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Pleadings re: Striking Out or Expunging of Claim, Defence, Counter Claim, Pleadings and Reinstatement of Plea

HH52-09 : NEIL BRUCE vs ECONET WIRELESS (PVT) LTD and CITY OF HARARE
Ruled By: OMERJEE J

The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority ...
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HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI
Ruled By: KAMOCHA J

On 14 May 2008 Sarah Mlangeni applied for and was granted an order in the following terms: “It is ordered that:- 1. The defendant's plea be and is hereby struck off. 2. Plaintiff be and is hereby granted leave to set this matter down on the unopposed roll. 3. Defendant be and is hereby ordered to pay today's costs.” The order was granted ...
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HH74-12 : MIKE BELINSKY vs TONDERAI CHIPERE
Ruled By: HUNGWE J

The defendant filed a special plea on 20 October 2008. The following facts constitute the basis of the special plea. 1. The respondent (plaintiff in the main matter, hereinafter called “plaintiff”) issued summons under case number HC190/08 claiming damages arising from a road traffic accident on 14 January 2008. 2. Pleadings were exchanged between the parties leading to ...
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HH132-09 : PINELONG INVESTMENTS (PVT) LTD vs THOMAS VALLANCE AND PARADDIGM TRUST (PVT) LTD
Ruled By: MAKONI J

On 24 September 2008, the applicant filed the present application whereby he seeks an order that the notice of appearance to defend filed in these proceedings, on 6 August 2008, be struck out and that the Registrar be directed to expunge it from the court record. He also seeks costs from both respondents jointly ...
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HH132-09 : PINELONG INVESTMENTS (PVT) LTD vs THOMAS VALLANCE AND PARADDIGM TRUST (PVT) LTD
Ruled By: MAKONI J

Having determined that the notice is irregular, the next issue is whether such notice should be struck off the record. Rule 48 of the High Court of Zimbabwe Rules (1979) provides that a defendant wishing to defend an action must enter an appearance to defend in the manner prescribed in the Rules. Rule 49 of the High Court ...
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HH62-10 : MOREBLESSINGS MAKOSA vs PATRICK MAKOSA
Ruled By: CHITAKUNYE J

When the matter was set down for a pre-trial conference the plaintiff could not avail herself. The matter was postponed on a number of occasions to enable the plaintiff to avail herself for the pre-trial conference – without success. Eventually, the pre-trial conference was held on 29 November 2009 without the plaintiff's attendance. When the matter was ...
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SC20-13 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY vs IGNATIUS RUVINGA
Ruled By: ZIYAMBI JA, GARWEJA and OMERJEE AJA

In the court a quo, the respondent was the plaintiff whilst the appellant was the defendant. The respondent issued summons against the appellant in the High Court for the following: “Payment of: (i) US$9,800= being the costs of replacing the motor; (ii) Payment of US$208,849= in respect of damages suffered as a result of the loss of the plaintiff's ...
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HH199-10 : Z. MEREKI vs FORRESTER ESTATE (PVT) LTD
Ruled By: MAKONI J

The applicant also avers that the judgment was erroneously sought and erroneously granted as the proceedings of the pre-trial conference were not done in terms of Rule 182(11). No oral application was made to strike out the applicant's plea. Rule 449 The applicant submits that the judgment could be set aside in terms of Rule 449 as ...
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HB26-10 : ZIMBABWE NATIONAL WATER AUTHORITY vs KARIBA MUNICIPALITY
Ruled By: NDOU J

The plaintiff sought and obtained a date for this pre-trial conference in terms of Order 26 Rule 182(4) of the High Court Rules 1971. Both parties were served with the notice of set down being 12 May 2010. In fact, it seems that it was the plaintiff who ensured that the parties are aware ...
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HB123-10 : EDGAR HOWERA vs HERBERT MUDZINGWA and NAOMI MUDZINGWA and DEPUTY SHERIF, KWEKWE and DIRECTOR OF HOUSING, MBIZO, KWEKWE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MATHONSI J

The first and second respondents took transfer of Stand 6300 Mbizo Township of Mbizo, Kwekwe, also known as Number 116/8 Mbizo Kwekwe, on 12 December 2002. When this happened, the applicant was already staying at the house he having bought it from the same individual who later sold it to the first and second ...
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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 applicant moved the court to strike out the opposing papers filed on behalf of the first respondent on the grounds, firstly, that the opposing affidavit is invalid, and, secondly, that the deponent to the opposing affidavit has no authority to represent the first respondent. The issue of the invalidity of the opposing affidavit ...
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HB201-11 : CABAT TRADE & FINANCE (PTY) LTD and SECURITY MILLS (PTY) LTD vs THE MOVEMENT FOR DEMOCRATIC CHANGE (MDC-T)
Ruled By: KAMOCHA J

PLAINTIFFS' APPLICATION TO STRIKE OUT The plaintiffs applied to strike out paragraph 5.2 of the defendant's plea and paragraph 1 of the defendant's special plea in bar, filed of record on 30 November 2009, as being bad in law, vague and embarrassing, disclosing no defence to the plaintiffs' claim for the following reasons:- Ex facie paragraph 5.2 ...
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HB94-16 : ARENEL SWEETS AND BISCUITS (PVT) LTD vs ALEXANDER FORBES RISKS SERVICES ZIMBABWE
Ruled By: MAKONESE J

On the same date the special plea in bar was filed, the defendant also filed a document headed 'Defendant's Notice of Exception and Application to Strike out.' The defendant makes the following averments in this document: “…,. Defendant hereby excepts to and applies to strike out the plaintiff's claim as set out in the summons and declaration ...
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Appealed
SC05-18 : JENNIFER BROOKER and ADRIENNE PIERCE vs RICHARD MUDHANDA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

Rule 140 reads: “140. Complaint by letter before applying to strike out or filing exception (1) Before - (a) Making a court application to strike out any portion of a pleading on any grounds; or (b) Filing any exception to a pleading; the party complaining of any pleading may state by letter to the other party the nature of his complaint and call ...
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HH148-15 : JUDITH NYOKA vs NYAMWEDA BUS SERVICE and ZIMNAT LION INSURANCE
Ruled By: MUSAKWA J

The defendant defaulted attending a pre-trial conference, hence the striking out of its defence.
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HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

The applicant has filed an application for maintenance in terms of the Wills Act [Chapter 6:06]. In particular, reliance was placed on the provisions of section 18 of the Wills Act. The relief sought by the applicant in the Draft Order is as follows:“IT IS ORDERED THAT:The estate of the ...
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HH177-15 : AFRASIA BANK ZIMBABWE LIMITED vs SIMBARASHE CHIDAKWA
Ruled By: TAGU J

Rule 182(11) provides a remedy to the party who attends the pre-trial conference against the defaulting party. The subrule says - “(11) A judge may dismiss a party's claim or strike out his defence or make such other order as may be appropriate if - (a) The party fails to comply with directions given by a judge ...
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Appealed
SC04-19 : LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS vs AFRICAN BANKING CORPORATION OF ZIMBABWE (PVT) LTD and ABC HOLDINGS (PVT) LTD
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

The respondents issued summons against the appellants out of the High Court, claiming the sum of US$4,634,547=72 together with interest thereon at the rate of 3 percent per annum from the date of summons to date of payment in full. The claim was not only defended but was also met with a counter-claim for US$2,1 million. When the appellants ...
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SC27-19 : SYNOHYDRO ZIMBABWE (PVT) LTD vs TOWNSEND ENTERPRISES (PVT) LTD and DAVID WHATMAN N.O. and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MAKARAU JA

It was contended, on behalf of the first respondent, that the applicant ought to have applied for the judgment against it to be rescinded in the court a quo as a default judgment. The basis of this contention is a statement by the applicant in its founding affidavit in the application for condonation contending that the effect of ...
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HH184-15 : ANDREW CRANSWICK vs RETIRED MAJOR GENERAL HAPPYTON BONYONGWE
Ruled By: ZHOU J

On 22 November 2011 the applicant's defence was struck out following his default at the pre-trial conference. The matter was then referred to be dealt with as an unopposed matter…,. Upon becoming aware of the striking out of his plea, the applicant made a chamber application under Case No. HC12658/11 for the setting aside of ...
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Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null ...
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SC78-20 : ADMIRE DAMANJERA vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

This is an appeal against the whole judgment of the Labour Court delivered on 14 July 2017 which dismissed with costs an appeal launched in that Court by the appellant against the decision of the respondent's Appeals Committee dated 20 July 2016.The Appeals Committee upheld the decision of the respondent's ...
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HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP
Ruled By: CHIKOWERO J

This is an opposed summary judgment application.The law on the relief of summary judgment is settled.In sum, it is to enable a plaintiff with a clear case to obtain quick judgment against a defendant who has no real defence against the claim.The plaintiff's claim must be unanswerable both on the ...
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SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

BACKGROUND FACTSThe respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first ...
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SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

The fourth ground of appeal invokes section 81(5) of the Constitution, a manifestly non-existent provision, and is obviously quite superfluous. It is accordingly struck out.
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SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

At the commencement of the hearing of the appeal, counsel for the appellant abandoned the first ground of appeal....,. Accordingly, the first ground is struck out and will not be related to in this judgment.
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HH552-15 : AMBASSADOR AGRIPA MUTAMBARA and ESTHER MUTAMBARA vs CONSTANTINE CHIMAKURE (EDITOR OF NEWSDAY NEWSPAPER) and ALPHA MEDIA HOLDNGS PL
Ruled By: MATANDA-MOYO J

Rule 138(a) of the High Court Rules enjoins a party who files a special plea, exception or application to strike out to set the matter down, with the consent of the other party, within ten days of filing of such special plea, exception or application to strike out in accordance ...
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HH776-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO WILLA CHIRENJE
Ruled By: MATANDA-MOYO J

This is an application for leave to execute pending appeal.This court, on 5 May 2015, granted judgment in favour of the applicant in the following;(1) That the respondents, having been barred for failure to file heads of argument, the notice of opposition is accordingly struck off.(2) Respondents' application for upliftment ...
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HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

This is an exception by the defendant to the plaintiff's summons and declaration, as amplified by further particulars, on the grounds that the plaintiff's claim does not disclose a cause of action.The defendant further avers that the claim is bad in law.The background to this case is that the plaintiff ...
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HB06-11 : JOTHAM CHIRONGOMA vs TDG LOGISTICS and REGENT INSURANCE
Ruled By: MATHONSI J

The first defendant is a peregrinus whose address is given in the summons as Bracken Gardens Alrode, Johannesburg, South Africa. The said company does not have property located within the Zimbabwean jurisdiction but has haulage trucks which ply Zimbabwean routes on commercial deliveries in Zambia. On 30 April 2009, the ...
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HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

It is not known when the Provincial Assembly of Chiefs, to whom the second respondent will, in terms of the law, refer the dispute, will complete its work. Paragraph 2 of the draft order, which places an obligation on the third respondent to appoint a substantive chief within sixty (60) ...
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SC03-21 : AFRITRADE INTERNATIONAL LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the Fiscal Appeal Court dismissing an appeal against the determination of the respondent requiring the appellant to pay value added tax (VAT) on the importation of certain goods into Zimbabwe.BackgroundThe appellant is a foreign company incorporated in the British Virgin Islands and ...
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HH346-13 : WALKTALL (PVT) LTD vs SHEPHERD TUNDIYA
Ruled By: HUNGWE J

On 26 February 2013, the parties appeared before me, duly represented by their respective legal practitioners of record, for the purpose of holding a pre-trial conference. That pre-trial conference was postponed sine die on specific conditions which were explained to all present. In brief, the parties were to convene their own conference with ...
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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

I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.The delay in compiling this judgement is therefore attributable to the sheer volume of work ...
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HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...
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HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

Order 21 Rule 138 of the High Court Rules states:“138 Procedure on filing special plea, exception or application to strike outWhen a special plea, exception, or application to strike out has been filed -(a) The parties may consent, within ten days of the filing to such special plea, exception or ...
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HB02-15 : RHINE INVESTMENTS (PVT) LTD and ROGER MADANGURE vs WASAA COMMODITIES (PTY) LTD
Ruled By: TAKUVA J

This is an application for rescission of a decision made in case number HC1646/12 wherein it was ordered that the applicant's defence should be struck out and the matter referred to the unopposed roll.The facts are that on 21st May 2012, the respondent instituted proceedings against the applicants for payment ...
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HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

This is an application for the revival of an order by consent that was granted in Case Number HC13123/12 and for costs of suit.The order in question was granted on 5 December 2012.The application is opposed by the respondent.The background facts to this application are as follows:On 5 December 2012, ...
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SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes ...
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SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.The order ...