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Founding Affidavits re: Supplementary Affidavits, Additional Evidence, Closure of Case and the Application to Re-open

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

As a result of certain submissions made by counsel for the two respondents I requested that additional heads of argument be filed in relation to those submissions.
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HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE
Ruled By: GOWORA J

In this application, the applicant sought relief in the form of a mandament van spolie premised on an alleged act of spoliation by persons acting on behalf and at the behest of the second respondent….,.The day before the matter was to be argued before me, the applicant filed a supplementary affidavit in which he indicated ...
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HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

It must be pointed out here that at the hearing I expunged the following documents from the record - the first respondent's supplementary notice of opposition, for being filed after the applicant's answering affidavit had been filed, without leave of the court thereby breaching Order 32 Rule 235, and the applicants supplementary answering affidavit for ...
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HH65-10 : RIO TINTO (AFRICA) PENSION FUND vs AFARAS M. GWARADZIMBA (in his capacity as Liquidator of Sagit Stockbrokers PL) AND AFARAS M. GWARADZIMBA (in his personal capacity)
Ruled By: MTSHIYA J

I heard this matter on 23 February 2010 and reserved judgment. On 2 March 2010, without leave of the court, the applicant filed further and final submissions...,. The first respondent responded to the same by filing further submissions...,. The second respondent, in his submissions, correctly pointed out that the filing of further and final submissions ...
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HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

In this application, the applicants seek an order -(a) Declaring their arrest and continued detention unlawful;(b) Requiring the respondents and all those calling through them or acting on their behalf to permit the applicants access to medical treatment at medical centres of their choice;(c) Directing the respondents or anyone calling ...
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HH89-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURH OF THE PROVINCE OF CENTRAL AFRICA AND CHAD GANDIYA
Ruled By: BHUNU J

The ordination has prompted the applicant to lodge this urgent application before me. The application, in the main, seeks to set aside the second respondent's appointment on the basis that the noting of the appeal in the Supreme Court was a nullity in that it was incompetent, fraught with serious procedural irregularities. The applicant has mounted a ...
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HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

The facts giving rise to this application are largely common cause. They are as follows:The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on ...
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HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.The Tribunal gave its judgment in ...
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HB61-09 : SARAH MLANGENI vs TREZIAH NDLOVU
Ruled By: BERE J

After hearing both counsels in this matter on 29 August 2006, I did indicate to them I was reserving judgment and would make an effort to hand down my decision this morning. Whilst I was in the middle of writing my judgment, in the afternoon of 30 August 2006, the respondent's counsel filed her notice ...
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SC63-14 : UNITED REFINERIES LIMITED vs MINING INDUSTRY PENSION FUND and REGISTRAR OF DEEDS and ERROL S. WOLHUTTER and AUSTIN J. SIBANDA t/a JOEL PINCUS KONSON AND WOLHUTTER
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

In February 2011, the first respondent, (hereinafter referred to as “the respondent”) filed a court application against the appellant, the second respondent and the third respondent wherein an order for specific performance was sought against the appellant. The application was opposed by the appellant and the third respondent. The second respondent did not respond. The ...
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HH138-10 : ISHMAEL PHIRI vs FBC BANK LIMITED and DEPUTY SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

Counsel for the first respondent raised three points in limine. Firstly, he argued that the first respondent objects to the supplementary affidavit that was filed on behalf of the applicant. The supplementary affidavit was filed by the applicant's legal practitioner. In that affidavit, it was contented that the first respondent's legal practitioner had acted unethically since the ...
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HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA J

At the commencement of this matter, both parties applied to have supplementary affidavits admitted. Neither counsel objecting to the admissions both were admitted by consent.
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HH261-10 : ZENUS BANDA vs EUNICE TAYLOR, (substituted by) PAMELA LYNETTE YOUNG (EXECUTRIX of her Estate) and GABRIEL REAL ESTATES and REGISTRAR OF DEEDS and MRS V MATEKO
Ruled By: UCHENA J

When Eunice Taylor decided to sell the property, she instructed Gabriel Real Estate to handle the sale. Gabriel Real Estate contacted the plaintiff and offered him the property for $14 billion Zimbabwe dollars. The plaintiff counter-offered to buy the property for $12 billion. Gabriel Real Estate advised him that the counter-offer had not been accepted ...
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HB194-11 : ZIMBABWE TEXTILE WORKERS UNION vs MERLIN (PRIVATE) LIMITED t/a MERSPIN and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MATHONSI J

At the close of submissions by counsel in this matter, I granted the first respondent leave to file additional affidavits incorporating new facts which arose after the opposing affidavit was filed. In particular, counsel for the first respondent had submitted that the management of the first respondent had unlocked funding in the region of ...
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HB82-10 : DAVID WHITEHEAD TEXTILES LIMITED vs NATIONAL BLANKETS
Ruled By: KAMOCHA J

This is an application in terms of Rule 235 of the Rules of Court wherein the applicant is seeking the following: “It is ordered that: (1) The affidavit of Shungu Andrew Toendepi is hereby admitted as part of the record in case number HC 1475/09 with the annexures attached hereto; and (2) The costs of this application be costs ...
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HB104-10 : THENJIWE NDLOVU vs VISION SITHOLE and CITY OF BULWAYO and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

Before proceeding further it is necessary to dispose of one issue - that is the additional affidavit filed by the first respondent on the 16th March 2010 which he has called a “replying affidavit”. In terms of Order 32 Rule 235: “After an answering affidavit has been filed no further affidavits may be filed without ...
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HB63-11 : TAFARA CHATORA and FRANCO MUNETSI KATSANDE and MELUSI NDLOVU and ENOS NDLOVU vs THE CHAIRPERSON, WESTERN REGION RENT BOARD and P D S INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

The first respondent deposed to an affidavit on 25 March 2011 which the applicants' counsel filed on 1 April 2011, without leave of the court, long after an answering affidavit had been filed, it having been filed on 16 November 2010. The second respondent objected to the admission of that affidavit on the basis that ...
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HB92-11 : MINISTER OF DEFENCE vs RANGARIRAI GUNDA
Ruled By: KAMOCHA J

The information about the disposal of Government houses is contained in documents filed of record produced through the answering affidavit. If the respondent had wished to rebut that information she would have sought leave of this court to file further affidavits in rebuttal in terms of Rule 235 of the Rules of court. She did ...
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HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK
Ruled By: CHIGUMBA J

The respondent filed written submissions, on 13 November 2013, in terms of Order 34 Rule 264 of the Rules of this Court, and took the position that the chamber application was fatally defective for lack of compliance with the Rules of this Court. The respondent also took issue with the supporting affidavit filed by ...
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HH68-14 : FAIRDROP TRADING (PRIVATE) LIMITED vs THE ZIMBABWE REVENUE AUTHORITY
Ruled By: MAFUSIRE J

The first point in limine taken by the respondent was in relation to a fourth set of affidavits that had been filed by the applicant. It was a supplementary affidavit by Dr Munyaradzi Kereke. It had been filed on the new day of hearing. No leave had been sought. The matter had already been ...
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SC20-13 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY vs IGNATIUS RUVINGA
Ruled By: ZIYAMBI JA, GARWEJA and OMERJEE AJA

In paragraph 11 of his notice of opposition to the application, the respondent had challenged the applicant why its entire institution had failed to nominate a representative to represent it at the pre-trial conference of 21 October 2010. In response, and in his answering affidavit, Vote Muza then grudgingly referred to the affidavit of Judith ...
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SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD FARAI MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

THE APPLICATION TO FILE SUPPLEMENTARY HEADS OF ARGUMENT ON THE QUESTION OF JURISDICTION It is common cause that after hearing submissions from the parties, the court a quo reserved judgment in this matter. This was on 15 March 2010. Exactly eight (8) months later, i.e. on 15 November 2010, the appellant then filed an application ...
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SC15-13 : CLETUS CHIKWUKA ANUEYIANGU vs CHIEF IMMIGRATION OFFICER and THE CO-MINISTERS OF HOME AFFAIRS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA, GARWE JA, GOWORA JA and OMERJEE AJA

The first issue relates to the decision of the court a quo to admit the supplementary affidavit. In his heads of argument before this Court, the appellant submitted that the first respondent did not, as required by the Rules, seek the leave of the court first before filing the supplementary affidavit. He ...
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HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN E. KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

I also postponed the hearing sine die and granted, by consent, authority to Turner and Sons to file a further affidavit in response to Dobrock (Pvt) Ltd's supplementary affidavit. I further reserved the question of costs in the provisional liquidation claim to which these additional affidavits pertained.
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HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

The applicant's attempt to unprocedurally introduce into the record, at the eleventh hour, a document which it never referred to in its papers or during submissions was received with displeasure. The document appeared to have aimed at influencing the court to view the applicant's case from a perspective which was different from the one it had earlier ...
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SC51-18 : CONSTRUCTION RESOURCES AFRICA (PRIVATE) LIMITED vs CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GARWE JA and PATEL JA

Even at the end of the civil trial, during the period when judgment in the matter was reserved, the applicant could quite conceivably have applied to reopen its case in the High Court. In short, the evidence sought to be adduced in the main appeal was available and adducible from the time it was produced to ...
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HH324-13 : DOMINION TRADING FZ-LLC vs VICTORIA FOODS (PVT) LIMITED
Ruled By: MATHONSI J

Counsel for the respondent made an application for the admission of two (2) supplementary affidavits filed by the respondent…,. In respect of the supplementary affidavits, counsel for the respondent submitted that after the respondent had filed its opposing affidavit, the applicant had gone on to file an answering affidavit which is so lengthy that, taken together with its ...
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HH173-11 : PROGRESSIVE TEACHERS UNION OF ZIMBABWE and OTHERS vs ZIMBABWE CONGRESS OF TRADE UNIONS and OTHERS
Ruled By: MAVANGIRA J

Counsel for the applicants…, also referred to a supplementary affidavit filed in support of the applicants case. Such affidavit was not before the court, neither had the court's leave, at any stage, been obtained to file the same.
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HB233-16 : DOUGLAS NDLOVU vs THABO MASUKU
Ruled By: TAKUVA J

In terms of Rule 235, after an answering affidavit has been filed no further affidavits may be filed without the leave of a court or a judge.
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HH255-14 : FUNGAYI J. NYEMBA vs CBZ BANK and PRAISE PETROLEUM (PVT) LTD and CROSLEY MASHIRI and NOVELTY MASHIRI and FARAI NYEMBA
Ruled By: MATHONSI J

The applicant…, filed an answering affidavit on 14 October 2013…,. On 31 October 2013, an affidavit by Tererai Hilary Gunje was sneaked into the record, and, later, on 12 December 2013, an affidavit by Crosby Mashiri was filed….,. In terms of Rule 235 of the High Court of Zimbabwe Rules; “After an answering affidavit has been filed, no ...
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HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

In the course of the hearing, and following several queries by myself, counsel for the applicant felt he needed to supplement the application by submitting certain other documents that he said had a material bearing on the merits. Counsel for the respondents had no objection.
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HHH724-15 : PETER CHIKUMBA vs THE STATE
Ruled By: MAFUSIRE J

The test whether in a subsequent bail application there are changed circumstances or not, may be compared to an application for leave to introduce fresh evidence on appeal. The factors to consider should include whether or not the fresh evidence could reasonably lead to a different verdict, and, whether there is a reasonable explanation why such ...
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CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

THE INTRODUCTION OF NEW DOCUMENTS BY THE APPLICANT AFTER SERVICE OF THE COURT APPLICATION ON THE RESPONDENTS Having been granted condonation for failure to file and serve the court application on time, the applicant sought to produce a new set of documents. It was common cause that the new set of documents had not been filed and served ...
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HH130-11 : THIRDLINE TRADING (PVT) LTD and ONCLASS INVESTMENTS (PVT) LTD vs BOKA INVESTMENTS (PVT) LTD and TOBACCO INDUSTRY & MARKETING BOARD
Ruled By: UCHENA J

Rule 246(1)(b) of the High Court Rules provides as follows: “(1) A judge to whom papers are submitted in terms of Rule 244 or 245 may - (a)…,. (b) Require either party's legal practitioner to appear before him to present such further argument as the judge may require.” Rule 246 enables a judge to, where necessary, call legal practitioners for the ...
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HB122-18 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

The plaintiff has applied for leave to re-open the case to adduce further evidence after the close of the defendant's case. This kind of application is rare in practice. This interlocutory application should, however, be understood in the context of the peculiar facts of this case. The gravamen of this application is the following: When the plaintiff was presenting his ...
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SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

When the matter was called, counsel for the respondents took issue with supplementary heads of argument filed on 29 June 2018 in response to the respondents' heads of argument and sought a postponement of the appeal to allow him an opportunity to attend to the heads of argument. Counsel for the appellants indicated that he was amenable ...
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HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS
Ruled By: MAWADZE J

This is clearly improper for the applicant to attach new annexures to the answering affidavit.
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Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

This is an appeal against the decision of the High Court handed down under HH253-16 wherein the court a quo found the appellant liable to pay to the respondent the sum of US$847,847=65 together with costs of suit and interest at the prescribed rate from the date of the granting ...
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Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against part of the judgment of the High Court. The appellant specifically appeals against paragraphs 2 and 3 of the operative part of the judgment which awarded the respondent maintenance at the rate of US$3,000 per month until she dies, remarries, or cohabits with another man ...
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SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

After hearing this matter, I reserved judgment. The applicant, without the leave of the Judge, filed yet another lengthy document, in which he sought to explain why the Notice of Appeal was not filed on time...,. I have completely disregarded this document, as it was improperly placed before me. The ...
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SC08-11 : ERIC FILON vs PUBLIC SERVICE COMMISSION and THE SECRETARY FOR WATER RESOURCES
Ruled By: CHIDYAUSIKU CJ

In Chambers: The legal point raised in this application is:Who should grant or refuse leave to appeal in terms of section 92F of the Labour Act [Chapter 28:01] in circumstances where the presiding President is unavailable?The relevant section provides:"92F Appeals against decisions of Labour Court(1) An appeal on a question ...
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HH40-08 : DHLIWAYO RODGERS vs SHAUN MANDAA KUDINGA
Ruled By: MTSHIYA J

This is an opposed application wherein the applicant seeks the following order:“1. The notice to terminate the lease agreement entered into between the applicant and the respondent on 28 August 2003 in respect of Number 5 Jacaranda Close, Hatfield, Harare be and is hereby declared null and void.2. The applicant ...
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HH128-16 : THE SHERIFF OF THE HIGH COURT vs ORIMBAHURU HOLDINGS (PVT) LIMITED and PEOPLES OWN SAVINGS BANK
Ruled By: FOROMA J

This is an interpleader application in which the Sheriff of the High Court, as the applicant, caused an inter-pleader notice to be issued in terms of Order 30 Rule 205A as read with Rule 207 and Rule 4C of the High Court Rules in order for the court to determine ...
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SC107-21 : METALLON GOLD ZIMBABWE (PVT) LTD and OTHERS vs SHATIRWA INVESTMENTS (PVT) LTD and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE and MASTER OF THE HIGH COURT and REGISTRAR OF COMPANIES
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

This is an appeal against the decision of the High Court (“the court a quo”) which placed the first (Metallon Gold Zimbabwe (Pvt) Ltd), the second (Goldfields of Shamva (Pvt) Ltd) and the third (Goldfields of Mazowe (Pvt) Ltd) appellants under corporate rescue proceedings in terms of section 124(1)(a) of ...
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