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Agency Law re: Acting For Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine

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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HH20-12 : JANE PHIRI vs PATSON NAWASHA
Ruled By: MUTEMA J

The dispute in casu is steeped in the sale of a deceased immovable property whose purchase price was paid by the applicant but transfer of which the respondent failed to effect. The draft order the applicant seeks is couched in these words: “IT IS HEREBY ORDERED THAT: 1. The respondent is hereby ordered to deliver and register a four roomed house; ...
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HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE
Ruled By: HUNGWE J

The plaintiff issued summons against the first, second, third and fourth defendants claiming the following relief: 1. An order that the fourth defendant takes all the necessary steps to pass possession of Stand Number 9314, Budiriro Township, Harare, within 48 hours of the order of court. 2. An order that if the fourth defendant fails, within 48 hours ...
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SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

This is an appeal from a judgment of the High Court given on 9 March 2006 dismissing with costs an application for an order compelling the first respondent to transfer Stand 151 of Plot 216 of Good Hope Township of Good Hope into the appellant's name in terms of an agreement of sale entered into ...
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HH25-10 : MAXWELL MATSVIMBO SIBANDA vs GWYNNE ANNE STEVENSON
Ruled By: CHITAKUNYE J

Lauraine O'Neil was the defendant's selling agent. Clause 19/20, as amended, states that - “The Purchaser acknowledges having been introduced to the Seller by Lauraine O'Neil and confirms that the commission of 7,5% (seven and a half percent) calculated at the parallel market rate on the date of payment, and 15% VAT due, will be paid to ...
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Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

The plaintiff, as represented by its Managing Director, Ms Elizabeth Chidavaenzi, issued summons out of this court on 9 June 2008 seeking the ejectment of the defendant from Stand number 3182 of subdivision A of Stand 159 Prospect in Harare ('the property'). On 2 October 2008 the defendant filed her plea and sought the dismissal of the ...
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HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy. On 21 December 2006, and before the pre-trial conference, the plaintiff amended ...
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HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED
Ruled By: PATEL J

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1st of April 2006 to the date of vacation. The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims ...
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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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HH93-09 : HAVEN CHIKUMBU vs BRYDEN TECHINICAL SERVICES (PRIVATE) LIMITED AND THE REGISTRAR OF DEEDS AND THE DEPUTY SHERIFF FOR HARARE
Ruled By: CHITAKUNYE J

The general law on agency as enunciated by AJ KERR in Law of Agency, 3rd ed 1991..., is that – “In the standard case, the services of empowered agents acting within the terms of their authority result in, and the services of un-empowered agents, contribute to the formation of a contract between the principal, disclosed ...
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HH96-09 : RESMOND KATSANDE vs RUMANI REAL ESTATE (PVT) LTD AND FAIRWEST REAL ESTATE (PVT)
Ruled By: MAKARAU JP

From the manner in which the applicant framed his application and Heads of Argument, and indeed from submissions made in similar matters that have been placed before me at trial, and at pre-trial conferences, it would appear that the relationship of an estate agent and the purchasers that he, or she, identifies on behalf of ...
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HH96-09 : RESMOND KATSANDE vs RUMANI REAL ESTATE (PVT) LTD AND FAIRWEST REAL ESTATE (PVT)
Ruled By: MAKARAU JP

It is..., accepted that an estate agent may be authorised to conclude an Agreement of Sale on behalf of the seller. As stated by LORD GREENE MR in Wragg v Lovett (1948) 2All ER 968, although on the facts of the individual case the seller may authorise the estate agent to conclude the contract, such authorization ...
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HH96-09 : RESMOND KATSANDE vs RUMANI REAL ESTATE (PVT) LTD AND FAIRWEST REAL ESTATE (PVT)
Ruled By: MAKARAU JP

It appears to me that counsel for the first respondent had an admirably easy task in this matter. As correctly submitted by him, there was no contract between the applicant and the first respondent, as the first respondent was under no obligations to conclude a contract with the applicant, even if the applicant was prepared to, ...
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HH100-09 : ZIMBABWE REINSURANCE COMPANY LIMITED vs MOHAMMED A. K. RAMJAN AND BELTCHLEY TRADING [PVT] LIMITED
Ruled By: KARWI J

It was further argued, on behalf of the defendants, that the amount of damages had to be further reduced in light of the fact that the breach of the contract by the defendant was not self-inflicted but was actuated by an agent acting outside its mandate. It seems to me that the parties to this dispute ...
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HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.The plaintiff asserted that he entered into the agreement with ...
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HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

For its case, the plaintiff called one witness, a Mr. Darlington Tapiwa Mandaza of CB Richard Ellis (Pvt) Ltd, who are the plaintiff's agents managing the premises. Darlington Tapiwa Mandaza said he is the Property Portfolio Manager at CB Richard Ellis (Pvt) Ltd. He said he dealt with both defendants in this matter since January 2009. He ...
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HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

I must point out that the plaintiff's agents totally mishandled this matter. They knew what the law says in the event of a rental dispute. Darlington Tapiwa Mandaza confirmed this. They sat back and did nothing.
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Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The plaintiff in this matter seeks:-“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;2. An order to compel the first defendant to ...
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HH32-10 : THE FINANCIAL GAZETTE vs GRASHIE SAPPLIES (PVT) LTD
Ruled By: BHUNU J

The applicant alleges that on 26 October 2007 it instructed its letting agent, Knight Frank Zimbabwe, to give the respondent three months notice to vacate the premises on the grounds that it required the premises for its own use. As a result, Knight Frank Zimbabwe gave the respondent the required three months notice extending from ...
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HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED
Ruled By: KUDYA J

Counsel for the applicant submitted that the respondent had no prospects of success on appeal. He contended that I made findings of fact which the appeal court would not lightly interfere with. One of these findings was that the respondent had contracted, as principal, with the applicant in the purchase of the raw materials to ...
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HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

It is not in dispute that the instant transaction was not a “once off” one.The parties had dealt with each other in the past, as evidenced by Exhibits 2 and 3 which confirm that the defendant, on two separate occasions, sold two motor vehicles on behalf of the plaintiff, and paid the latter in ...
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HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS
Ruled By: UCHENA J

The second respondent is an Estate Agent operating in Mutare. It was, in August 2009, given a mandate by the first respondent's faction to sell the two pieces of land belonging to the Anglican Church.
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HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

More importantly, it is clear that in the absence of the evidence of Mr. Muzondiwa the court cannot, on a balance of probability, accept that he authorized any alterations to the contract entered into by the parties, and that when he did so he was acting as an agent for Total Zimbabwe. This is ...
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HH161-10 : NEVER BVOCHORA vs DOUGLAS TOGARASEI MWONZORA (In his capacity as The executor Dative of the Estate Late I.V. Rukatya)
Ruled By: HUNGWE J

It seems to me that the parties intended to be bound by an agreement to sell. They concluded exhibit 1, for some reason there was a discussion as to the need to change the method of payment. If the defendant was not involved in this discussion it is clear someone on his behalf was ...
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SC41-15 : TONDERAYI MASANGO and WEBSTER BEPURA and GODFREY MEDA and OTHERS vs PETER KENNETH and FARMERS COMMODITY STOCK EXCHANGE (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

This is an appeal against the entire High Court judgment of MAFUSIRE J which dismissed with costs the appellants' claims against the respondents. It was handed down on 12 August 2013. The appellants pray that the appeal succeeds and that the respondents be ordered to pay the costs of suit on a higher scale.The facts ...
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HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

The first respondent is the registered owner of an immovable property known as Lot 2 of Lot 20A Waterfalls, Induna which is 4,195 square metres in extent. On 25 August 2008 the first respondent gave a mandate to the second respondent to dispose of the property on his behalf. The second respondent is a ...
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HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

It not infrequently happens that in the sale of immovable property, the purchase price is paid by the purchaser to the estate agent handling the sale. The vexed question of whose agent such estate agent is in holding the purchase price has come before these courts time and time and time again. In Frazer ...
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HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

The plaintiff issued summons in which he claims for an order setting aside the cancellation of an Agreement of Sale between him and the first defendant and an order for specific performance for the delivery of the property, being a flat called Block 12, Room 93, Mufakose Flats. He later, by consent, amended his claim by adding ...
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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

In the case of Gabriel Real Estate, counsel for the plaintiff conceded that it was an agent of a disclosed principal, and could, therefore, not be held liable for its principal's conduct. In Taunton Enterprises (Pvt) Ltd Anor v Marais 1996 (2) ZLR 303…, MALABA J…, said- “The general rule is that a person who acts ...
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HB41-10 : NQOBIZITHA MICHAEL DUBE vs SIPHIWE MTHUPHA and BULAWAYO CITY COUNCIL and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The next issue to be considered is whether Thando Mabaisa or Calderwood, Bryce-Hendrie and Partners Legal Practitioners had the mandate to enter into the purported written Agreement for Sale in the manner they did. The duty of an agent is to introduce the Buyer to the Seller. That is all. An agent may not, ...
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HB62-10 : CORNIEL DUBE vs GEORGE GRAHAM and OFFICER-IN-CHARGE, MBEMBESI POLICE STATION and DEPUTY SHERIFF FOR BULAWAYO
Ruled By: NDOU J

In his “To whom it may concern” letter dated 20 October 2006, Mr. McNair states- “…,. We have appointed Mr. George Graham to act on our behalf [sic] in the resuscitating of farming operations and to ensure the security of the above farm and due operations.” This implies that the first respondent was acting as an agent ...
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HB145-10 : JANE NYIKA vs THEMBANI MOYO and ALPHEUS NCUBE and REGISTRAR OF DEEDS and CITY OF BULAWAYO
Ruled By: MATHONSI J

I also consider it unnecessary to discuss the issue of whether or not the second defendant was an agent of the plaintiff or whether he had a mandate to sell the house. This is because the evidence shows that, at all material times, the first defendant dealt with the plaintiff. She is the ...
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HB04-11 : PECHI INVESTMENTS (PVT) LTD vs MAURICE CHARLES MUTATSI NYAMUDA t/a EBUNANDINI RESTAURANT
Ruled By: CHEDA J

It is, further, the respondent's argument that the applicant, through its agent CB Richard Ellis, advised him of a new lease agreement.
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HB106-11 : QALISANI (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and M MADONGORERE N.O.
Ruled By: MATHONSI J

Counsel for the applicant's contention that the conviction of the applicant's agent and the decision by the first respondent to dismiss the appeal against the seizure is not relevant because this court has inherent jurisdiction cannot be taken seriously. Section 218(2) of the Customs and Excise Act [Chapter 23:02] provides for strict liability of ...
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SC40-13 : KATHLEEN HANCOCK vs VOTETI TRADING and REGISTRAR OF DEEDS
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

The appellant is the registered owner of a certain property called Lot 4 of Stand 31A, Groombridge Township 2, Harare, measuring 4318 square meters and held under deed of Transfer No. 5295/74.(“the property”). She is resident in the United Kingdom. Sometime in January 2009, she gave to Vivian John de Villiers (“de Villiers”) ...
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SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.The claim against the appellant arose from a Service Provider Agreement concluded ...
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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 KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.The first application, Case No. HC5186/05, concerns an order for specific performance while ...
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HH66-15 : ROLLEX (PVT) LTD vs DELTA BEVERAGES (PVT) LTD
Ruled By: DUBE J

The defendant maintains that there has been a misjoinder or non-joinder, especially with relation to the insurance contract, in that the plaintiff has sued an agent instead of the principal. The law of agency on the relationship between an agent and a principal on whose behalf the agent contracts is now settled. In The South African Law ...
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HH149-16 : ZIMASCO (PRIVATE) LIMITED vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO J

On 23 January 2015, after hearing counsel and having gone through papers filed of record, and the parties having failed to settle the matter on the basis of recent precedent, I gave an order dismissing the appeal with costs and indicated that reasons thereof will follow in due course.I now ...
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HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

The letter was written by the respondent's legal practitioners, on clients' instructions and on their behalf. The respondents have not denied giving those instructions to their legal practitioners. The respondents' contention that it is their legal practitioners who wrote the letter and not the respondents themselves, and, hence, it is not binding on them is preposterous. Who better ...
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Appealed
SC76-17 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MAMINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED
Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

An agent, by definition, is a party that acts on behalf of another and whose conduct binds the principal.
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HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

It is my view that it was not incumbent upon the executor or the Master of the High Court to consult the applicant personally when she had appointed an agent for that purpose. The agent's mandate was adequate for the consultations to be valid and binding. I am of the view that the agent acted ...
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HH161-15 : MCR VENGESAYI and AGNES VENGESAYI T/A VENGESAYI ARHITECTS vs BELVEDERE NURSING HOME (PRIVATE) LIMITED
Ruled By: DUBE J

Express authority exists in a situation where there is actual or express authority to do a thing. Implied authority is defined, in LEE and HONORE, The South African Law of Obligations, 2nd ed…, as follows: “Every agent, unless the contrary manifestly appears to be the intention of his principal, has implied authority to employ all lawful means necessary and usual for ...
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Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

It follows that the letters under discussion were therefore competent as they were written by agents of the second respondent. The case of Gwafa v Small Enterprises Development Corporation Anor 1999 (2) ZLR 261 (SC) reasoned that: “The principles on which a seller can be bound by the ostensible authority of his agent have been set ...
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SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to ...
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HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated ...
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Appealed
SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 18 July 2018 in which it ordered the appellant to deliver to the respondent 167,275 Old Mutual Public Limited Company shares within 10 days of the date of the order. Alternatively, it ordered the appellant ...
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HH444-18 : TAPIWA NALOMWE vs NICHOLAS VAN HOOGSTRATEN
Ruled By: ZHOU J

The plaintiff instituted the summons in casu claiming the following relief against the defendant:“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant ...
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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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HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: MAFUSIRE J

This was a civil trial. The first defendant [“Wedzera”] was in default. On application by the plaintiff [“Engen”] in respect to which the second defendant [“the Bank” or “IDBZ”] had nothing to say, I entered a default judgment against Wedzera, in favour of the plaintiff, in the sum of $847,847=65, ...
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