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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Approach and the Right of Appeal

SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS
Ruled By: ZIYAMBI JA

This application should, strictly speaking, be one for an extension of time within which to note an appeal in terms of section 6 of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 because, in my view, any purported appeal filed out of time is no appeal at all. Hence, one cannot condone what does ...
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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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SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

Where there is a divergence of authorities on the issue that falls for determination by the court a quo, and given the divergence of decided cases, whichever party loses has prospects of success on appeal.
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HH30-12 : VARAIDZO MATEKO vs ZENUS BANDA
Ruled By: MAVANGIRA J

In Wood ND v Edwards Anor 1966 RLR 336 (G); 196 (3) SA 443 (R) LEWIS J..., made it clear that the general rule, as stated above, also applies in Zimbabwe and he referred, with approval to Reid v Godart 1938 AD 511 when it was also stated that "the ...
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HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

NATURE OF APPEALThe point was raised and argued in limine that an appeal under section 18 of the Extradition Act is an appeal in the wide sense and this court does not first have to find a misdirection on the part of the court a quo to substitute its own ...
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HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

The applicant, as part of the order sought, prays that the order not be suspended in the event that the respondent appeals against this judgment….,. In Whata v Whata 1994 (2) ZLR 277 (S) GUBBAY CJ stated that the principle to be applied by the court considering an application for leave to execute pending appeal is what is just and equitable ...
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HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

On the 9th of September 2009, the applicant obtained a spoliation order against the first respondent, in case no. HC3989/09 evicting him from the property in question (Frogmore Farm). On the same day, the first respondent appealed against this order in case no, SC216/09. Relying on his offer letter from the second respondent, and the notice ...
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HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED
Ruled By: KUDYA J

This is an application for execution pending appeal arising from my judgment of 7 November 2007 in which I ordered National Blankets Limited to pay Branson Marketing (Pvt) Limited the sum of ZAR720,607=07 and interest a tempore morae at the rate applicable in South Africa from the date of the service of summons to the ...
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SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.The matter was brought before me as an urgent application.The respondents, who are former employees of the applicant, were dismissed by ...
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SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI
Ruled By: ZIYAMBI JA

In chambers in terms of Rule 5 as read with Rule 31 of the Supreme Court Rules. This is an application for condonation of the late noting of an appeal and an extension of time within which to appeal against a judgment of the High Court (BHUNU J). The judgment was delivered on 19 May 2010. The ...
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HH05-11 : U-TOW TRAILERS (PVT) LTD vs CITY OF HARARE and SUPERLUX TRAILERS (PVT) LTD
Ruled By: CHATUKUTA J

This is an application for leave to execute the judgment granted in case no. HH103-09 pending an appeal noted by the second respondent against the judgment. The background to the application is that in December 1994, the applicant and the first respondent entered into a lease agreement in respect of certain premises situate at Number ...
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HH16-11 : WILLARD MAZHAWIDZA and DORNICA MAZHAWIDZA vs ISAYA MASHAYAKARARA
Ruled By: CHATUKUTA J

This is an application for execution pending appeal. On 7 October 2009, this court granted judgment in case no. HC677/09 in favour of the applicants. The court ordered the ejectment of the respondent from a property known as Stand Number 628 Marlborough Township also known as No. 33 Taormina Avenue, New Marlborough, Harare. Dissatisfied with ...
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HB26-11 : LESLIE KHUMALO vs VISION SITHOLE
Ruled By: MATHONSI J

The applicant is the beneficiary of an eviction order of this court issued on 1 June 2009 in terms of which the respondent is to be evicted from a garage known as G6 Montrose Mansions in Bulawayo. It would appear that immediately after that eviction order was issued, the respondent submitted an application for rescission ...
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HH222-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs LOVEMORE MAKUNUN'UNU and THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT N.O.
Ruled By: MAKONI J

This is an application for leave to execute pending appeal. The background to the matter is that the applicant carries on farming operations at Frogmore Farm in Mazoe...,. The first respondent took occupation of part of the farm on 13 May 2007 on the basis of an offer letter issued to him by the second ...
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HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

The first respondent filed an application with the third respondent for leave to execute the eviction order pending appeal on the grounds that the appeal had no prospects of success and that it had been filed for purposes of delay. Notwithstanding opposition by the applicant, the third respondent granted the application for leave to execute ...
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HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

Citing the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) the applicant argued that “there was a presumption against alteration in the common law by statute law, unless the words of the statute are plain and unambiguous and an intention to alter the common law is evident from the ...
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HB131-11 : POTENTIAL INVESTMENTS (PVT) LTD and RALEMA INVESTMENTS (PVT) LTD vs JOSEPH TAYALI (in his personal capacity) and TAYALI AND SONS and NERGER PROPERTIES (PVT) LTD
Ruled By: NDOU J

This is a court application for execution of judgment pending appeal. On 4 November 2010, the applicants obtained a judgment in their favour in this court under HB136-10. The judgment was in respect of two matters, namely, HC1583/07 and HC2747/07, which had been consolidated. The effect of this judgment was to confirm the provisional order granted ...
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HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

A fatally defective appeal cannot be amended. See Gosha v Gosha SC123-96…,.
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HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

I am persuaded that the appeal has diminished prospects of success, and for that reason, the first respondent should not be prejudiced in the enjoyment of her right over the house. In any event, the house was sold to her by a person with ostensible authority to do so. She is therefore an innocent ...
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HB136-10 : POTENTIAL INVESTMENTS and RALEMA INVESTMENTS and NERGER PROPERTIES vs JOSEPH TAYALI and TAYALI AND SONS and NERGER PROPERTIES and POTENTIAL INVESTMENTS and RALEMA INVESTMENTS
Ruled By: NDOU J

The applicants have applied for this order to be carried into execution and have placed reliance on Rule 240 of the High Court Rules 1971. It is in exceptional cases that the court will order execution notwithstanding the filing of any notice of appeal - Masukume v Mboma HB46-03 and Jere v Chitsunge HB10-03. There are ...
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HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK
Ruled By: CHIGUMBA J

The applicant filed a chamber application for leave to appeal on 7 November 2013. On 23 October 2013, I had granted an order for provisional sentence in favor of African Export-Import Bank, under case number HC8117/13, in the sum of USD8,000,000= (eight million United States Dollars), together with interest at the prescribed rate of ...
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HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS
Ruled By: MATHONSI J

The applicant is the Chairperson of a co-operative comprising of four (4) members, namely, himself, Calisto Tsanyau, Simpson Mangwanda and Tafirenyika Dzvarai which was engaged in the business of fattening cattle for sale. He was sued by the other members of the co-operative for delivery of 5 head of cattle or their value of $5,375= ...
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SC17-14 : ANTHONY HICKEY vs DMC HOLDINGS PL and CHRISTMAS GIFT PL and ROGERIO B.A. DE SA and NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

The question of the misjoinder of the fourth respondent was not an issue before the court a quo nor was it a ground of appeal, but has been raised in the heads of argument and in submissions before us. In view of the order sought by the appellant in the court a quo, which, ...
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HB37-14 : STANBIC BANK ZIMBABWE LIMITED vs NEIL WILLIAM RIX and FRANCOIS VAN DER ZEE and ALCO FOREST INDUSTRIES (PVT) LTD
Ruled By: KAMOCHA J

The applicant in this matter is seeking an order in the following terms: “IT IS HEREBY ORDERED THAT:- (1) Leave be and is hereby granted to the applicant to execute on judgment number HB24-13 and notwithstanding the respondents' appeal to the Supreme Court. (2) The respondents, jointly and severally, the one paying the others to be absolved, shall pay ...
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HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

This is an urgent chamber application for leave to execute pending appeal. The case has a long, tortuous history dating back to 2009 resulting in numerous court orders being issued.
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HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

As regards the contention that the applicant does not want the first respondent to exercise his right to appeal to the highest court, I am of the view that the authority cited by the first respondent, namely, Zimbabwe Mining Development Corporation Anor v African Consolidated Resources PLC Ors 2010 (1) ...
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SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

It was submitted by counsel for the appellant that if the appeal found favour with this Court then it should grant the provisional order sought as a remittal would cause hardship to both parties. As stated…, we are not persuaded to interfere with the trial court's finding on urgency and the issue of locus standi ...
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SC72-14 : STREAMSLEAGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: GARWE JA

The position is now settled that the court to which application for leave to execute is made has a wide discretion to grant or refuse leave. This discretion is part and parcel of the inherent jurisdiction which the court has to control its own judgments. Further, in the exercise of such discretion, the court ...
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Appealed
SC74-14 : SUPERBAKE BAKERIES (PRIVATE) LIMITED vs RUMTOWERS SECURITY (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

At the hearing of the appeal, the appellant was in default although it had filed heads of arguments and had been served with a notice of set down at the last known address following the renunciation of agency by its erstwhile legal practitioners. The matter was dealt with on the merits, reliance being placed on ...
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SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

Before concluding this judgment, I wish to express the disapproval of this Court of the manner in which this appeal was conducted by the appellant. At the onset of the hearing, counsel for the appellant made an application to have the matter struck off the roll. The reason tendered for this application was that Advocate ...
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SC52-14 : RAINBOW TOURISM GROUP vs FARAI KABASA and SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU CJ

Where the law is uncertain and a decision is pending in the Supreme Court, a Judge of the lower court cannot hold that such an appeal has no prospects of success on appeal.
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Appealed
SC29-16 : EL ELION INVESTMENTS (PRIVATE) LIMITED vs AUCTION CITY (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GUVAVA JA and UCHENA JA

It is accepted that a point of law can be raised at any stage of the process - even on appeal. The law on the raising of points law for the first time on appeal is clear and has been articulated in a plethora of cases. In Muchakata v Netherburn Mine 1996 (1) ...
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SC34-16 : ROGERIO BARBOSA DE SA vs HERLANDER BARBOSA DE SA
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

The first preliminary point raised by counsel for the respondent was that the appellant had filed his heads of argument out of time. In terms of Rule 43(1) of the Supreme Court Rules, 1964 the Registrar is required to call upon the appellant to file heads of argument once he has received the record ...
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SC37-16 : MARANGE RESOURCES (PVY) LTD vs CORE MINING & MINERALS PL (IN LIQUIDATION), MOSES CHINHENGO (RETIRED JUDGE) N.O., PRESIDENT, LAW SOCIETY OF ZIMBABWE N.O., ATTORNEY GENERAL OF ZIMBABWE N.O.
Ruled By: MALABA DCJ, HLATSWAYO JA and GUVAVA JA

The relief sought by the appellant is crafted as follows: “Appellant seeks the following relief: 1. That the instant appeal succeeds with costs. 2. That the judgment of the court a quo be overturned to read as follows: “Pending the final determination of Case No. HC8410/10 and criminal trial under Case No. CRB/10, 1st, 2nd, 3rd and 4th Respondents be ...
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SC42-16 : SOUTHEND CARGO AIRLINES (PRIVATE) LIMITED and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: BHUNU JA

Turning to the objection of failure to comply with Rule 34, the Rule requires an appellant to pay for the preparation of the record or make an acceptable written undertaking to pay to the Registrar unless he is suing in forma pauperis. It reads: “(1) The appellant, unless he has been granted leave to appeal ...
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SC111-04 : ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED vs THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY and MEDIA AND INFORMATION COMMISSION and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA and GWAUNZA JA

JURISDICTION OF THE ADMINISTRATIVE COURT TO ORDER THE EXECUTION OF ITS OWN JUDGMENT DESPITE THE NOTING OF AN APPEALI turn now to the issue of whether or not the Administrative Court had jurisdiction to order the execution of its judgment despite the noting of an appeal.The President of the Administrative Court concluded that ...
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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

Procedure in terms of Rule 41 With regard to the procedure to be adopted, Rule 41 provides: “41. Preliminary objections A party to an appeal who intends to rely on a preliminary objection to any proceeding or to the use of any document shall give notice in writing of the objection to the Registrar and to the opposite ...
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SC21-17 : THE PRESIDENT OF ZIMBABWE, ROBERT GABRIEL MUGABE (in his official capacity) and OTHERS vs MORGAN TSVANGIRAI (in his official capacity as Prime Minister of Zimbabwe and in his personal capacity)
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for leave to appeal in terms of Rule 30(c) of the Supreme Court Rules as read with section 43(2)(d) of the High Court Act [Chapter 7:06] (hereinafter referred to as "the Act"). At the conclusion of submissions by counsel, counsel for the respondent conceded that the applicants ...
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SC30-17 : ALLIANCE INSURANCE vs IMPERIAL PLASTICS (PRIVATE) LIMITED and THE HONOURABLE JUDGE L.G. SMITH (RTD) N.O.
Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

Before addressing the question for determination, it is prudent to highlight why the Court was of the view that the first ground of appeal was improperly before it. The ground of appeal…, states that Article 34 of the Arbitration Act [Chapter 7:15] is unconstitutional, as it fails to uphold the right to equal protection and ...
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SC49-17 : PHILLIP ELLSE vs MICHAEL JOHNSON
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

It is trite that a point of law can be raised at any stage, even on appeal, if it will cause no prejudice to the other party. See the cases of Austerlands (Pvt) Ltd v Trade Investment Bank Others 2006 (1) ZLR 372 (S)…,.; Gazi v NRZ SC60-15; ...
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SC59-17 : RAYMOND KASEKE vs A A MUSUNGA and PATRICIA DHLAKAMA and THE REGISTRAR OF DEEDS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

I am satisfied, when all is told, that this appeal is without merit, and, in effect, comes very close to being an abuse of the right of appeal. This is particularly so, given the inordinate delay, of some 16 years, in bringing this matter to finality.
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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

An Appeal Court, by nature, is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows, generally, that there is nothing for the Appeal Court to determine. It is in the ...
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SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

In the case of Zimbabwe Mining Development Corporation Anor v African Consolidated Resources PLOC SC01-10, CHIDYAUSIKU CJ stated the following: “The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due ...
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HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

Respondents' Letters of Administration The appellants submitted that the respondents who were representing a deceased estate should have furnished the court with properly issued out Letters of Administration. The issue of locus standi should be raised as a special plea or a preliminary issue which can be determined separately before the hearing or at the hearing of ...
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HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

It is now trite that a point of law can be raised at any stage - even on appeal. See the cases of Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chite Ors 2010 (1) ZLR 631; Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S)…,.; Nissan Zimbabwe (Pvt) Ltd v ...
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HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA
Ruled By: UCHENA J and MWAYERA J

It is trite that a point of law can be raised at any stage - even on appeal. See the cases of Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chite Ors 2010 (1) ZLR 631; Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S)…,.; Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) ...
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HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

At law, a person can only appeal against a determination not a recommendation.
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HH225-15 : RITA MARQUE MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: CHATUKUTA J

This is an urgent chamber application for leave to appeal against a judgment of this court in Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 handed down on 11 February 2015. The application was filed on 26 February 2015….,. The parties have been engaged in protracted litigation dating back from 2002 over allegations by the applicant of sexual ...
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HB110-16 : FELIX SANGU vs COMMISSIONER GENERAL OF POLICE and THE BOARD OF SUITABILITY and CHIEF SUPERINTENDENT MBENGWA
Ruled By: MATHONSI J

Section 171(1)(b) of the Constitution provides that the High Court may only exercise appellate jurisdiction conferred to it by an Act of Parliament. See also section 30(1) of the High Court Act [Chapter 7:06].
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HHB125-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs TENDAI CHINEMBIRI
Ruled By: MAKONESE J

It is trite that there is no set time limit for the filing of an application for leave to appeal. Such an application, in my view, should be brought within a reasonable time. See Attorney General v Lafleur Another 1998 (1) ZLR 520 (H) and Prosecutor General v Beatrice Mtetwa Anor HH82-16. The overriding principle ...
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