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Cause of Action re: Suits or Proceedings Involving Persons Under Disability, Minors and the Presumption of Doli Incapax

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

H R HAHLO, in the South African Law of Husband and Wife, 5th edition …, states that:“At common law, guardianship, in its widest sense, includes custody, and embraces the care and control of the minor's person as well as the administration of his property and business affairs. Where custody and ...
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HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

The applicant is one of the two surviving children of the late Norman Katsande and a beneficiary to his estate. He also purported to be acting on behalf of the other surviving child of the late Norman Katsande, namely, Milenda Tinashe Katsande who is still a minor.
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HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO
Ruled By: CHITAKUNYE J

The applicant is married to Nathan Simango in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. Their marriage was blessed with one child. The respondent is a blood brother to Nathan Simango.It is common cause that the applicant and Nathan Simango moved to the United States of America about 9 years ago. ...
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HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The state of health of the late Ettore Pietro Fumia, at the time the court application in HC6280/11 was made, has not been disputed. In fact, the respondents, in their opposing affidavits, do not put in issue this fact other than saying they are unable to comment on that fact. Despite the strained relations between ...
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HH194-14 : GILBERT CHINYA HUNGWE vs HANDINA FAITH HUNGWE
Ruled By: MAWADZE J

The second point in limine taken by the respondent is that the applicant failed to comply with the peremptory provisions of Rule 249 of the High Court Rules 1971 which provides for the appointment of a curator ad litem before an application of this nature can be made. Counsel for the respondent submitted that such non-compliance ...
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HH199-14 : TENILLE WHITBY vs MARCEL WHITBY and THE IMMIGRATION OFFICER and EVANS SIZIBA
Ruled By: MATANDA-MOYO J

On 8 February 2014, I dismissed the applicant's application as not urgent. I found that the urgency was self–created. I, however, realized that the interests of a minor child was at stake and decided to bring sanity to the matter by giving effect to JUSTICE GUVAVA J's …, order as follows; a) That the physical ...
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HB191-11 : BENJAMIN SIBINDI vs NKOSILATHI MXOTSHWA and SAZINI MXOTSHWA and MNCEDISI MXOTSHWA and PHATHISANI MXOTSHWA and THABO MXOTSHWA and CITY OF BULAWAYO
Ruled By: KAMOCHA J

Secondly, the respondents pleaded in bar that the fourth and fifth respondents, who were minors, could not be sued unless assisted by a guardian. It is not disputed that the two minors were sued in their individual capacities unassisted by a guardian. Consequently, the claim against them is void and a nullity.
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HHH570-14 : LESIUS MUGUMIRE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

Children who are between 7 and 14 years of age are presumed to be doli incapax. BURCHELL and HUNT discuss this presumption in their South African Criminal Law and Procedure, Volume1. The learned authors state…, that: “A child who has completed the seventh but not the fourteenth year is…, presumed to be doli incapax; but ...
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HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA
Ruled By: UCHENA J

The defendant counter claimed for the plaintiff's eviction from the Mandara property. In view of my finding that the plaintiff has no justifiable claim to the Mandara property, he could have easily justified her eviction. The issue of eviction is however not just between him and her but involves the welfare of their children over ...
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HB84-16 : PHILANI GAMA N.O. vs LUNGISANI MPOFU and PATRICIA PHIRI and MBALI NGWENYA and THE ADDITIONAL ASSISTANT MASTER N.O. and THE ASSISTANT MASTER, HIGH COURT OF ZIMBABWE, BULAWAYO N.O.
Ruled By: MATHONSI J

One Qhelani Moyo has stepped in as legal guardian of that minor child to assist her in this litigation.
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HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

The applicant is a daughter to Anita June Bruk-Jackson. On 8 April 2013, the applicant was appointed the curator bonis of Anita June Bruk-Jackson as the said Anita was bedridden and mentally incapacitated….,. Section 85 of the Mental Health Act [Chapter 15:12] states that: “Until the appointment of a curator in terms of section eighty-six to care for and ...
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HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MUREMBA J

Rule 249 deals with applications involving minors and persons under disability.
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SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017....,.The respondents are the respective guardians of two school children who ...
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HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017.
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HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he ...
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Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...
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HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

The plaintiff issued summons against the defendants claiming payment of US$13,868=90 for car rental charges due to the plaintiff and interest thereon at the rate of 3.5% from 1 April 2016 to date of full payment.The undisputed facts are that the first defendant entered into a car hire agreement with ...
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SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

When this matter was called, counsel for the appellant applied to amend the grounds of appeal.Counsel for the respondent was not averse to the application. The matter was stood down to allow counsel to confer on the proposed amendments. When the matter resumed the parties indicated that they had agreed ...
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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

This is an appeal against the judgment of the High Court dismissing an application by the appellants for a declaratory order and consequential relief pertaining to various fundamental rights, in particular, the right of children to shelter.The application was dismissed with no order as to costs.The first appellant is an ...
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HH333-13 : GIVEMORE SAMBADZI and SALATIEL NHUBU vs REGISTRAR OF DEEDS
Ruled By: BHUNU J

The facts that gave rise to this dispute are as follows:In January 2010, the first applicant, Givemore Sambadzi, purchased certain immovable property known as Stand 2048 Chadcombe Township of Stand 1257 Chadcombe Township from one Charity Nyarai Mupaya and a Deed of Transfer was made in his favour.In November 2010, ...
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