Law Portal
Zimbabwe

Welcome To Law Portal

Welcome, Guest!
[Help?]

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal and Notice of Appeal iro Approach

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

This is an appeal against the decision of the Chitungwiza magistrate handed down on 25 March 2009, awarding the appellant 15% of the value of the immovable property acquired by the parties during the subsistence of their four year unregistered customary law marriage.The plaintiff listed her grounds of appeal as ...
More

SC27-09 : CLAUDIUS MURAWO vs GRAIN MARKETING BOARD
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

What is a question of law was considered by this Court in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). At 220D-F GUBBAY CJ said the following:“The twin concepts, questions of law and questions of fact, were considered in depth by E.M. GROSSKOPF JA in Media Workers' ...
More

HH138-12 : BERTHA KAKONO vs HERBERT KAKONO
Ruled By: CHITAKUNYE J and MAWADZE J

There are a number of irregularities in this matter. The failure by the trial magistrate to give reasons for the order granted is a serious misdirection. The court a quo is a court of record and should always give reasons for the decisions made. The rationale for this is self-evident as MUCHECHETERE J in ...
More

SC15-12 : K.M. AUCTIONS (PVT) LTD vs ADENASH SAMUEL and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA AJA

The respondent complains that the grounds of appeal are long and winding and that consequently the notice is defective. In my view, given the conclusion I have come to above, it will not be necessary to determine this issue.
More

HH41-09 : NYASHA CHIKAFU vs DODHILL (PVT) LTD and SIMON KEEVIL and MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: BERE J

Having heard the case involving the same parties in case number HC1028/09, in chambers, on 10 March 2009, I granted the following provisional order on 16 March 2009;“INTERIM RELIEFPending the confirmation of this matter, the applicants are granted the following relief:(a) That applicants' possession, use, and occupation of remainder of ...
More

HB01-09 : JOHN MLILO vs TSEPO MOLISA
Ruled By: KAMOCHA J and NDOU J

The court a quo ordered the defendant to handover four herd of cattle to the plaintiff within fourteen days of the judgment. In the alternative, the defendant was ordered to pay the plaintiff an amount of money equivalent to the current market value of the four cattle. The valuation was to be done by ...
More

HH30-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD
Ruled By: PATEL J and OMERJEE J

Objections as to Record of Appeal In the midst of the appeal hearing, after full argument by counsel for the appellant, counsel for the respondent raised the objection that the record of appeal was incomplete because the proceedings in the court a quo had not been transcribed, and because pages 3 and 4 of the record ...
More

HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED
Ruled By: KUDYA J

Counsel for the applicant contended that while the notice of appeal was filed in the Supreme Court on 27 November 2007, it was not served on the Registrar of the High Court until two years later – on 26 January 2010. He further contended that the respondent did not, as required by Part V ...
More

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA
Ruled By: BHUNU J

During the course of the hearing counsel for the applicant took the point that the appeal relied upon by the respondent in proceeding to consecrate the second respondent against HLATSHWAYO J's order was fatally defective and a nullity at law in that the appeal was noted before HLATSHWAYO J had delivered his judgment. Whether or not ...
More

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

The grounds of appeal are far from clear and concise.
More

SC25-14 : DAVID GOVERE vs ORDECO (PRIVATE) LIMITED and REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and PATEL JA

At the beginning of the hearing of this matter, counsel for the appellant sought to introduce a point of law, pertaining to the validity of the proceedings in the court below, as a new ground of appeal. For the reasons given at the hearing, we declined the application.
More

HH38-11 : WELLCROFT INVESTMENTS (PRIVATE) LIMITED t/a HOUSE OF SANDALS vs MODERN CARPETS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO J and KUDYA J

The first preliminary point was that the notice of appeal was invalid for want of compliance with Rule 29(1) of the Supreme Court Rules which was incorporated for appeals from the Magistrates to the High Court by the Magistrates Court Amendment Act No. 9 of 1997. It sets out six mandatory requirements which must ...
More

Appealed
SC03-13 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

The position at law regarding what an Appellate Court may do and when it may interfere with findings of fact made by a trial court is trite.In Aidan Beckford v Elizabeth Anne Beckford SC25-09 SANDURA JA…, stated that:“It is quite clear that the learned judge made specific findings of fact ...
More

SSC18-13 : FRADERICK CHIMAIWACHE vs THE STATE
Ruled By: GOWORA JA

The procedure for the noting of an appeal against conviction and sentence in the Magistrates Court is provided for in the Appellate Division (Magistrates Court)(Criminal Appeals) Rules, S.I. 504 of 1979, specifically Rule 22(1), which provides, in relevant part: “The appellant shall, within ten days of the passing of sentence, or, where a request has ...
More

Appealed
SC20-14 : H. J. VORSTER (PRIVATE) LIMITED vs SAVE VALLEY CONSERVANCY
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

The grounds of appeal in this matter do not address the merits of the application for condonation or the correctness of the exercise of its discretion by the court a quo. Moreover, these grounds of appeal are not only inelegantly framed but also incorrigibly incoherent. In our view, they are utterly devoid of substance.
More

Appealed
SC65-14 : AIR ZIMBABWE (PRIVATE) LIMITED and AIR ZIMBABWE HOLDINGS (PRIVATE) LIMITED vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

The second preliminary issue raised by the first respondent was that the application was defective by reason of its non-compliance with Rule 241(1) of the High Court Rules which requires the applicant to set out the facts of his application in Form 29B. No mention was made of the second issue in the judgment ...
More

Appealed
SC79-14 : DOUGLAS TANYANYIWA and DOUGLAS WARRIORS FOOTBALL CLUB vs LAWRENCE BERNARD GWARADA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

The grounds of appeal set out by the appellants in their notice of appeal are far from clear and concise as required by the Rules of this Court. The Court was at pains to determine what the grounds of appeal were and counsel for the appellants appeared to be equally confused. This type of ...
More

Appealed
SC79-14 : DOUGLAS TANYANYIWA and DOUGLAS WARRIORS FOOTBALL CLUB vs LAWRENCE BERNARD GWARADA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

Counsel for the appellants…, sought, at the outset of the hearing of the appeal, to amend the grounds of appeal by adding an additional ground which he claimed would read: “That the court a quo misdirected itself in making an order against the second appellant in favour of the respondent since the second appellant was the respondent's ...
More

View Appeal
SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

WHETHER THE NOTICE OF APPEAL IS LACKING IN PRECISION AND THEREFORE NULL AND VOID. Rule 32 of the Rules of the Supreme Court, 1964 requires that the notice of appeal shall state the grounds of appeal concisely. The position is now well established that a notice of appeal must comply with the mandatory provisions of ...
More

SC45-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and DEPUTY SHERIFF HARARE
Ruled By: MALABA DCJ, GOWORA JA and PATEL JA

Additionally, counsel for the respondents submitted that the notice of appeal is also incompetent because it does not state the date when leave to appeal was granted, as is required by Rule 29(1)b) of the Rules of this Court. Secondly, the relief sought by the appellant is for the dismissal of the points in limine ...
More

SC10-14 : OLIVER M. CHIDAWU and BROADWAY INVESTMENTS PL and DANOCT INVESTMENTS PL and DANNOV INVESTMENTS PL vs JAYESH SHAH and TN ASSET MANAGEMENT PL and ISB SECURITIES PL and TWO OTHERS
Ruled By: CHIDYAUSIKU CJ

However, more importantly, I dismissed the relief for an interdict because it was not a competent relief. Paragraph 4 of the draft order reveals that the interim interdict was relief pending the hearing of the appeal in case no. SC 293/11. A perusal of the Notice of Appeal in that case reveals that the interdiction ...
More

View Appeal
SC29-14 : PAUL SIMANGO vs MARTHA SIMANGO
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

Regarding the rest of the parties' movable assets, it is evident from the evidence before the court that the appellant did not claim 50% of the value thereof. He is only doing so now - on appeal. This is something that, procedurally, and as a matter of law, he should not do. As ...
More

View Appeal
SC40-14 : MINE MILLS TRADING (PRIVATE) LIMITED and CHARLES CHISANGO and KEVIN MAKONI vs NJZ RESOURCES (HK) LIMITED
Ruled By: MALABA DCJ, GOWORA JA and GUVAVA JA

This is an appeal against the whole judgment of the High Court dated 9 October 2013. At the hearing of the matter it was the view of the court that the appeal lacked merit and it was dismissed with costs. We advised that the full reasons for our decision would follow. These ...
More

SC50-14 : DIPAK PATEL and RAYMOND LOUW vs HAVELOCK COURT (PRIVATE) LIMITED and KANTORA (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

Quite apart from the merits, the procedural point that arises on appeal is whether the invalidity of the four agreements was properly pleaded before the court a quo and duly determinable by that court in light of the original pleadings and the relief originally sought by the appellants. The appellants' argument, in ...
More

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 ...
More

SC04-15 : AGSON MAFUTA CHIOZA vs SMOKING WILLIAMS SIZIBA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

Although the issue as to the illegality of the agreement by virtue of its contravention of section 39 of the Regional Town and Country Planning Act [Chapter 29:12] was not argued in the court a quo, it is a point of law, and, there being no prejudice caused to the respondent by the taking of ...
More

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.The factual circumstances of this matter are common cause.The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He ...
More

SC57-15 : D. L. MAKGATHO vs OLD MUTUAL LIFE ASSURANCE (ZIMBABWE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

THE METHOD OF PAYMENT The appellant has submitted that it was wrong of the court a quo to have determined this matter without enquiring into the manner in which the respondent had paid for Fortune's study at the University of Cape Town. This submission need not detain this Court for two reasons; (i) Firstly, it is ...
More

SC60-15 : SIMON GAZI vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: ZIYAMBI JA, GWAUNZA JA and MAVANGIRA AJA

The authorities cited and relied on by the court a quo (e.g. Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H) arose from labour disputes, and, lastly, the appellant himself relied on one such 'ordinary' civil judgment for its contention that there are exceptions to the general principle that the courts should not accept ...
More

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...
More

SC34-16 : ROGERIO BARBOSA DE SA vs HERLANDER BARBOSA DE SA
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

The second preliminary point raised was that the appellant's grounds of appeal were meaningless and did not comply with Rule 32 of the Supreme Court Rules. Counsel for the respondent submitted that on that basis the appeal ought to be struck off the roll. Counsel for the appellant conceded that the ...
More

SC17-17 : JOHN CHIKURA N.O. and DEPOSIT PROTECTION CORPORATION vs AL SHAM'S GLOBAL BVI LIMITED
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

After hearing argument on the preliminary objections raised by the respondent we reserved our judgment. The objections raised the issue whether the notice of appeal complied with Rule 29(1)(d) as read with Rule 31 of the Rules of this Court. The notice of appeal was filed on 17 June, 2016. It spanned 11 ...
More

SC25-17 : DR NOBERT KUNONGA vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: ZIYAMBI JA, GARWE JA and BHUNU JA

I now turn to deal with the next issue requiring determination, namely, the meaning of “clear and concise” within the context of Rule 29 of the Rules of this court. GROUNDS MUST BE CLEAR AND CONCISE Rule 32 of the Rules of this court provides that the grounds of appeal contained in a notice of appeal ...
More

SC25-17 : DR NOBERT KUNONGA vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: ZIYAMBI JA, GARWE JA and BHUNU JA

THE NOTICE OF APPEAL SEEKS TO IMPUGN THE WHOLE JUDGMENT In his prayer, the appellant seeks an order, inter alia, that the judgment of the court a quo be set aside and in its place, an order made dismissing, with costs, the plaintiff's claim. The respondent has taken the point that the prayer cannot be correct ...
More

SC47-17 : BAREND VAN WYK vs TARCON (PRIVATE) LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

WHETHER THE GROUNDS OF APPEAL COMPLY WITH THE RULES In a recent decision in Kunonga v The Church of the Province of Central Africa SC25-17, this court commented at length on the requirement that grounds of appeal must be clear. This court further confirmed the position it has previously taken, that grounds of appeal that ...
More

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LIMITED
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors' list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017. The appellant wrote to the Registrar requesting the reasons for the order. These are they. The ...
More

HH65-15 : SYDNEY USHE vs DOROTHY VIOLET MADZONGA
Ruled By: UCHENA J and MWAYERA J

This court cannot determine an unspecified allegation, That is why Order 31 Rule 2(4)(a) and (b) of The Magistrate's Court (Civil Rules) 1980, requires an appellant to state the part of the judgment and findings appealed against. It provides as follows; “2(4) A notice of appeal or of cross-appeal shall state - (a) Whether the whole or part only ...
More

Appealed
SC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

The respondent filed a notice of objection, in terms of Rule 41 of the Supreme Court Rules, RGN 380 of 1964, objecting to the appellant's Notice of Appeal on the basis that it was fatally defective…,. Counsel for the respondent contended that the document which was filed by the appellant as its Notice of Appeal does ...
More

SC32-16 : DUMISO DABENGWA and ZIMBABWE AFRICAN PEOPLE'S UNION vs ZIMBABWE ELECTORAL COMMISSION (ZEC) and CHAIRPERSON OF ZEC and CHIEF ELECTIONS OFFICER and MINISTER OF JUSTICE
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

The preliminary question raised is whether the document filed as the Notice of Appeal complies with Rule 29 of the Supreme Court Rules. Rule 29 requires that a Notice of Appeal shall state whether the appeal is against the whole or part of the judgment. The Rule is mandatory in its terms and has been construed ...
More

View Appeal
SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SECTION 74 OF THE CONSTITUTION The appellant argued, for the first time in heads of argument, that, in terms of section 74 of the current Constitution, it had the right not to be arbitrarily evicted in the absence of a court order. It is unclear where this submission comes from. The issue is not part of the appellant's grounds ...
More

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

GROUNDS OF APPEAL In her amended grounds, the appellant has raised seven grounds of appeal. These are:- “1. The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in mistaking the factual Application a quo for a variation of a Consent Paper, rather than for an upward variation in maintenance. 2. The court a quo made a gross misdirection on the facts, ...
More

Appealed
SC45-18 : MISHECK MUZA vs REGGIE SARUCHERA and PRICE TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

To conclude on the issue of the interim interdict that the appellant unsuccessfully sought before the court a quo, I make the point that in his Notice of Appeal to this Court, the appellant did not seek to challenge the correctness of the finding by the court a quo that the interim interdict he had sought could not ...
More

Appealed
SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC.
Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

At the hearing of this matter, additional grounds of appeal were moved and granted through an amendment…,.