEAL HENRY BROWNE vs TANGANDA TEA COMPANY
Ruled By: ZIYAMBI JA, GWAUNZA JA, PATEL JA

The appellant further challenges the Labour Court's endorsement of the disciplinary hearing's positive findings on the credibility of Eulater Makuyana as a witness. It is stated as follows in paragraph 5.1 of appellant's grounds of appeal; “The hearing officer did not address the credibility of Eulater Makuyana at all, contrary to the comments of the ...
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SC22-17 : EDWARD MISIHAIRAMBWI and 14 OTHERS vs AFRICARE ZIMBABWE
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

This is an appeal against a judgment of the Labour Court which struck off the roll an appeal, by the appellant, against an arbitral award on the grounds that the appeal was not based on points of law contrary to the provisions of section 98(10) of the Labour Act [Chapter 28:01]. The appellant alleges, ...
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SC27-17 : PHILLIP NDLOVU N.O. vs COMMERCIAL BANK OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: GWAUNZA JA, MAVANGIRA JA and UCHENA JA

I am aware that, in terms of section 222(3) of the Companies Act [Chapter 24:03], the court is entitled to make such order as “it thinks.” Section 222(3) of the Companies Act [Chapter 24:03] reads: “(3) Any person aggrieved by any act or decision of the liquidator may apply to the court, after ...
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SC39-17 : FRASER MUYAKA vs BAK LOGISTICS (PVT) LTD
Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

The appellant appealed against the decision of the Labour Court which upheld his dismissal from employment. In 2001, the appellant was employed by the respondent as a Warehouse Clerk in the Distribution Department. He rose through the ranks to the position of Distribution and Transport Manager, a position he held until 1 July 2013 when ...
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HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

The appellants were, according to a lease agreement they and the Estate late Givie Chizema signed, the respondents' tenants. The respondents are co- executors of the Estate late Givie Chizema. The appellant's were sued by the respondents in the Magistrate's Court. They entered appearance to defend and pleaded against the respondent's claim leading to the ...
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HB28-14 : DHERERAI MANYONI vs COMMISSIONER GENERAL OF POLICE and CHIEF SUPERINTENDENT KUNENE and CO-MINISTERS OF HOME AFFAIRS
Ruled By: MOYO J

The assessment of evidence remains the dominion of the trial court for the simple reason that the trial officer lives through the drama of the case and is better placed to determine the factual issues as well as issues of credibility. The Commissioner General of Police, on appeal, could only have interfered with the findings ...
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