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Final Orders re: Principle of Finality to Litigation iro Dismissal of a Matter For Want of Prosecution

HB03-09 : HLANGOTHI MSIMANGA and SILINDA SONGO and MANDLENKOSI SONGO vs LOMATHEMBA SONGO N.O. and ASSISTANT MASTER OF THE HIGH COURT and CITY OF BULAWAYO
Ruled By: NDOU J

On the 25th January 2006, the applicants made the present court application under case number HC153/06 for the re-instatement of case number HC933/05. On the 3rd February 2006, the second respondent filed a notice of opposition and on the 14th of February 2006, the applicants filed their answering affidavit. Under case number HC933/05, the applicants ...
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HH38-09 : JOHN LANDA NKOMO vs LANGTON T MASUNDA
Ruled By: BHUNU J

Mr. Masunda filed an application on 14 November 2008 seeking the rescission of the default judgment entered by MAKARAU JP. Mr.Nkomo filed a notice of opposition on 28 November 2008 and served a copy on Mr.Masunda's legal practitioners. By the 5th January 2009, more than a month later, Mr.Masunda has neither filed an answering affidavit ...
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HH63-12 : PHILLIP MUDZIVIRI (as Executor Dative of the Estate Late Lovemore Ngwende) vs OLIVER MASOMERA
Ruled By: MUTEMA J

At the hearing of the application I dismissed it with costs. The applicant has requested for written reasons for the dismissal. These are the reasons:- The respondent was appointed executor of the estate of the late Phineas Ngwende. Phineas Ngwende was the father of the late Lovemore Ngwende. This application was for condonation of late filing of an application ...
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HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

The applicant is a company with limited liability which purports to own all agricultural equipment and implements and runs farming operations at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in ...
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HB49-09 : RHODA MHLANGA vs RICHARD NDEBELE and REGISTRAR OF DEEDS [N.O.]
Ruled By: NDOU J

The first respondent purchased from the applicant a residential Stand in terms of a written Agreement of Sale. The said Agreement of Sale was drafted by agents appointed by the applicant. Following payment of the purchase price, in terms of the Agreement, the first respondent demanded that the property be transferred into his name. The applicant then purported ...
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HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE
Ruled By: NDOU J

The applicant seeks an order in the following terms -“It is ordered that:1. The respondent's application in case number 1873/07 be and is hereby dismissed with costs for want of prosecution, and the provisional order be and is hereby discharged. 2. The applicant shall pay the costs of this application.3. The applicant be and is hereby given ...
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HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE
Ruled By: NDOU J

Under HC 1995/08, the respondents were the applicants. This is an application for dismissal for want of prosecution of the respondents' application under case HC1995/08, and the discharge of the provisional order granted therein in terms of Order 32 Rule 236(4)(b) of the High Court Rules, 1971. The salient facts are that under case HC1995/08, the respondents', ...
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HH52-10 : ROUTETOUTE BV and PENINSULA PLANTATION and MATANUSKA and BRIGHTSIDE FARM (PRIVATE) LIMITED vs MINISTER OF LANDS and MINISTER OF FOREIGN AFFAIRS and AMBASSADOR E. CHIMONYO
Ruled By: OMERJEE J

The applicants seeks a declaratory order in this matter in the following terms..., - 1. That it be and is hereby declared that the stay of execution of Honourable Mr. Justice KARWI's provisional order under case number HC6541/09 obtained by the third respondent as the applicant under case number HC128/2010 (HH16-10) has lapsed for want of prosecution ...
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HH165-10 : DAVID CHAPFIKA vs TAKADANA MAKINA and HEDON CHATAMBALALA and DEPUTY POLICE COMMISSIONER GENERAL MATANGA and ASSISTANT POLICE COMMISSIONER PFUMVUTI and THE MINISTER OF LANDS
Ruled By: BHUNU J

Having obtained the above provisional order on 19 November 2009 the first two respondents have, to date, done nothing in pursuit of the final order and it appears that they have no intention to set down the matter any time soon. Rule 236(3) provides that - “Where the respondent has filed a notice of opposition and ...
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HH166-10 : LOVENESS JIRI vs LOICE MUNYIKWA and LOVEMORE JIRI and MASTER OF THE HIGH COURT
Ruled By: CHIWESHE JP

At the hearing of this opposed matter a point in limine was raised, namely that the matter had, by order of this court under case number HC1920/08, been dismissed for want of prosecution. The Order given by my brother OMERJEE J on 19 May 2008 reads – “IT IS ORDERED THAT: 1. Respondent be and is hereby ordered ...
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HH59-11 : PATHFINDER INTERNATIONAL (PVT) LTD vs THE TRUSTEES OF ALEXANDER CLUB
Ruled By: BHUNU J

The respondent is the applicant's tenant. The parties are engaged in litigation under case number HC5940/2010 wherein the applicant has instituted eviction proceedings against the respondent.On 26 November 2010, the respondent filed a court application seeking to amend its plea filed on 4 November 2010 whereupon the applicant filed its notice of opposition on 9 December ...
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HB56-10 : GRACE KHUMALO vs PARIS MPOFU and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

Historically, the first respondent filed a court application against the applicant and Barclays Bank Manager on the 24th November 2008 under case no. HC2337/08. That application was served by the Deputy Sheriff personally upon the applicant on the 14th January 2008. She did not act timeously against the application in question, and, in fact, did ...
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HB124-10 : ESTATE LATE ROSE DZIRUNI vs ENOCK DHLIWAYO
Ruled By: MATHONSI J

The supervening death of Rose Dziruni means that the application for dismissal for want of prosecution cannot be pursued.
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HH90-13 : CLAUDIOUS MAPEDZAMOMBE vs EMILY MHINI
Ruled By: MAKONI J

After the point in limine was argued, I postponed the matter to 7 March 2013 for continuation after my determination. On that date, the respondent did not attend court. An application for dismissal of the application was made and was granted. In the result I will make the following order. 1. The application is dismissed. 2. The applicant to ...
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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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HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL
Ruled By: NDOU J

(1) HC234/08This is an application for dismissal for want of prosecution.The salient facts are the following. The applicant, on 27 November 2007, instituted a court application against the respondents. On 12 December 2007, the respondents filed a notice of opposition accompanied by opposing papers. In terms of Order 32 Rule 236(3)(b) of the High Court ...
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Appealed
HB03-14 : SIBONGILE NDLOVU vs GUARDFORCE INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS (NO) and DEPUTY SHERIFF (NO)
Ruled By: MAKONESE J

This is a Chamber Application in terms of Rule 236(3)(b) of the High Court Rules, 1971. On the 20th March 2013, the applicant obtained default judgment against the first respondent ordering it to effect a reversal of transfer in respect of a property known as subdivision B of Lot B Upper Rangemore (measuring 8,1191 hectares) ...
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HB41-14 : ITYAI NKOMO and 2 OTHERS vs T.M. SUPERMARKETS (PVT) LTD
Ruled By: KAMOCHA J

The applicants in this matter filed a chamber application in terms of Order 32 Rule 236(4)(b) of the High Court Rules which recites that: “Where the applicant has filed an answering affidavit in response to the respondent's opposing affidavit but has not, within a month thereafter, set the matter down for a hearing, the respondent, on ...
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SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

I now turn to deal with the appeal against the dismissal by the court a quo of the application for rescission of the default judgment for want of prosecution. The respondent applied to have the appellant's case dismissed for want of prosecution in terms of Rule 236(3) of the High Court Rules, which provides ...
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HH38-15 : NMB BANK LIMITED vs MAXORCARTER (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

Ex tempore, I granted the order sought by the applicant. It was for the dismissal of the respondent's application in HC1525/14 for want of prosecution. As I granted the order, I berated the respondent's counsel for mounting and persisting with a patently spurious opposition. I lamented the fact that the applicant had not asked for ...
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HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

The applicant applied for directions after the parties attended a pre-trial conference before me. On 25 November 2013 I granted the application in which the following order was made; “IT IS ORDERED THAT: 1. Respondent shall furnish all the further particulars, without exception, that were requested by applicant in the request for further particulars that was filed on her ...
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Appealed
SC04-19 : LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS vs AFRICAN BANKING CORPORATION OF ZIMBABWE (PVT) LTD and ABC HOLDINGS (PVT) LTD
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 31 March 2015, in which the court a quo dismissed the appellants' application for rescission of judgment for want of prosecution.
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HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS
Ruled By: CHATUKUTA J

This is an application for the dismissal of the respondents' application in case number HC2754/2014 for rescission of a default judgment granted in case number HC8991/2014.
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HH199-15 : JOSEPH MANDIZHA vs CHEN WANG and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MANGOTA J

Pursuant to the judgement which MATHONSI J granted to the first respondent under case number HH516-14 (ref HC8415/13), the first respondent did, on 15 October 2014, issue an application out of this court. The application was filed under case number HC9133/14. He cited the applicant, the second, third and fourth respondents. The first respondent was served with ...
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HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU
Ruled By: MAKONESE J

This is a Chamber application for dismissal of the respondent's application in case number HC2718/13. The application has been initiated in terms of Order 32 Rule 236(3)(b) on the grounds that the respondent has failed to file an answering affidavit or heads of argument within the time stipulated by the ...
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HHH185-18 : GARIKAYI MBERIKWAZVO vs RESIDENT MAGISTRATE (KADOMA) N.O. and THE PROSECUTOR GENERAL N.O.
Ruled By: MUSAKWA J

In this application, the applicant seeks permanent stay of prosecution of charges preferred against him in 2016.The applicant was summoned to court on three counts of violating the Road Traffic Act [Chapter 13:11]. The first such appearance was 7 January 2016. Trial did not commence. According to the applicant, trial ...
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HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;“FINAL ORDER SOUGHT1. That the stay of execution is hereby granted.2. Respondents shall pay costs of suit on an attorney-client scale.INTERIM RELIEF GRANTED1. The respondents are interdicted to conduct the attachment of the ...
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HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

This is a chamber application in which the first applicant seeks an order in the following terms:“IT IS ORDERED THAT:1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and2. The plaintiff be and is hereby ordered to pay costs of suit.”There is need to set out ...
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HH187-10 : FIRST CLASS ENTERPRISES LTD vs SCANLINK (PVT) LTD
Ruled By: GOWORA J

In Sibindi v ARDA 1994 (1) ZLR 284 the Supreme Court had to consider an appeal wherein the court had mero motu dismissed a claim when the defendant had been in default on the date of trial and no application had been made for the dismissal of the claim. GUBBAY CJ..., observed as follows ...
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HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

This is a chamber application for dismissal of an application for stay of execution for want of prosecution in terms of section 236(3)(b) of the High Court Rules, 1971.The first respondent filed an application for stay of execution pending the determination of an application for rescission on 18 November 2016 ...
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HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

On 8 October 2014, I granted the applicant's claim for an eviction order against the respondents stemming from a sale in execution that had been confirmed by the Sheriff and where transfer of the property had already taken place.I also dismissed the respondent's application for upliftment of bar for reasons ...
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