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Rules of Construction or Interpretation re: Retrospective Construction and Effect of Ex Post Facto & Repealed Laws

HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS
Ruled By: PATEL J

Section 16B of the Constitution of Zimbabwe came into operation on the 14th of September 2005. Subsections (2) and (3) of section 16B of the Constitution of Zimbabwe..., provide as follows:“(2) Notwithstanding anything contained in this Chapter –(a) All agricultural land –(i) that was identified on or before the 8th ...
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HB65-10 : (1) CEDOR PARK FARM (PVT) LTD and (2) DAVID STEWART CRAWFORD vs THE MINISTER OF STATE FOR NATIONAL SECURITY, LAND, LAND REFORM AND RESETTLEMENT IN THE PRESIDENT'S OFFICE and OTHERS
Ruled By: KAMOCHA J

The applicants still persisted that their rights over the farms were not retrospectively affected by the provisions of section 16B(2)(a)(i) of the Constitution of Zimbabwe and cited the case of Nkomo and Another vs The A.G and Others 1993 (2) ZLR 422 (S)…,. At 429A-C GUBBAY CJ had this to say – “It is a cardinal ...
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HHH141-11 : THE STATE vs MAXWELL MAPANZURE and KILLION MUWUYA
Ruled By: KUDYA J and CHITAKUNYE J

The present review judgment deals with the issue of whether section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] has retrospective effect. The section first appeared in the present format as section 12A of the Stock Theft Act [Chapter 9:18] before the Stock Act was repealed by the Criminal Law (Codification ...
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HB32-11 : WINFILDA ZVAVAMWE vs ALICE MPOFU and ANNA SIBANDA and THE ADDITIONAL ASSISTANT MASTER N.O. and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J and MATHONSI J

Counsel for the appellant further argued that the estate could not devolve according to the inheritance regime provided for in the Administration of Estates Act [Chapter 6:01], the relevant provisions of which came into effect through Act No.16 of 1998 which did not have a retroactive effect.
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CC06-17 : GLENS REMOVAL AND STORAGE ZIMBABWE (PRIVATE) LIMITED vs PATRICIA MANDALA
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

DOES SECTION 69(3) OF THE CONSTITUTION RENDER UNCONSTITUTIONAL PARATE EXECUTIE? The issue of whether section 69(3) of the Constitution renders parate executie unconstitutional, of necessity raises the issue of whether or not section 69(3) of the Constitution has retroactive effect and applies to the clause of parate executie that was entered into, executed, and adjudicated upon ...
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SC14-16 : DAVID RICHARD KEMPEN vs CARROL KEMPEN
Ruled By: MALABA DCJ, GUVAVA JA and BHUNU JA

The appeal is, however, grounded on the well-known principle against interpreting statutes in retrospect. This is however only a general principle of law not cast in stone. Thus, in appropriate circumstances, the law may be applied in retrospect as happened in this case. When GUBBAY CJ, in Nkomo Anor v Attorney General ...
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HHB47-15 : DUDLEY RODGERS vs THE STATE
Ruled By: MAKONESE J and TAKUVA J

It is settled law that there is a presumption against retrospectivity of legislation, and that legislation does not govern past incidences, unless the contrary is expressly stated or necessarily inferred from the legislation. See Nkomo and Another v Attorney General and Others 1993 (2) ZLR 422 and Walls v Walls 1996 (2) ZLR 117.
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HH129-15 : DELTA BEVERAGES (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKONI J

It is within the Commissioner's powers to approach Parliament to have taxing legislation amended to avoid an ambiguity such as happened in casu and Parliament has the power to make any such amendment retrospective. Parliament was approached to amend the proviso to section 72(2) of the Income Tax Act [Chapter 23:06] but it determined that the proviso be repealed and ...
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CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

This case raises for determination questions of the constitutionality of civil legislation's retrospective effect. The applicants are companies duly incorporated in terms of the laws of Zimbabwe. They made an application to the Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act (“the Constitution”). They alleged that section 18 of the Labour Amendment ...
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CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

PRESUMPTION AGAINST RETROSPECTIVITY There is a principle of construction of statutes which has been adhered to with great strictness by the courts in deciding whether a statute is or is not retrospective in effect. It is to the effect that laws by which human action is to be regulated look forward not backwards. The Legislature should be presumed ...
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CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

RETROSPECTIVITY AND FUNDAMENTAL HUMAN RIGHTS Retrospectivity is a ground for holding civil legislation invalid only if it contravenes one of the provisions of the Constitution which enshrine fundamental human rights and freedoms. One of the grounds on which the alternative case was advanced by the applicants for the alleged unconstitutionality of the transitional provision was that, in retrospectively imposing the new ...
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CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

The applicants were treated differently from the employees whose contracts they terminated on notice because of the consequences of their actions of terminating the employees' contracts on notice without paying them compensation for loss of employment. The right to terminate employees' contracts on notice exercised on or after 17 July 2015 was retained by the retrospective ...
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SC17-20 : ERASMUS GUDZA vs CITY OF HARARE
Ruled By: HLATSHWAYO JA, GUVAVA JA and CHIWESHE AJA

This is an appeal against the entire judgment of the Labour Court handed down on 14 December 2012 under case number LC/REV/H/86/2011 wherein the appellant's application for review was dismissed for lack of merit.The facts that have a bearing on this matter are as follows:The appellant was employed by the ...
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Appealed
SC66-20 : BREASTPLATE SERVICE (PRIVATE) LIMITED vs CAMBRIA AFRICA PLC
Ruled By: GWAUNZA DCJ, PATEL JA and MAKONI JA

S.I.33 of 2019 was enacted in terms of section 2 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. In terms of section 6(1) of the Presidential Powers (Temporary Measures) Act, S.I. 33 of 2019 lapsed after the expiry of a period of 180 days. However, its provisions have been ...
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SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court sitting at Harare, handed down on 12 December 2016.In the judgment, the court a quo found the first three appellants guilty of murder and the fourth appellant guilty as an accessory after the fact, of public violence.The first three ...
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HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

In his submissions in mitigation, the defence counsel referred to several cases in this jurisdiction dealing with sentence for murder committed with constructive intent.The cases predate the promulgation of the 2013 Constitution.
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Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

This is an application for an Order that:1. The first Respondent pays a sum of US$142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment within seven days from the date of this order.2. In the alternative, the Applicants ...
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SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO
Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court Bulawayo, dated 23 July 2020, which dismissed the appellant's appeal against the decision of the Magistrate's Court granting the respondent summary judgment against him.BACKGROUND FACTSThe appellant is the owner of a residential property known as Number 18 Pingstone ...
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Appealed
SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

This is an appeal against the whole judgment of the Fiscal Appeal Court handed down on 1 November 2016 under judgment number HH661-16 of case number FA08/14, in terms of which the court handed down judgment in favour of the respondent.The appellant seeks relief in the following terms:“WHEREFORE Appellant prays ...
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SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court Harare, dated 25 July 2019. The court a quo dismissed with costs the application for a declaratory order that had been filed by the appellant.THE FACTSThe appellant is the owner of an immovable property situated in Mabelreign, Harare. ...
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HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

The applicant is an independent candidate for the Hurungwe West By-Election scheduled for 10 June 2015. He, by ordinary application, applied for an order suspending the holding of elections in Hurungwe West on 10 June 2015 due to alleged violence and intimidation.In the alternative, he seeks orders compelling the first ...
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SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court dismissing an application by the appellant to file supplementary heads of argument and setting aside the decision of the appellant to terminate the respondent's contract of employment with itself.The facts of this case are largely common cause and are ...
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SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

This is an appeal against the whole judgment of the Special Court for Income Tax Appeals, dated 28 November 2019, upholding the respondent's amended assessment of tax against the appellant.FACTSThe facts of the case can be summarised as follows;The appellant is a registered Bank in Zimbabwe. It is also a ...
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SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against confirmatory proceedings conducted by the Labour Court on 8 September 2017 in terms of section 93(5) of the Labour Act. At the end of the proceedings, the Labour Court made a number of alterations to the draft ruling issued by the Labour Officer.The Labour Court ...
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HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an appeal against four amended income tax assessments number 20211442 for the year ending 31 December 2009; 20211443 for the year ending 31 December 2010; 202211446 for the year ending 31 December 2011; and 20211448 for the year ending 31 December 2012 that were issued against the appellant ...
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HHH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

The Sixth Schedule to the Constitution, Constitution of Zimbabwe Amendment (No.20) Act 2013“2. This schedule prevails, to the extent of any inconsistency, over all other provisions of this Constitution....,.(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date may be continued before ...
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HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The answer sought in this appeal is whether, the appellant, a foreign registered company is liable to pay value added tax in Zimbabwe.The appellant disputed liability for value added tax (VAT) arising from the purported importation of goods into and the carrying on of trade in Zimbabwe and appealed against ...
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CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

After hearing argument on the preliminary point whether the applicants required leave of the court to bring their application, the court ruled that leave was necessary.Having been filed without leave, the matter brought by the applicants was struck off the roll with no order as to costs with the court ...
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CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

Rule 449, in terms of which relief was sought in Liziwe Museredza 385 Others v Minister of Agriculture, Lands, Water Rural Resettlement Ors CC11-21 is no longer in force. Reliance should have been placed on Rule 29 of the High Court Rules 2021.
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CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.Using ...
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CC08-18 : JOYCE MUJURU vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT and RESERVE BANK OF ZIMBABWE and GOVERNOR OF THE RESERVE BANK and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

There is a presumption of validity in respect of all subsisting laws. Until such laws are set aside, they have legal effect and must therefore be complied with.A court cannot, generally speaking, make an order declaring an act illegal, if, at the time the act was performed, it was done ...
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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...
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