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Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing ...
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HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO
Ruled By: KUDYA J

The plaintiff produced exhibit 2, the photocopied two-page hand written notes of the trial magistrate of the criminal trial of the second defendant.The first page is a record of the plea of guilty that was entered. The second page contains the mitigation taken, which was followed by special circumstances in which he suggested that he ...
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SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

Similarly, the statement by Samuel Gwavava, which is a statement to the police, is not even an affidavit and its admissibility is doubtful.
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HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS
Ruled By: KUDYA J

The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security ...
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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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HH44-10 : JOHN STRONG (PVT) LTD and TOBS STRONG (PVT) LTD vs WILLIAM WACHENUKA
Ruled By: CHATUKUTA J

This is an application for contempt of court.The background to this application is that the applicants were the owners of Disi Farm (the farm). The farm has since been acquired by the State. The respondent was issued with an offer letter for subdivision 7 (Plot 7) of the farm by ...
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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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HH115-09 : GIBSON CHAMBOKO and MR CHAMBOKO SNR and CHANCE RWODZI vs PATRICK STOOKS and P J STOOKS (PVT) LTD
Ruled By: MAKONI J

It was also my reasoning that the arguments advanced in respect of the point in limine in HC2224/09 would assist in disposing of case number HC2190/09.
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HH134-09 : PUWAYI CHIUTSI vs CLARA CHIUTSI
Ruled By: MUSAKWA J

As regards the motor vehicle at the centre of the dispute, the plaintiff testified that in her plea the defendant was claiming an Opel Astra and a Mitsubishi Pajero. The claim in respect of the Chrysler only arose at the pre-trial conference and there was no amendment to the plea. ...
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HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

The plaintiff and the defendant are husband and wife. They married each other on 8 January 1993 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with three children, Frank (born 6 March 1993), Margret (born 23 September 1997), and Emmanuel (born 24 June 2005). During the ...
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HH49-10 : HENRY NYOKA vs JENNIFER MUREZA
Ruled By: MAVANGIRA J

The plaintiff issued summons for the ejectment of the defendant from House No.14 Msasa Park Drive, Msasa Park, Harare. The basis of the plaintiff's claim is that he is the sole owner of the immovable property.He avers that upon the termination of an unregistered union between him and the defendant, ...
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HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

It may be pertinent…, to note that the applicant brought a similar application in 2007 which he withdrew in June 2009 with a tender of costs.
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HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police. He was charged and convicted for bringing disrepute to the Zimbabwe Republic Police in contravention of section 35 of the Police Act [Chapter 11:10] (hereinafter called the Police Act).He was sentenced to twelve days imprisonment.The first respondent is ...
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HH135-10 : TREVOR GIFFORD vs I. MUGOMBA and MUYESU and RONALD MUCHENGA and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP

During the hearing of the matter, counsel for the applicant advised that the criminal charge pending at Chipinge Magistrates Court against the applicant had been withdrawn before plea. I have not seen the official confirmation of that development.
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HH340-13 : WILLIE TAPERA MHISHI vs THE MEDICAL & DENTAL PRACTITIONERS COUNCIL OF ZIMBABWE
Ruled By: TAKUVA J

The second point in limine relates to the fact that either Josephine Mwakutuya or the respondent or both of them tainted their case with perjury. This submission is based on two letters written by Josephine Mwakutuya. The first letter is dated 30 May 2012 while the second is dated 28 June 2012. In the former ...
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HH364-13 : ENNETY GUNDA vs OLIVER MASOMERA N.O. and TSITSI GUNDA and LANGTON MASHIRI and THE MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MAWADZE J

Under cross-examination, Anderson Gunda vainly tried to deny what he had said in his declaration in HC740/09 that only Daison Gunda and Tsitsi Gunda were staying at this house when Cecilia Gunda died which meant that the plaintiff, Ennety Gunda, was not there.
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HH48-14 : WINSLEY MILITALA N.O. and QV PHARMACIES PRIVATE LIMITED (Under Provisional Judicial Management) vs MUTUAL FINANCE PRIVATE LIMITED and MESSENGER OF COURT and SHINGIRAI USHEWOKUNZE
Ruled By: CHIGUMBA J

In the normal course of things, the second respondent would have been instructed to stay the proceedings. In this case he was not. The explanation proffered by the first respondent was rubbished by the applicants. There was animosity between the parties, a general lack of trust and loss of respect. There were oblique references to ...
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HH272-14 : TREVIGLO SERVICES trading as TADA TEAK AND IRON vs EMMERSON GWATIDZO
Ruled By: CHIGUMBA J

Mr. Sangarwe refused to depose to any affidavit that he did not do enough to safeguard the applicant's interests by failing to file heads of argument in the appeal to the Labour Court, by failing to attend the hearing in which damages were quantified, or by failing to apply for rescission of the arbitral ...
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HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

This is an application for stay of execution.The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed ...
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SC31-15 : WECTOR ENTERPRISES (PRIVATE) LIMITED vs LUXOR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and MAVANGIRA AJA

The court a quo was attacked for accepting the affidavit sworn by Simon Moyo whereas it rejected the letter of a Mr Stirling who, it is alleged, had instructed Knight Frank not to proceed with the case against the appellants. The two positions can hardly be compared for, as the learned Judge found, ...
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HH237-10 : ISDORE HUSAIHWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA vs UZ – USF COLLABORATIVE RESEARCH PROGRAMME
Ruled By: GOWORA J

It is trite that facts on which a party relies on should be averred in an affidavit and should not be argued from the Bar as that is tantamount to counsel giving evidence from the Bar.
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HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

It is trite that where a witness is shown to have lied under oath, then everything that the witness says should be rejected. The logic for that is that a court of law may never know when the truth is told by such a witness, and, as such, it is safe to reject ...
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HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

The issue of Floppa Leah Mlavu's marriage to Ronnie Brown Masiso however does not end there. I have obtained the record, HC724/86, which I am entitled to take judicial notice of as it is a record of this court. The papers filed therein show that Ronnie Brown Masiso filed a divorce summons out of ...
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HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

There is, however, another factor which was not considered by counsel. It is that; at the time the deceased died, in 2003, Ettah Sibanda was still alive and was still legally married to the deceased. In fact, that is common cause. Even according to the evidence of Floppa Leah Mlavu at the time the ...
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HH672-15 : TRINITY ENGINEERING (PVT) LTD vs RUSSELL KARIMAZONDO and MAXIFIX (PVT) LTD and TELECEL ZIMBABWE (PVT) LTD and PEOPLE'S OWN SAVINGS BANK and THE REGISTRAR OF DEEDS
Ruled By: MATHONSI J

Which then brings me to the evidence of Russell Karimazondo which I must say cannot be useful to any court of law. For whatever reasons, he signed and filed a plea in this court on 23 January 2012 which breaks all legal records by its bizarre contents constituting a confession in a suit against ...
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HH672-15 : TRINITY ENGINEERING (PVT) LTD vs RUSSELL KARIMAZONDO and MAXIFIX (PVT) LTD and TELECEL ZIMBABWE (PVT) LTD and PEOPLE'S OWN SAVINGS BANK and THE REGISTRAR OF DEEDS
Ruled By: MATHONSI J

Counsel for the plaintiff…, tried to give that evidence a new colour in his closing address…,. Counsel cannot give evidence.
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HH28-15 : LINDIWE CHIFAMBA vs ELIJAH CHIFAMBA
Ruled By: TSANGA J and CHITAKUNYE J

The only reference to the respondent's earnings in the record is made by his counsel.., where he says his client gets between $6,000= and $7,000= per month as an independent contractor. No evidence was produced to support this claim.
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HH637-15 : RICHARD MUDHANDA vs JENNIFER BROOKER and REGISTRAR OF DEEDS
Ruled By: MUREMBA J

I could not really appreciate why counsel for the first defendant was drawn into the argument about the properties having been registered in the names of a wrong person. The argument made it appear as if the transfers were cancelled on the basis that registration had been wrongly made in favour of the plaintiff's company instead ...
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HH797-15 : PETER KAZINGIZI and THERESA MUCHABAIWA KAZINGIZI vs EQUITY PROPERTIES (PVT) LTD
Ruled By: MATHONSI J

It is significant that no direct claim is made to privilege except what was raised by counsel for the respondent from the Bar.
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Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

Section 27 of the Civil Evidence Act [Chapter 8:01] and section 28 of the Civil Evidence Act [Chapter 8:01] provide -“27 First-hand hearsay evidence(1) Subject to this section, evidence of a statement made by any person, whether orally or in writing or otherwise, shall be admissible in civil proceedings ...
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SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

After the hearing, this Court was furnished with the record of proceedings in the matter between the second appellant and the first appellant under case number HC11003/16. The record contains a letter of termination of the second appellant's employment on notice, dated 12 October 2016, and the proceedings seek to challenge the letter of termination. In Mhungu v ...
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SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

The suggestion made by counsel for the respondent, in argument, that Dr Kunonga and his followers have disbanded the new Church has no basis in the papers. The Court agrees with counsel for the Appellant Church that had that happened the Court would not be hearing these appeals. In any case they would have to be ...
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HH477-14 : KUKURA KURERWA BUS COMPANY vs SIMBA MUKWENA and TRUST SINANI and RAYMOND CHIGWAZE and MESSENGER OF COURT, MUTARE
Ruled By: MATHONSI J

Counsel for the applicant, having burnt his fingers on the effect of an appeal on an arbitral award, submitted, in trying to save the application, that the award was not properly registered by the Magistrates Court in that the applicant was not served with the application for registration. It is trite that an application stands and falls ...
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HH98-15 : CRISWELL JOWA vs NMB BANK OF ZIMBABWE
Ruled By: MUSAKWA J

The chamber application is not backed by a supporting affidavit. Instead, there is a statement signed by the applicant…,. Rule 348A does not provide that the application be supported by an affidavit. Nonetheless, an applicant who wants to convince a judge to grant him the relief sought ought to be wise enough to either depose to an ...
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HH138-11 : DAVID MUYAMBO vs JOHN NGOMAIKARIRA and RICHARD MASHAMBA and RAY MAVHEYA and ROGER WHITTAL and COMMISSIONER-GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: PATEL J

As regards the defendants, none of them was available to testify at the trial. However, the second defendant's undated report [Exhibit 7] was admitted by consent. Thereafter, Exhibits 5 and 6 as well as Exhibit 7 were read into the record by both counsel. It was noted that the deponents to the three exhibits were not ...
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HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ)
Ruled By: DUBE J

A statement only becomes an affidavit when it is signed by the maker and sworn to and signed before a Commissioner of Oaths.
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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

I accept that the legal practitioner responsible for the alleged fault owed it to the court to explain what transpired and could only do so by way of an affidavit. Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa 2010 (1) ZLR 267 (S)…,.; BGM Traffic Control Systems ...
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SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

The purported sale was also tainted by Cecilia Kashumba's misrepresentation in an affidavit that the property was not subject to any disputes. This lie was intended to mislead the purchaser into the Agreement of Sale and facilitate its transfer.
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HH279-18 : CECILIA KASHUMBA vs AAROLA IDEHEN and AMOSORGE IDEHEN and OSARETIN IDEHEN and SHORAI NZARA and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

The impression given is that the applicant was not aware of when the Supreme Court handed down its judgment. She sought to sanitise the purported ignorance of the order of eviction by making the following innocuous averment in the founding affidavit - “On the 12th March 2018 the Supreme Court, in SC18/18, issued out an order in terms ...
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HB251-16 : BEKI SIBANDA vs VANSBURG DRUMGOLD ENTERPRISES and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and SECRETARY FOR MINES & MINING DEVELOPMENT and MINISTER OF MINES & MINING DEVELOPMENT
Ruled By: MAKONESE J

It is noted that the first respondent, the Provincial Mining Director, has filed an opposing affidavit under case number HC2208/16. This court cannot ignore the factual details contained in that opposing affidavit as it has a direct bearing on the application before this court.
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HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE
Ruled By: ZHOU J

At the hearing of the matter, counsel for the first respondent raised the defence of prescription from the Bar....,. The submission that the cause of action in the application for joinder has now prescribed must be rejected for two reasons; (i) Firstly, it was only raised from the bar during argument. The first respondent's opposing papers do ...
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HH157-15 : SUCCESS AUTO (PVT) LTD and HONEYPOT INVESTMENTS (PVT) LTD and DOUGLAS MAKONESE and MERCY MAKONESE vs FBC BANK LIMITED and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MATHONSI J

It is a principle of our law that an application stands or falls on its founding affidavit. See the dissenting judgment of MALABA DCJ in Moyo Ors v Zvoma NO Anor 2011 (1) ZLR 345 (S)…, where he said:- “My view of the case is that the application ought to have been dismissed or ...
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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

The applicant's point that only the Commissioner-General of Police (CGP) is empowered to convene a Suitability Enquiry Board (SEB) and that in the present case it was convened by an unknown person was spurious. The convening order [gleaned by myself from the record for the application for review, as nothing was placed before me] was signed by the ...
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HMA22-18 : SIMBARASHE CHARUMA and PRINCE CHINDAWANDE vs THE REPUBLIC OF SOUTH AFRICA and THE MINISTER OF HOME AFFAIRS N.O.
Ruled By: MAFUSIRE J

In court, there were only submissions from the lawyer on what might have caused the delay. Nothing factual was placed before me. No affidavits, or even unsworn statements from any of the two authorities, were filed to explain the delay.
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Appealed
SC34-19 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

The appellant also relied on the provisional order of BHUNU J…, to support its argument that the question of its ownership of the property in question had already been determined by the High Court….,. Even though the judgment of BHUNU J…, did not specifically conclude that the appellant was indeed the owner of the property, I find ...
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HH261-17 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Counsel for the appellant argued that as the assets belonged to the appellant, they could not be applied to satisfy the debts of the 18th respondent, Minemills Trading (Pvt) Ltd. He argued that in another matter, NJZ Resources (HK) Limited v Minemills Trading (Pvt) Ltd HH341-13, where applicant was seeking a provisional order, BHUNU J had found ...
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SC42-19 : PIONEER TRANSPORT (PRIVATE) LIMITED vs ELIZABETH ANA DA SILVA
Ruled By: GARWE JA, GOWORA JA and PATEL JA

The simple issue before this Court is whether the court a quo correctly dismissed the appeal against the award made by the arbitrator upholding the claim for unlawful dismissal and reinstatement. In order to resolve this question, there is need to determine what the appellant's case at arbitration was, and, thereafter its case before the Labour Court, ...
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HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

I do not find that the fact that Stir Crazy Investments (Pvt) Ltd is suing the plaintiff on the same agreements, in HC10569/14, is a bar to the sureties and guarantors to raise the defences that they have, particularly, since the defendants in this case are not party to the action between the plaintiff and ...
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Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

Exhibit 12 is a Protection Order DV489/10, dated 18 August 2010, granted against both parties by the Magistrates Court. It simply reinforces the undisputed fact that the marriage relationship between the parties has irretrievably broken down.
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Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

Under intense cross examination, the defendant admitted that he lied in the Magistrates Court, during the maintenance hearing, when he said Stircrazy Investments (Pvt) Ltd had five shareholders.
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