Subject Index to Zimbabwe Case-law
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judicial sale of deceased property
administrative decisions and acts -
Constitution of Zimbabwe 1980-
unregistered Customary Marriage
“inhuman or degrading treatment”
Administration of Estates
estate-
Estate Late George Utaumire v Goremucheche (HC 1578/06) [2006] ZWBHC 82; HB 82/06 (10 August 2006):– estate – protection of pending appointment of executor – who may bring action to protect estate – action may be brought by any person having an interest – wife under customary law – right of wife to bring action
In Re: Estate Late Amos John Chirunda (Civ (A) 307/06) [2006] ZWHHC 119; HH 119-2006 (8 November 2006):– estate governed by customary law – determination of who is a surviving spouse – whether Master may make such determination
executor -
Kadengu and Others v Kadengu and Others (31/06/01) [2009] ZWSC 2; SC 27/08 (19 January 2009): distinction from trustee – roles and functions of executor and trustee – appointment of executor – may be made by the Master – trustee – must be appointed by court
Master, High Court v Moyo and Others (HC 5727/07) [2009] ZWHHC 21; HH 11-2009 (19 February 2009): removal of – application by Master – application should be against executor personally, not in his official capacity – need to set out grounds for removal in application or heads of argument
Katsande v Master of the High Court and Another (HC 10476/04) [2007] ZWHHC 50; HH 50-2007 (11 July 2007) : – appointment of – who may be appointed – spouse of deceased person preferred – potential bias on part of executor – when may be a ground for setting aside appointment
Katirawu v Katirawu and Others (HC 1018/07) [2007] ZWHHC 58; HH 58-2007 (8 August 2007) :– removal of – application for – application under common law – who may make application – grounds on which application may be made
Mutyasira v Gonyora and Another (44/06) [2007] ZWSC 107; SC80/06 (28 May 2007) :– appointment of – estate governed by customary law – procedure for appointment – letters of administration not required
Mujuru N.O. & Others v Tungamirai & Another (HC 6033/2005) [2006] ZWHHC 22; HH 22-2006 (15 February 2006):– executor – duties of – dispute over validity of will – not a reason for executor not to proceed with his duties of collecting assets of estate – joint executors – duty to act jointly – failure or refusal by joint executor to participate in administration – courses open to other executor
executor dative
Estate Late Attwell Garande v Masaiti and Others (HC 590/07 ) [2008] ZWHHC 55 (19 June 2008): – appointment of – letters of administration – form of – exact compliance with statutory form not required – equivalent compliance sufficient
Matsinde v Nyamukapa (HC 4352/05) [2006] ZWHHC 102; HH 102-2006 (4 October 2006):–(1) executor dative – claims made on behalf of estate – causes of action which survive the deceased – personal claims – claim of former wife to an equitable share in matrimonial property after divorce – cannot be transmitted to estate of wife after her death (2) – executor dative – removal – application for – should be made to the Master in the first instance, not to the court
judicial sale of deceased property
Malawusi v Marufu and Others (49/02) [2003] ZWSC 1; SC1/03 (14 February 2003) :– judicial sale of deceased’s property – writ of execution issued before death of deceased – sale not barred
Master of high court
Pasalk and Another v Kuzora and Others (97/02) [2003] ZWSC 5; SC5/03 (10 March 2003):– Master of the High Court – decision by – how may be challenged by heir – not competent for heir to bring action in terms of s 113 of Administration of Estates Act [Chapter 6:01] – matter should be brought on review
Administrative Law
administrative decisions and acts -
Jamu v City of Harare (79/06/01) [2009] ZWSC 4; SC 06/07 (26 January 2009) :validity of – acts performed by commission running affairs of city– commission effectively running affairs although its term had expired and its re-appointment was unlawful – such decisions cannot be legitimated on basis of theory of efficacy
Gurava v Traffic Safety Council of Zimbabwe (73/07/01) [2009] ZWSC 5; SC 30/08 (27 January 2009) : grounds for – audi alteram partem rule – applicability to decision to transfer employee to another town – legitimate expectation to be heard before being transferred – employee being told of transfer without being heard but subsequently given opportunity to make representations – rule complied with and legitimate expectation fulfilled
City of Harare v Zvobgo (09/05/01) [2009] ZWSC 12; SC 4/09 (2 April 2009) :validity of – acts performed by commission running affairs of city– commission effectively running affairs although its term had expired and its re-appointment was unlawful – such decisions cannot be legitimated on basis of theory of efficacy
City of
review
Matake and Others v Ministry of Local Government and National Housing (HC 2589/03) [2007] ZWBHC 93; HB 93/07 (13 September 2007) : – review grounds for – legitimate expectation – what party seeking to rely on legitimate expectation must establish
Associated Newspapers of Zimbabwe and Another v Minister of Information and Publicity (HC 1786/06) [2007] ZWHHC 29; HH 29-2007 (9 May 2007):-review – interference by court with administrative actions or decisions – when court will interfere – failure to place before court evidence required for exercise of administrative discretion
Associated Newspapers Of
Movement for Democratic Change v President of the Republic of Zimbabwe (HC 1291/05) [2007] ZWHHC 28; HH 28-2007 (9 May 2007):– review – grounds for – legitimate expectation – limits of use of such principle – not a basis on which to found a cause of action
Khan v Provincial Magistrate & Others (HC 1422/06) [2006] ZWHHC 39; HH 39-2006 (20 March 2006):– review – when appropriate – decision of magistrate involving exercise of a discretion – review not correct procedure to challenge that decision
Africa Tribune Newspapers (Pvt) Ltd and Others v Media and Information Commission and Another (HC 7612/04) [2004] ZWHHC 139; HH 139-2004 (21 July 2004)– control of – registration of mass media – cancellation of registration – grounds for – non-disclosure of material facts – failure to notify Media and Information Commission of change to ownership of registered newspaper – procedure to be followed before cancellation – need for Commission to follow procedure – cancellation on grounds of misrepresentation made during hearing – may not be relied on unless further hearing held
Chirenga v Delta Distribution (HC 10233/02) [2003] ZWHHC 72; HH 72-2003 (7 May 2003)
Rwodzi v
Agent
Mtemererwa & Anor v Tawarwisa & Anor HH-160-04 (Kamocha J):– authority – power of attorney – limits to – agent given powers to conduct transactions relating to purchase of property – not a mandate to instate legal proceedings
Appeal
general
Longman Zimbabwe (Pvt) Ltd. v Midzi and Others (209/06) [2008] ZWSC 34 (11 March 2008):-– effect – court or tribunal other than court of inherent jurisdiction – such court or tribunal has no power to order stay of execution – noting of appeal does not suspend operation of decision appealed against
Pissas v Pissas HH-35-08 (Gowora J) (Judgment delivered 9 April 2008): effect – interlocutory order issued by High Court – when leave to appeal against such order not required – matter relating to custody of children – includes matter relating to access by non-custodian parent
Kudinga v Dhliwayo and Another (HC 1392/08) [2008] ZWHHC 22 (12 March 2008):– effect – whether suspends operation of decision appealed against – decisions of courts or tribunals other than the superior courts – whether suspended by noting of an appeal
Total Marketing Zimbabwe (Private) Limited v Pollylamp Investments (Private) Limited t/a Loe Chris Auto (63/07/01) [2007] ZWSC 34; SC34/07 (26 July 2007): – against interlocutory ruling – need for leave of judge to note appeal against such ruling – merits of matter not dealt with – not proper for Supreme Court to deal with case on merits
Kazingizi v Dzinoruma (CIV (A) 64/05) [2006] ZWHHC 104; HH 104-2006 (11 October 2006) :– decision of court a quo – reasons for – need for court to give reasons for its conclusions – effect of failure to do so
Export Leaf Tobacco Company of Africa (Pvt) Ltd. v Gwavana (66/06) [2006] ZWSC 45; SC45/06 (6 October 2006):– Labour Court – appeal to Supreme Court – point of law – what is – requirement for employee to disclose conflict of interest in a particular form – statement that no conflict of interest existed – whether such statement constituted misconduct involves a point of law
S v Mpofu (28/05) [2006] ZWSC 81; SC95/05 (30 March 2006):– grounds of appeal – grounds seeking relief not sought in court below – when appeal court may grant relief sought on appeal
Austerlands (Pvt) Ltd. v Trade and Investment Bank Ltd. and Others (68/05) [2006] ZWSC 80; SC92/05 (27 March 2006) :– grounds of appeal – points of law – raising of point of law for first time on appeal – when it may be raised
Kingstons Ltd. v L D Ineson (Pvt) Ltd. (05/05) [2006] ZWSC 8; SC8/06 (15 May 2006):– right of – appeal against process by which order made, not against order itself – not permissible
Polaris Zimbabwe (Pvt) Ltd. v Zapchem Detergent Manufacturers CC t/a Starchem (49/03) [2004] ZWSC 68; SC68/04 (16 December 2004): – evidence on appeal – further evidence – when such evidence may be led – undesirability of leading further evidence on appeal – limited circumstances in which such evidence may be led
Chawatama v United Touring Company (51/03) [2004] ZWSC 99; SC99/04 (5 November 2004):Appeal – judgment by consent – no appeal possible
Matanhire v BP Shell Marketing Services (Pvt) Ltd. (64/04) [2004] ZWSC 113; SC113/04 (21 September 2004):– notice of – requirement to state date of decision being appealed against – reason for – failure to state date – effect – notice incurably defective and incapable of being amended – procedure to follow
Cosmos Cellular (Pvt) Ltd. v Posts and Telecommunications Corporation (46/01) [2004] ZWSC 77; SC77/04 (23 September 2004):– powers of court on appeal – decision of lower court based on exercise on discretion – limited powers of appeal court to interfere with decision
criminal case
S v Sando (CA 363/07) [2007] ZWHHC 46; HH 46-2007 (14 June 2007):– criminal case – appeal to High Court – appeal against conviction – Attorney-General not supporting conviction – procedure to be followed
S v Katsiru (CA 506/06) [2007] ZWHHC 36; HH 36-2007 (31 May 2007) :– criminal case – notice of appeal – magistrate’s duty to comment on matters raised in notice of appeal – not sufficient simply to adhere to decision without comment
evidence
Chevron Investments (Pty) Ltd v Chihuri and Another (12/05/01) [2006] ZWSC 62; SC 36/06 (26 September 2006):– evidence – application to lead fresh evidence on appeal – evidence available at time of trial – effect of new evidence would be to allow party to argue its case differently – application refused
late noting of-
Mutizhe v Ganda and Others (91/08/01) [2009] ZWSC 14; SC 17/09 (2 April 2009) : application for condonation and for extension of time – reasons for failure to note appeal in time – delay due to not finding out when judgment appealed against was to be delivered – applicant and legal practitioner not being diligent – not acceptable excuse
leave-
Chikafu v Dodhill (Pty) Ltd and Others (80/09/01) [2009] ZWSC 16; SC 28/09 (7 May 2009) : prospects of success – point of law – divergence of authority – desirability of having point settled by Supreme Court – leave should be granted – provisional order – order having hallmarks of a final order – leave to appeal no required
Nyikadzino v Asher and Others (HC 1020/09) [2009] ZWHHC 33; HH 36-2009 (13 March 2009) :when required – provisional order – leave to appeal required – spoliation order – not necessarily a final order – when granted as a provisional order, leave to appeal required
record-
Bubye Minerals (Pvt) Ltd v Registrar of the High Court and Others (HC 2939/07 ) [2008] ZWHHC 52 (18 June 2008):– inspection of by parties – procedure to be followed – party and Registrar not in agreement on what should be included or omitted – procedure to follow
Tel One (Pvt) Ltd. v Communication and Allied Services Workers' Union of Zimbabwe (37/05) [2006] ZWSC 1; SC1/06 (9 February 2006):– record – deposit with Registrar of estimated cost — undertaking of payment of cost made in lieu of deposit — appellant preparing record at its own expense – failure to file letter of undertaking for payment of costs – effect
set-down-
Jamu v City of
validity
Muchapondwa v Madake & Others (HC 978/06) [2006] ZWHHC 32; HH 32-2006 (6 March 2006):– validity – magistrates court – appeal noted without requesting written reasons for decision – such appeal valid
Arbitration
arbitration clause
Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd (HC 7448/06 ) [2007] ZWHHC 94 (28 November 2007):– agreement – arbitration clause – what is – need for arbitration to be expressed or implied first choice of parties as method for resolving dispute – clause requiring parties to refer matter to mediation, failing which to refer to arbitration – not an arbitration clause ousting jurisdiction of court
Capital
award
Delta Operations (Pvt) Ltd. v Origen Corporation (Pvt) Ltd. (Civil Appeal No. 397/05) [2007] ZWSC 112; SC86/06 (7 September 2007): – setting aside of – grounds for – award contrary to public policy – arbitrator granting remedies not available to parties in terms of contract – arbitrator ignoring or disregarding provision of applicable legislation – creating an issue between parties which did not arise from their submissions – arbitrator failing to give reasons for award
Provincial Superior of the Jesuit Province of Zimbabwe v Kamoto and Others (Civil Appeal No. 84/06) [2007] ZWSC 110; SC84/06 (10 July 2007) :– setting aside of – grounds for – award contrary to public policy – meaning – award promoting an illegality – such award contrary to public policy
Ropa v Reosmart Investments and Other
(94/05) [2006] ZWSC 38; SC38/06 (13 November 2006) :award – finality of – arbitration agreement providing that
arbitrator’s award would be final and would be registered with
the High Court
for execution – award not thereby made an appealable decision of the High Court
Tel-One (Pvt) Limited v Communications and Allied Services Workers Union of Zimbabwe (HC 8380/04 ) [2007] ZWHHC 82 (24 October 2007) :– setting aside of – grounds for – award contrary to public policy – meaning of – wage settlement – award which would drive employer out of business – contrary to public policy
Mtetwa and Another v Mupamhadzi (62/06) [2007] ZWSC 35; SC35/07 (8 May 2007):– setting aside of – application – may only be made in terms of the Model Law – three month time limit – no extension possible
Courtesey Connection (Pvt) Ltd v Mtetwa & Another (HC 265/05) [2006] ZWHHC 63; HH 63-2006 (24 May 2006) – award – review – application – must be brought within time limits stipulated in Arbitration Act – court has no power to extend time or grant condonation
Cargill Zimbabwe v Culvenham Trading (Pvt) Limited (HC 5964/05) [2006] ZWHHC 42; HH 42-2006 (29 March 2006): – referral of matter to – need for dispute to exist – need for dispute to arise ex facie the pleadings – appearance to defend insufficient – need to plead as to merits
Mandikonza and Another v Cutnal Trading (Pvt) Ltd and Others (HC 12050/04) [2004] ZWHHC 189; HH 189-2004 (15 December 2004):– award – enforcement of – application to court to recognise and enforce award – to whom application must be made – must be an application to a judge, with notice given to affected party
Aviation
Roberts v Air Zimbabwe Corporation (HC 2925/98) [2003] ZWHHC 28; HH 28-2003 (26 February 2003) (Hungwe J): Aviation – air carrier – liability – lost baggage – liability governed by Warsaw Convention
Banking
bank
Madondo NO v Zimbabwe Banking Corporation (HC 11410/2004) [2008] ZWHHC 5 (30 January 2008): – overdraft – when an overdraft can be said to have been agreed upon – bank continuing to honour client’s cheques even when insufficient funds stood in client’s account – bill deposited as security for overdraft – bank not entitled to negotiate bill
Zimbabwe Banking Corporation v Chibune and Another (HC 1989/99) [2004] ZWHHC 67; HH 67-2004 (24 March 2004):– customer’s account with – credit made to account on strength of negotiable instrument – instrument subsequently dishonoured – right of bank to debit account with amount previously credited even if no overdraft facilities agreed upon
Rowland Electro Engineering (Private) Limited t/a Sita Sound Forex v Zimbabwe Banking Corporation Limited (HC 6448/2002) [2003] ZWHHC 36; HH 36-2003 (26 February 2003): – account – right of bank to terminate account with customer – notice which must be given – must be reasonable notice
cheque
Sino Zimbabwe Cement Company (Pvt) Ltd v Zimbabwe Banking Corporation Limited (HC 1003/05) [2006] ZWBHC 132; HB 132/06 (16 November 2006):– cheque – forged cheque – wholly inoperative – bank having no right to enforce payment
interest
Bindura
Nickel Corporation Ltd v
Zimbabwe Development Bank v Naga Salons & Others (HC 12639/04) [2006] ZWHHC 43; HH 43-2006 (5 April 2006):– date from which interest begins – in duplum rule – interest ceases once double has reached, irrespective of whether summons issued – interest begins to run on judgment debt as from date of judgment
promissory note
Zimbabwe Banking Corporation Limited v Trustfin Finance Limited (HC 2860/045) [2006] ZWHHC 27; HH 27-2006 (8 March 2006):– promissory note – whether must be presented for payment – note made payable at a particular place – note stated to be payable on presentation to the payer – when such statement regarded as being on the body of the note
Cold Storage Company Ltd. v Rapid Discount House Ltd. (366/2000) [2003] ZWSC 64; SC127/02 (20 March 2003):Bills of exchange and negotiable instruments – promissory note – validity – must be signed by maker – need for person relying on note to show that issuer had signed note
Church
Diocese of Harare v Church of the Province of Central Africa and Another (HC 3208/07) [2008] ZWHHC 6 (30 January 2008):– government of – church’s constitution – members and clergy bound by such constitution – effect of failure to follow procedures laid down in constitution – diocese purportedly withdrawing from province to which it belonged – diocese not following laid down procedures – legal action instituted in name of diocese – applicant having no locus standi
Company
general
Sachikonye v Capital
corporate veil-
Gonye v Gonye (68/06/01) [2009] ZWSC 13; SC 15/09 (2 April 2009): lifting of – matrimonial matter – “one man” company run by one of the spouses – when assets and proceeds of company may be treated as spouse’s own assets
directors
Ngatibataneyi (Pvt) Ltd. v Moyo and Another (49/06) [2007] ZWSC 13; SC13/07 (29 May 2007): – director – acts by – validity – disposal of greater part of assets of company – requirement for specific approval of company in general meeting – directors having no power to dispose of such assets under internal regulations
Chevron Investments (Pty) Ltd v Chihuri and Another (12/05/01) [2006] ZWSC 62; SC 36/06 (26 September 2006):directors – disposing of assets of company without assent of shareholders – validity of transaction – need to show that assets being disposed of constitute whole or major part of company’s assets before transaction can be held to be invalid – assent of shareholders being giving retrospectively – such assent valid – directors being sole shareholders – directors ratifying actions taken by single director – authority given in retrospect
Madzivire and Others v Zvarivadza and Others (93/05) [2006] ZWSC 10; SC10/06 (27 June 2006):– director – powers of – bringing legal proceedings on behalf of company – need for director to be specifically authorised by board meeting to do so
Mason v Timore Training Services (Pvt) Ltd and Others (HC 1635/02) [2004] ZWHHC 191; HH 191-2004 (15 December 2004):– director – powers of – disposal of major assets of company – requirement for approval of company in general meeting for such disposal – presumption that company’s internal regulations complied with – inapplicability of
Victoria Falls Steam Train Co (Pvt) Ltd v Wankie Colliery Co Ltd (HC 2212/03) [2004] ZWHHC 3; HH 3-2004 (7 January 2004):– director – authority — ostensible authority to enter into contract — when can be presumed by person contracting with company – transaction carried out in flagrant disregard of procedures laid down to enhance transparency – no ostensible authority
liquidation-
Zimbabwe Development Bank and Another v Scott and Others (HC 6005/05) [2008] ZWHHC 4 (23 January 2008):– liquidation and distribution accounts – when may be re-opened – account confirmed and creditors already paid – account may not be re-opened – procedure to be followed where person aggrieved by decision of Master – necessary to bring matter on review – need to follow normal review procedures
Nyathi v Tagarira Brothers (Pvt) Ltd. and Others (68/03) [2006] ZWSC 66; SC74/05 (25 January 2006):– liquidation – provisional liquidation – sale of assets – creditors of company – no power in creditors to agree to sell assets
winding up
Khuzwayo v Assistant Master of the High Court and Others (HC 1422/06) [2007] ZWBHC 8; HB 8/07 (18 January 2007) :– order for winding up obtained from court – staying of winding up proceedings – not necessary to apply for rescission of order – party entitled to proceed under s 227 of Companies Act [Chapter 24:03]
Shagelok Chemicals (Pvt) Ltd. v International Finance Corporation and Others (80/01) [2003] ZWSC 61; SC124/02 (20 February 2003):– winding up – judicial management – purpose of and distinction between each – when judicial management should be ordered – inability of company to pay its debts – contingent and prospective liabilities of company
Constitutional law
citizenship
Registrar General of Citizenship and Another v Todd (58/02) [2002] ZWSC 101; SC101/02 (14 November 2002)
Registrar General of Citizenship v Todd (58/02) [2003] ZWSC 4; SC4/03 (27 February 2003) :– citizenship – person a citizen of another country – requirement to renounce that citizenship in order to remain a citizen of Zimbabwe – person born in Zimbabwe of parents who were born in New Zealand – such person a citizen of New Zealand and required to renounce that citizenship
Constitution of Zimbabwe
Mukoko v Commissioner General of Police and Others (293/08) [2009] ZWSC 1 (14 January 2009) :– s 24 – referral of constitutional question to Supreme Court – question arising out of proceedings in lower court – may only be referred by that court in terms of s 24(1) – not open to party to apply directly in terms of s 24(1)
Mike Campbell (Pvt) Ltd. and Another v Minister of National Security Responsible for Land, Land Reform and Resettlement (124/06) [2008] ZWSC 1 (22 January 2008):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 16B – acquisition of agricultural land by the State – removes right to challenge acquisition – s 18 impliedly repealed to that extent – power of legislature to amend Constitution – may amend in any way provided procedures for amendment fully complied with – s 23 – protection against discrimination – nothing on acquisition notices or s 16B referring to race of persons dispossessed of land – section not contravened.
Mann v Republic of Equatorial Guinea (Const. Application No. 09/08 ) [2008] ZWSC 3 (30 January 2008) :– Constitution of Zimbabwe 1980 – s 24 – enforcement of protective provisions – application to Supreme Court under s 24(1) – may not be made where applicant is party to proceedings in High Court or subordinate court – exceptions.
Marimo and Another v Minister of Justice, Legal and Parliamentary Affairs and Others (60/05/01) [2006] ZWSC 60; SC 25/06 (25 July 2006): Constitution of Zimbabwe 1980 – judges – appointment of – appointment of High Court judges to serve in inferior courts – may only be appointed to serve in “special courts” – procedure to be followed for appointment to serve in a special court – effect of failure to follow procedure – s 92
Quinnell v Minister of Lands Agriculture and Rural Resettlement and Others (13/04) [2004] ZWSC 47; SC47/04 (11 November 2004):Constitution of Zimbabwe 1980 – s 31E(1) – office of Minister becoming vacant on assumption of office of a “new” President – meaning – re-election of incumbent President – not assumption of office by “new” President – Minister’s office not automatically rendered vacant
declaration of rights-
Mike Campbell (Pvt) Ltd. and Another v Minister of National Security Responsible for Land, Land Reform and Resettlement (124/06) [2008] ZWSC 1 (22 January 2008):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 16B – acquisition of agricultural land by the State – removes right to challenge acquisition – s 18 impliedly repealed to that extent – power of legislature to amend Constitution – may amend in any way provided procedures for amendment fully complied with – s 23 – protection against discrimination – nothing on acquisition notices or s 16B referring to race of persons dispossessed of land – section not contravened
Manica Zimbabwe Ltd. and Others v Minister of State for National Security Lands Land Reform and Resettlement in the President's Office and Another (06/06) [2007] ZWSC 31; SC31/07 (5 November 2007):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 16 – protection against acquisition of property – Acquisition of Farm Equipment or Material Act [Chapter 18:23] – whether complies with requirements of s 16
Mawere and Another v Central Intelligence Organisation (29/06) [2007] ZWSC 30; SC30/07 (15 October 2007):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 18(9) – right to fair hearing within a reasonable time – disciplinary hearing – members of Central Intelligence Organisation – not members of public service – not governed by public service regulations – disciplinary board set up by CIO – not an adjudicating authority established by law – no protection given by Constitution
Dzvova v Minister of Education Sports and Culture and Others (91/06) [2007] ZWSC 26; SC26/07 (10 October 2007):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 19 (protection of freedom of religion) – what constitutes a religion – Rastafarianism – whether a religion – act done which infringed constitutional right – act done in terms of rules of a school – such rules not constituting a “law”
Zimbabwe Banking and Allied Workers Union & Another v Beverley Building Society & Others (HC 4811/05) [2007] ZWHHC 63; HH 63-2007 (17 September 2007) :– Constitution of Zimbabwe 1980 – Declaration of Rights – s 21 (freedom of association) – right to join trade union – effect of such right – limitations on right – does not oblige employer to pay union fees to unregistered trade union
Movement for Democratic Change v Minister of Justice, Legal and Parliamentary Affairs (124/07) [2007] ZWSC 88 (26 September 2007):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 24 – application under – limited to alleged breaches of rights set out in Declaration of Rights – averment that provisions of legislation were in conflict with other provisions of the Constitution – cannot alone form basis for application under s 24 – need to show that applicant’s rights have been violated – correct procedure to obtain relief
S v Chibaya and Others (CRB 331-5/06) [2007] ZWHHC 4; HH 4-2007 (1 February 2007) :— Constitution of Zimbabwe 1980 — Declaration of Rights — s 18(2) — right to fair hearing — whether accused person has a right of access to investigation diary in police docket
S v Njobvu S-61-06 (Ziyambi JA; Gwaunza & Garwe JJA concurring) (Judgment delivered 27:– Constitution of Zimbabwe 1980 – Declaration of Rights – s 24 – referral of matter to Supreme Court – need for court a quo to hold enquiry – need to give written notice to prosecution
Marimo and Another v Minister of Justice, Legal and Parliamentary Affairs and Others (60/05/01) [2006] ZWSC 60; SC 25/06 (25 July 2006): Constitution of Zimbabwe 1980 – Declaration of Rights – s 18 – right to protection of the law – right to determination of case by court “established by law” – Electoral Court – appointment of judges not in conformity with Constitution – court not properly constituted and thus not a court “established by law”
Law Society of Zimbabwe v Minister of Justice Legal and Parliamentary Affairs and Another (50/0) [2006] ZWSC 16; SC16/06 (11 July 2006): – Constitution of Zimbabwe 1980 – Declaration of Rights – s 24 – application to Supreme Court – who may bring application – need to show that Declaration of Rights has been contravened in respect of applicant
S v Watson (11/05) [2006] ZWSC 17; SC17/06 (3 April 2006):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 18(2) – right to fair hearing within reasonable time – delay of eleven years – no adequate or reasonable explanation for the delay – permanent stay of proceedings granted
Marimo and Another v Minister of Justice, Legal and Parliamentary Affairs and Others (60/05/01) [2006] ZWSC 60; SC 25/06 (25 July 2006):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 22(1) – right to freedom of movement – Zimbabwean citizen married to citizen of another country – foreign citizen declared prohibited immigrant – onus on citizen to show that interference with freedom of movement not reasonably justifiable – when onus may be discharged – failure by Minister to advance cogent reasons for his decision
Khan v Provincial Magistrate & Others (HC 1422/06) [2006] ZWHHC 39; HH 39-2006 (20 March 2006):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 24(1) – application to High Court to have matter referred to Supreme Court – effect on proceedings which are subject matter of application
Tsvangirai v Mugabe and Another (08/05) [2006] ZWSC 73; SC84/05 (14 February 2006):– Declaration of Rights – s 24(1) – application to Supreme Court – application made during the course of “proceedings” in High Court – meaning – when proceedings are pending – requirement to proceed under s 24(2) – procedure to adopt when court not actually sitting – not permissible to apply directly to Supreme Court in terms of s 24(1) unless application under s 24(2) dismissed in bad faith or for improper motives
Bennett v Mnangagwa NO and Others (16/05) [2006] ZWSC 67; SC75/05 (9 March 2006): (1)Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 15(1) – inhuman or degrading punishment – includes punishment that is grossly disproportionate – member of Parliament being imprisoned for serious instance of contempt of Parliament – punishment not close to maximum permissible – not grossly disproportionate
(2)Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 18 – right to a fair trial – trial of member of Parliament for contempt – not criminal or civil proceedings – status of Parliament when sitting as a court
(3)Constitutional law – Constitution of Zimbabwe 1980 – s 49 – Parliament – judicial power vested in Parliament – right of Parliament to imprison members for contempt – Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] – s 3
Quinnell v Minister of Lands Agriculture and Rural Resettlement and Others (13/04) [2004] ZWSC 47; SC47/04 (11 November 2004):(1)Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 16(1)(b) – right to reasonable notice of State’s intention to acquire agricultural land compulsorily – no right thereby given to any specific notice of actual acquisition, nor to time for landowner to wind up his affairs – Land Acquisition Act – ss 8 & 9
(2)Constitutional
law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 18(9) – right
to fair hearing before an
impartial court – acquisition of land – State
becoming owner in spite of objection being lodged with
In Re: Hativagone v Jirivengwa (66/04) [2004] ZWSC 67; SC67/04 (10 September 2004):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 18(2) – right to trial within a reasonable time – factors to be considered – onus on applicant – effect of failure by applicant to establish all points in his favour
S v Makamba (44/04) [2004] ZWSC 11; SC11/04 (26 February 2004):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 13(1)(e) – refusal of bail where accused charged with “economic” offences, even though no prima facie case shown – constitutionality of provision
Chituku v Minister of Home Affairs and Others (HC 2587/99) [2004] ZWHHC 6; HH 6-2004 (14 January 2004) :– Constitution of Zimbabwe 1980 – Declaration of Rights – s 15(1) – inhuman or degrading punishment or treatment – meaning of – s 24 – application under – powers of Supreme Court – whether can award damages
Ngaru v Chief Immigration Officer and Another (17/03) [2004] ZWSC 26; SC26/04 (3 June 2004):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 18 – right to protection of the law – s 18(12) – hearing to be in public – issue of Ministerial certificate that disclosure of any matter not in public interest – duty of court to make provision for disclosure in camera –– Minister declining to disclose reasons for declaring person to be prohibited immigrant – Minister’s certificate not a bar to disclosure of reasons to the court
Association of Independent Journalists and Others v Minister of State for Information and Publicity in the President's Office and Others (52/02) [2004] ZWSC 140; SC136/02 (5 February 2004):(1)Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 18 – right to protection of the law – law creating offence of strict liability for publishing false information – too broad in effect
(2)Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 20 – right to receive and impart information without interference – requirement for journalists to be accredited – not a contravention of section if criteria and qualifications for accreditation not too onerous – entitlement of person to be accredited if criteria met
(3)Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 20 – right to receive and impart information without interference – entitlement of Media and Information Commission to be party to drawing up of code of conduct for journalists and to enforce such code – not a restriction on rights protected by s 20
(4)Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 20 – right to receive and impart information without interference – law making it an offence for journalist to collect or disseminate information without the permission of his employer – too vague in objective – not constitutional
Law Society of Zimbabwe v Minister of Transport and Communications and Another (28/02) [2004] ZWSC 127; SC59/03 (3 March 2004):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 20 – right to freedom of expression, to receive and impart ideas etc – lawyer-client privilege – subsumed under generality of section – Postal and Telecommunications Act [Chapter 12:05] – s 98(2) – right given to President to direct interception of postal articles etc – s 103 – right given to President to give directions to licensees – a breach of rights guaranteed by s 20 – unfettered discretion given with no mechanism to prevent abuse – not justifiable in a democratic society
Mudyanduna v Mukombero and Others (20/03) [2004] ZWSC 131; SC63/03 (13 May 2004):— Constitution of Zimbabwe 1980 — Declaration of Rights — s 22(1) — right of freedom of movement and to reside in any part of Zimbabwe — right of citizen to have spouse reside with her in Zimbabwe – right must be balanced against State interests – need for State to show that some State interest affected
Makulumo v Chief Immigration Officer & Anor S-64-03 (Cheda JA, Chidyausiku CJ, Sandura JA, Malaba JA & Gwaunza JA concurring): — Constitution of Zimbabwe 1980 — Declaration of Rights — s 22(1) — right of freedom of movement etc — right of citizen of Zimbabwe to have spouse reside with her in Zimbabwe — when such right may be interfered with —removal of prohibited persons — State’s right to deport prohibited persons — husband already a prohibited person under immigration laws when marriage took place – status not altered by marriage – citizen’s rights not infringed if husband deported
Nyamandhlovu Farmers’ Association v Minister of Lands & Anor HB-19-03 (Ndou J):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 24 – no right vesting in High Court to determine constitutional issues – such issues must be referred to Supreme Court – who may bring application – only person affected by alleged constitutional infringement has locus standi – no right vesting in association to bring application on behalf of its affected members
Frontline Marketing Services (Pvt) Ltd. v Grain Marketing Board and Others (64/02) [2003] ZWSC 53; SC116/02 (20 January 2003):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 16 (protection from deprivation of property without compensation) – freedom of trade or economic activity – not a basic constitutional right – not property in terms of s 16 – s 21 (right to freedom of association) – right to trade with any person of one’s choice – not protected by section
Gwekwerere, In Re: (05/02) [2003] ZWSC 14; SC14/03 (11 June 2003):– Constitution of Zimbabwe 1980 – Declaration of Rights – s 24(2) – referral of matter to the Supreme Court – matter may only be referred by High Court or court subordinate to the High Court – not competent for an administrative tribunal to refer a matter in terms of s 24(2)
Judiciary
Paradza v Minister of Justice Legal and Parliamentary Affairs and Others (68/03) [2003] ZWSC 46; SC46/03 (16 September 2003):(1)Constitution law - Constitution of Zimbabwe 1980 - Attorney-General - power to institute prosecution - accused person a member of the judiciary - Attorney-General not precluded from bringing prosecution before procedure for removal of judge for misbehaviour completed
(2)Constitutional law - Constitution of Zimbabwe 1980 -judiciary - independence of - meaning of and limitations on - judge accused of criminal conduct not associated with his adjudication of a case - not entitled to insist that procedure for removal of judge for misbehaviour be completed before criminal proceedings may be instituted
parliament
Bennett v Mnangagwa NO and Others (16/05) [2006] ZWSC 67; SC75/05 (9 March 2006):
(4)Constitutional law – Parliament – Parliament sitting as court to adjudicate on matter of privilege or contempt – not sitting as court of law and not bound to follow procedures of court of law
Quinnell v Minister of Lands Agriculture and Rural Resettlement and Others (13/04) [2004] ZWSC 47; SC47/04 (11 November 2004):– Parliament – standing orders – status of – legislation passed in contravention of standing order – not necessarily invalid – introduction of bill containing same substance as another bill introduced during same session and not withdrawn – later bill introduced without leave but substantially altered during committee stage – legislation not rendered invalid by failure to comply with standing order
president
Woods v Commissioner of Prisons and Another (78/01) [2003] ZWSC 74; SC137/02 (17 November 2003):-Constitutional law - Constitution of Zimbabwe 1980 - s 31I - Presidents prerogative of mercy - no limits at to when it may be extended
Contract
general
Kovi v Ashanti Goldfields Zimbabwe Ltd and Another (HC 1612/07 ) [2007] ZWHHC 92 (28 November 2007):– formation – sale – essential requirements – if all requirements are present, absence of detail does not vitiate agreement
Nhundu v Chiota and Another (97/06) [2007] ZWSC 28; SC28/07 (1 October 2007) :Contract – evidence – parol evidence rule – written contract – when parol evidence may be led – may be led to prove contract conditional upon an event which has not occurred
Executive Hotel (Pvt) Ltd v Bennett NO S-77-06 (Chidyausiku CJ, Cheda & Ziyambi JJA concurring) (Judgment delivered 31 May 2007)– formation – mental capacity of contracting party – tests for whether party had requisite mental capacity
Mwayipaida Family Trust v Madoroba and Others (74/02) [2004] ZWSC 22; SC22/04 (13 May 2004):– sale – double sale – when second sale will be upheld – general preference to uphold sanctity of contract by giving effect to first sale
breach-
Zimbabwe Express Services (Pty) Ltd v Nuanetsi Ranch (Pty) Ltd (85/05/01) [2009] ZWSC 21; SC 21/09 (19 May 2009) :– breach – remedies – specific performance – court’s discretion – when specific performance may be refused – order operating harshly on defendant – plaintiff being unjustly enriched due to inflation
Savanhu v Marere N.O and Others (81/06/01) [2009] ZWSC 19; SC 22/09 (18 May 2009)
: – breach – remedies – specific performance – when order for specific performance may be granted – principles to be followed
Mufakose Housing Cooperative Society v Magozore (HC 1302/05) [2007] ZWHHC 17; HH 17-2007 (28 March 2007) :– remedies – specific performance – when should be ordered – court’s discretion – effect of order would be to compel one person to associate with another against his will – specific performance refused
Mobil Oil Zimbabwe (Pvt) Ltd. v Mashoko (98/05) [2006] ZWSC 75; SC86/05 (27 February 2006):– breach – liability for – servants of party – servants performing acts in breach of contract – when party can be said to have breached contract – vicarious liability – not a basis for liability for breach of contract – party failing to exercise proper controls over actions of servants – such failure constituting breach of agreement
cancellation-
enforceability
Tobaiwa v Kaseke & Others (HC 1319/03) [2006] ZWHHC 74; HH 74-2006 (5 July 2006)
:enforceability — sale of immoveable property — seller a tenant-to-buy — local authority requiring consent of seller’s spouse before agreeing to transfer – whether authority can be compelled to transfer the property without spouse’s consent See also Matsika v Jumvea Zimbabwe Ltd & Anor HH-9-03 (Chinhengo J)
illegality
Evans v Snaper (41/03) [2004] ZWSC 55; SC55/04 (10 September 2004):– illegality – par delictum rule – relaxation of – may be relaxed where defendant would be unjustly enriched at expense of plaintiff – where defendant not enriched, no basis for relaxation of rule
interpretation
Old Mutual Property Investments v Metro International (Private) Limited & Another (HC 593/2005) [2006] ZWHHC 53; HH 53-2006 (11 May 2006):– interpretation – contra proferentem rule – when applicable – used of extrinsic evidence to resolve ambiguities – specific words – “supermarket”
See also:Sibanda & Anor v Pentaville Investments (Pvt) Ltd & Ors HH-14-03 (Makarau J)
Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation (Pvt) Ltd and Another (Civil Appeal No.134/04) [2007] ZWSC 109; SC83/06 (26 June 2007):– interpretation – “golden rule” – words to be given their ordinary meaning unless otherwise defined – “supermarket” – meaning
mistake-
Agricultural Bank of Zimbabwe Ltd. t/a Agribank v Machingaifa and Another (Civil Appeal No. 11/06 ) [2008] ZWSC 6 (17 March 2008):– unilateral mistake by offeror – when will entitle offeror to escape liability
See also:Smith & Ors v ZESA HH-22-03 (Paradza J).
option(s)
Nerger Properties (Pvt) Ltd. v R Chitrin & Company (Pvt) Ltd. (40/05) [2006] ZWSC 47; SC47/06 (13 November 2006): – option – right of first refusal – what is – right of holder of option to obtain interdict to enforce his right
See also Eastview Gardens Residents Association v Zimbabwe Reinsurance Corp & Ors HH-174-03 (Paradza J)
partnerships
Metallon Corporation Ltd. v Stanmarker Mining (Pvt) Ltd. (88/06) [2007] ZWSC 108; SC82/06 (23 May 2007):Partnership – formation – essentials for an agreement to create a partnership – need to show that business was being carried out for joint benefit of both parties
perfomance-
Mbayiwa v Chitakunye and Another (22/06/01) [2008] ZWSC 43; SC 20/09 (18 May 2008)
– tender – tender of performance by one party – such tender not in accordance with terms of contract – other party entitled to treat tender as a breach of contract
Beitbridge-Bulawayo/Railway Private Ltd. v Commercial Union Insurance Company of Zimbabwe Ltd. (Civil Appeal No. 73/06 ) [2007] ZWSC 91 (11 March 2007) :– impossibility – when extinguishes obligations under contract – parties contemplating situation giving rise to impossibility – defendant not able to rely on impossibility to avoid obligations
Beitbridge-Bulawayo/Railway Private Ltd. v Commercial Union Insurance Company of Zimbabwe Ltd. (Civil Appeal No. 73/06 ) [2007] ZWSC 91 (11 March 2007) :– reciprocity – when party sued on contract entitled to rely on reciprocity by other party – principle of reciprocity may be excluded by contract itself
Ncube v Mpofu and Others (HC 1351/03) [2006] ZWBHC 69; HB 69/06 (13 July 2006):– performance – impossibility – meaning – fact that changed circumstances made performance uneconomical – not impossible for contract to be performed
National University of Science and Technology v National University of Science and Technology Academic Staff and Others (HC2133/04) [2006] ZWBHC 7; HB 7/06 (3 February 2006):– performance – impossibility – temporary or final – distinction between – when party claiming impossibility is excused
sale
Okeke v M Duro Company (Pvt) Ltd (HC 8687/02) [2006] ZWHHC 71; HH 71-2006 (21 June 2006):– sale of rights in immoveable property — seller a shareholder in association owning property — sale conditional on association agreeing to issue certificate – association declining to issue share certificate to buyer – not a breach by seller of his obligations –– condition precedent not met
Kovi v Ashanti Goldfields Zimbabwe Ltd and Another (HC 1612/07 ) [2007] ZWHHC 92 (28 November 2007):– formation – sale – essential requirements – if all requirements are present, absence of detail does not vitiate agreement
Chiwanza v Matanda and Others (HC 8591/03) [2004] ZWHHC 170; HH 170-2004 (13 October 2004): – execution – sale – sale confirmed and transfer effected – remedies open to interested party wishing to have sale set aside – limited grounds on which sale may be set aside
See also : Mudungwe NO v Wood (HC 4190/2002) [2003] ZWHHC 141; HH 141-2003 (3 September 2003)
stipulatio alteri
Chirenje v Vendfin Investments and Others (36/05/01) [2009] ZWSC 11; SC 13/09 (19 March 2009): – formation – need for offer to be made to and accepted by third party – third party not entitled to sue upon contract before then
suretyship
Mandhu v Scotfin Ltd (HC 1508/02) [2003] ZWHHC 64; HH 64-2003 (30 April 2003):– suretyship – surety – liability of – judgment debt arising out of principal debtor’s failure to pay debt – surety’s liability dependant on interpretation of contract – contract worded so as to extend liability to all sums and to judgment debts
validity
Nestoros v Innscor Africa Limited (HC 2811/03 ) [2007] ZWHHC 84 (29 October 2007)
:validity – offer – need for offer to be certain and definite – uncertainty as to what was promised or when it was to be fulfilled – no binding agreement
Mudukuti v Fcm Motors (Private) Limited (HC 6743/04) [2007] ZWHHC 14; HH 14-2007 (2 April 2007):– validity – disclaimer clause – when may be treated as unfair in terms of Consumer Contract Act [Chapter 8:03] – customer leaving vehicle for repair – not fair to restrict repairer’s liability for loss or damage caused – implied term of contract – when may be imported – implied term to return vehicle in a state not worse than when it was left with repairer
See also:1)Lowveld Leather Products (Pvt) Ltd v International Finance Corp & Anor S-114-02 (Sandura JA, Cheda and Ziyambi JJA concurring) 2)Tanganda Tea Co (Pvt) Ltd v Amtec (Pvt) Ltd HH-39-03 (Smith J)
Zimbabwe Development Bank v Zambezi Safari Lodges (Pvt) Ltd and Others (HC 703/2003) [2006] ZWHHC 96; HH 96-2006 (24 August 2006):– validity – contract sounding in foreign currency – lawfulness of – tender in settlement – rate of exchange – when official rate applies – whether judgment creditor obliged to accept tender
Watergate (Pvt) Ltd. v Commercial Bank of Zimbabwe (15/04) [2006] ZWSC 70; SC78/05 (12 January 2006):– validity – contract providing that loan be repaid in foreign currency – valid if party can show that judgment in foreign currency would most fully compensate for his loss
See also :Matsika v Jumvea Zimbabwe Ltd & Anor HH-9-03 (Chinhengo J)
waiver-
Agricultural Bank of Zimbabwe Ltd. t/a Agribank v Machingaifa and Another (Civil Appeal No. 11/06 ) [2008] ZWSC 6 (17 March 2008):– delay in enforcing rights – when may be construed as waiver of right
Costs
Dube (Nee Msimanga) v Mavako-Dube (HC 317/06) [2006] ZWBHC 78; HB 78/06 (3 August 2006):– contribution towards – divorce action – when contribution may be ordered
counsel's fees
Ndlovu and Another v Maunze and Others (HC 1234/06) [2006] ZWBHC 137; HB 137/06 (23 November 2006):counsel’s fees – counsel acting pro amico – successful party not entitled to costs of such counsel
Choto v C.B.Z. and Another (HC 12640/04) [2006] ZWHHC 126; HH 126-2006 (8 November 2006):– counsel’s fees – what may be charged – whether counsel bound by Law Society tariff
Court
Court Matial
S v Mupambwa and Another (03/03) [2004] ZWSC 75; SC75/04 (14 September 2004)
:– court martial – appeal against decision of – to whom appeal lies – Court Martial Appeal Court – composition of
Contempt
S v Machona (CRB 179/06) [2006] ZWHHC 41; HH 41-2006 (23 March 2006):– contempt – contempt in facie curiae – magistrates court – contempt may only be committed at gazetted place of sitting of court or if court is elsewhere as part of court proceedings – magistrate’s powers when offence committed in his presence
Macheka v Moyo (HC 1169/2003) [2003] ZWBHC 78; HB78/03 (10 July 2003)
electoral court-
Makone and Another v Chairperson of the Zimbabwe Electoral Commission and Another (EP 17/08) [2008] ZWHHC 38 (13 March 2008) :-– Electoral Court – jurisdiction – subject matter of petition or application not specifically allocated to Electoral Court – court having no jurisdiction to hear matters not specifically provided for in Electoral Act
Marimo and Another v Minister of Justice, Legal and Parliamentary Affairs and Others (60/05/01) [2006] ZWSC 60; SC 25/06 (25 July 2006):– Electoral Court – appointment of High Court judges to preside over Electoral Court – need to follow procedure set out in s 91 of the Constitution – system of appointment under Electoral Act not in conformity with Constitution – appointments invalid
high court-
Mushoriwa v Zimbabwe Banking Corporation (HC 1385/07) [2008] ZWHHC 83; HH 23-2008 (20 January 2008): – jurisdiction – labour matters – application for declaration – only labour matter over which High Court has jurisdiction – need for court to examine precise nature of relief sought see also Tuso v City of Harare HH-1-04 (Bhunu J)
Mawere v Agricultural Finance Corporation (HC 1615/2001) [2006] ZWHHC 46; HH 46-2006 (29 March 2006):– jurisdiction – labour matter – court’s jurisdiction ousted, even in case previously pending before the court
Agricultural Bank of Zimbabwe Ltd. t/a Agribank v Machingaifa and Another (Civil Appeal No. 11/06 ) [2008] ZWSC 6 (17 March 2008): – jurisdiction – labour matters – declaratory order – High Court retaining jurisdiction to grant such order (see also CONTRACT-Mistake)
Belle's Creations and Others v Mutombwa and Others (18/06) [2006] ZWSC 21; SC21/06 (28 June 2006):– jurisdiction – labour matter – High Court having already granted warrant of execution – effect of amendment to Labour Act conferring exclusive jurisdiction in labour matters on Labour Court
Chawora v Reserve Bank of Zimbabwe (HC 668/05) [2006] ZWHHC 59; HH 59-2006 (28 June 2006): High Court – jurisdiction – labour matters – High Court’s jurisdiction not completely ousted – matters which High Court can entertain
Chituku v Minister of Home Affairs and Others (HC 2587/99) [2004] ZWHHC 6; HH 6-2004 (14 January 2004):— High Court — jurisdiction — court’s jurisdiction to afford relief in event of breach of accused person’s constitutional rights – breach founding claim under action injuriarum – claim properly before court
judge (or judicial officer)
S v Paradza (CRB 152/04) [2004] ZWHHC 182; HH 182-2004 (16 November 2004):– judge – recusal – grounds for – trial of fellow judge
Mahata v Chigumira N.O. and Another (HC 747/04) [2004] ZWHHC 24; HH 24-2004 (4 February 2004):– judicial officer – recusal – grounds for – reasonable apprehension of bias – magistrate being interviewed by police after granting bail – should not preside over subsequent application by State to revoke bail
Ntini v Masuku (HCA 90/01) [2003] ZWBHC 69; HB69/03 (12 June 2003):– judge – law-making function of – duty of judge to take progressive approach in order to rectify inequities
jurisdiction-
Dube v Maphepha Sindicate and Others (HC 2112/08) [2009] ZWBHC 4; HB 5-09 (15 January 2009):– court deciding matter outside limits of monetary jurisdiction – decision void and of no effect
Surtee v Surtee (CIV App 333/06) [2008] ZWHHC 7 (13 February 2008):– children’s court – custody order granted by High Court – juvenile court having no jurisdiction to vary such order
Surtee v Surtee (CIV App 333/06) [2008] ZWHHC 7 (13 February 2008):– two courts having jurisdiction over same matter – one court seized with the matter – other court, even a senior one, having no jurisdiction to deal with the matter
Pondoro (Pvt) Ltd and Another v Nemakonde and Another (HC 191/08) [2008] ZWHHC 84; HH 18-2008 (20 January 2008):magistrates court – jurisdiction – eviction – interdict amounting to constructive eviction – such order subject to normal monetary jurisdiction of court
Mawere v Agricultural Finance Corporation (HC 1615/2001) [2006] ZWHHC 46; HH 46-2006 (29 March 2006):– jurisdiction – labour matter – court’s jurisdiction ousted, even in case previously pending before the court
Zhakata v Mandoza N.O. (HC 11517/03) [2004] ZWHHC 194; HH 22-2005 (9 December 2004): – High Court – jurisdiction – labour matters – review – no jurisdiction to entertain review in the first instance
S v Zendere HB-19-04 (Ndou J):– jurisdiction – criminal matter – crime having
substantive effect in neighbouring country – accused a national of
Stanmarker Mining (Pvt) Ltd v Metallon Corporation Ltd & Ors HH-55-03 (Chinhengo J):– jurisdiction — peregrinus — need for defendant to be present in Zimbabwe or have property capable of attachment– defendant company having only an indirect interest in company owning property within Zimbabwe – court having no jurisdiction
labour court
Export Leaf Tobacco Company of Africa (Pvt) Ltd. v Gwavana (66/06) [2006] ZWSC 45; SC45/06 (6 October 2006):– Labour Court – appeal to Supreme Court – point of law – what is – requirement for employee to disclose conflict of interest in a particular form – statement that no conflict of interest existed – whether such statement constituted misconduct involves a point of law
N E I
Zimbabwe Alloys Ltd. v Muchohonyi (48/03) [2006] ZWSC 7; SC7/06 (30 March 2006):– Labour Court – factors Court should take into account in determining penalty – obliged to take into account aggravating factors as well as mitigating ones
magistrates court-
Mandava v Chasweka (CIV Appeal 532/05) [2008] ZWHHC 42 (8 May 2008):– proceedings before – requirement to follow correct rules of procedure – not permissible for court to proceed on informal basis even with unrepresented parties
Pondoro (Pvt) Ltd and Another v Nemakonde and Another (HC 191/08) [2008] ZWHHC 84; HH 18-2008 (20 January 2008):-magistrates court – grounds for review – gross irregularity – includes conduct which though well-intentioned and bona fide, prevented a fair trial
Dzeka v Nyabango (HC CIV (A) 310/02) [2004] ZWHHC 20; HH 20-2004 (25 February 2004):– magistrates court – jurisdiction – action for ejectment – amount in “clear value to the occupier” – meaning of – person occupying house belonging to another after house sold to a third party – purchase price exceeding amount prescribed in rules – not relevant to question of jurisdiction
officers of
Tendere v
Supreme Court
Nherera v Lilian Kudya N.O and Another (276/06) [2007] ZWSC 89 (18 October 2007) :– jurisdiction – review – court’s powers of review – no power to entertain review launched by a party – limits to court’s powers to undertake review of proceedings of lower court
Fuyana v Moyo ( 236/00) [2006] ZWSC 54; SC54/06 (30 November 2006):-Supreme Court – powers – inherent jurisdiction to control processes and protect itself from abuse – vexatious litigant being required to obtain leave for future litigation over disputed subject
Criminal law-
general principles-
S v Chikanda (44/03) [2006] ZWSC 83; SC99/05 (16 October 2006):– general principles – defences – diminished responsibility – not a complete defence – may mitigate sentence – evidence – need for medical evidence to be supported by other evidence – not sufficient to rely solely on medical reports
S v Masuku HB-114-04 (Ndou J):– Attorney-General – concession by – Attorney-General’s representative conceding that leave to appeal should be granted – whether such concession may be withdrawn – procedure to follow if Attorney-General seeks to withdraw concession
common law offences-
S v Machembo (CRB 1190/2007) [2008] ZWHHC 9 (16 January 2008) :– culpable homicide – foreseeability – accused creating dangerous situation by driving away from police road block – police officer firing at accused’s vehicle and killing passenger – death not foreseeable consequence of accused’s acts
S v Tsvangirai (CRB 224/02) [2004] ZWHHC 169; HH 169-2004 (15 October 2004):– common law crimes – high treason – overt acts – hostile intent – discussion of possibility of treasonous acts – mere discussion in absence of incitement or agreement – not treason
S v Reza (Crim. Appeal 159/03) [2003] ZWHHC 219; HH 2-2004 (11 February 2003):Common law offences – assault with intent to do grievous bodily harm – how intent to be inferred – not necessary that grievous bodily harm should actually occur – acts amounting to torture, intended to induce a confession – intent to do grievous bodily harm proved
S v Munjoma and Another (HC 816/04) [2004] ZWHHC 91; HH 91-2004 (7 April 2004):– common law offences – malicious injury to property – jointly owned property – matrimonial property – spouse damaging jointly owned property – may be convicted of malicious injury to property
incohate offenses
S v Muchaparara and Another (HC 43-4/02) [2004] ZWHHC 99; HH 99-2004 (20 April 2004):– inchoate offences – accessory after the fact to an offence – whether existence of such an offence is necessary – conduct covered completely by charge of defeating or obstructing the course of justice
statutory offences-
S v Moyo and Another (HC 221/08 & 223/08) [2009] ZWBHC 18; HB 21-09 (19 February 2009): – Copyright and Neighbouring Rights Act [Chapter 26:05] – s 59 – selling of infringing copies of CDs and DVDs – need to allege which copyright is being infringed and who owner of copyright is – possession of equipment designed or adopted for making infringing copies – need to allege and prove that articles in question were specifically designed or adopted – ordinary computers not covered
S v Mhomho (74/06) [2007] ZWSC 105; SC57/06 (23 January 2007): – murder – defences – justifiable killing – killing of person attempting to escape lawful arrest – reasonable force – when killing justifiable
State v Dzvairo & Others (CRB B720/05) [2006] ZWHHC 134; HH 2-2006 (12 January 2006):– statutory offences – Official Secrets Act [Chapter 11:09] – s 4(1)(d) – disclosure of information by public servant – absolute nature of offence – irrelevance of prejudice to State – s 4(2) – disclosure of information relating to “security of Zimbabwe” – wide meaning of phrase – includes political, economic and financial well-being of the country – s 11 – Attorney-General’s authority to prosecute – requirement for – reason for requiring authority – authority granted for prosecution under one section but accused charged under another – not necessarily a fatal defect
Paradza v State (HC 2475/03) [2006] ZWHHC 7 (10 January 2006): – statutory offences – Prevention of Corruption Act [Chapter 9:16] – s 4(a) – public officer acting contrary to duties as such for purpose of showing favour or disfavour – inciting a public officer to commit such offence – not necessary that any inducement be offered – judge urging fellow judge to act in a way that would result in favour being shown to himself or a business colleague
S v Telecel Zimbabwe (Pvt) Ltd (CA 342/2004) [2006] ZWHHC 55; HH 55-2006 (24 May 2006) :(sentence) – statutory offences – exchange control – purchasing foreign currency without exchange control authority – company buying foreign currency on black market due to unavailability of foreign currency on official market – currency required to service debts and keep company in business – “special reasons” shown for not imposing mandatory minimum sentence
S v Mzanywa, S v Chibharo and Others; S v Mnyambo; S v Mashawina (HC 972/05, 275/05, 1186/05) [2006] ZWBHC 9; HB 9/06 (23 February 2006):– statutory offences – stock theft – penalties applicable – person committing offence before but being convicted after penalties increased – Stock Theft Act [Chapter 9:18] – s 12
Attorney-General v Mbewe HB-91-04 (Ndou J):(statutory offences) – Dangerous Drugs Act [Chapter 15:02] – s 9(b) – possession of dagga – meaning of – normal meaning to be given to concept of possession – need for State to show physical detention as well as intention to exercise control
S v Chikunguruse (CRB 30/03) [2004] ZWHHC 125; HH 125-2004 (1 June 2004): (sentence) – statutory offences – Sexual Offences Act [Chapter 9:21] – s 3(1) – committing an immoral or indecent act with or upon a young person – need for severe punishment for sexual abuse of young children
S v Chiadzwa (CA 160/03) [2004] ZWHHC 28; HH 28-2004 (25 February 2004):– statutory offences – Copyright Act [Chapter 26:10] – s 27(1)(e) – by way of trade exhibiting in public an infringing copy of work in which copyright exists – artistic works – when copyright exists – no protection of ideas alone –knowledge by accused that item exhibited is infringing copy of work in which copyright exists – what must be shown
S v Kademaunga (CRB 195/02) [2003] ZWHHC 126; HH 126-2003 (27 August 2003):Criminal law (statutory offences) -Concealment of Birth Act [Chapter 9:04] -s 2 - hiding live infant with intent to conceal birth - offence committed - same conduct could be charged under other statutes
Criminal procedure-
general-
S v Tsatsa and Another (HC 384/07) [2007] ZWBHC 38; HB 38/07 (29 March 2007) – review – purpose of – no discernable irregularity in proceedings – magistrate having misgivings about arrangements between prosecution and defence – not a ground for review
S v Thebe (HC85/06) [2006] ZWBHC 16; HB 16/06 (7 March 2006):– prosecutor – dominus litis – limits to – court’s power to ensure suitable charges are preferred
Editor’s note: See S v Chidodo & Anor 1988 (1) ZLR 299(H), where it was held that the judge’s powers are limited to withholding his certificate on review.
S v Muendawoga (CH 1108/03) [2004] ZWHHC 10; HH 10-2004 (28 January 2004):– record – status of – exclusive memorial of proceedings – amendment of record – limited circumstances in which record may be amended
arrest
Nyamhoka
& Others v Officer Commanding ZRP,
:– arrest – detention beyond period of 48 hours after arrest – unlawful without warrant for further detention – need for warrant to be produced
Mazunga & Ors v Minister of Home Affairs & Ors HB-98-03 (Ndou J):- arrest - seizure of goods found on arrested person - right of police to continue to hold goods even if person released, provided charges still to be brought
bail-
Dhlamini and Others v S (Ruling) (HH 56-2009, B521-23/09) [2009] ZWHHC 2 (11 May 2009):– application – accused indicted for trial before High Court – need for new bail application to High Court – previous bail revoked
Mukoko v S (HC B88/09) [2009] ZWHHC 12; HH 24-2009 (4 February 2009) :- application – when may be made – need for court to be apprised of charge and to decide whether there is legal justification for accused to be placed on remand – mere appearance in court without more is not sufficient
Chiyangwa v Attorney-General & Ors S-1-04 (Chidyausiku CJ, Cheda & Gwaunza JJA concurring): – bail – appeal against decision – only one appeal permissible, irrespective of who brings appeal
Attorney-General v Fundira (54/04) [2004] ZWSC 33; SC33/04 (17 May 2004):– bail – appeal by Attorney-General against grant of – leave to appeal required – application made for leave to appeal within 7 days of bail being granted – sufficient compliance with requirement to note appeal within 7 days
Criminal procedure – bail – decision made by High Court following appeal from magistrates court – when appeal against High Court’s decision may be made
S v Makamba (19/04) [2004] ZWSC 30; SC30/04 (23 April 2004):– bail – application – factors to consider – need for court to assess strength of State case – allegations in police papers raising prima facie case – need for accused to rebut allegations and show that he should be granted bail
S v Kureneri HH-111-04 (Hlatshwayo J):– bail – grant of – principles – onus on accused to show that he should be admitted to bail – whether such onus exists – no legislative justification for holding that onus rests on accused
extradition-
Mann v
Mann v
Mann v
forfeiture
S v Zendera (Gokwe CRB 449/04) [2004] ZWHHC 157; HH 157-2004 (22 September 2004):– forfeiture – following conviction – what may be forfeited – article by which offence committed – meaning of – article must be one which enables offender to commit offence or aids offender in commission of offence
Associated Newspapers of Zimbabwe (Pvt) Ltd v Madzingo NO and Another (HC 8191/03) [2003] ZWHHC 157; HH 157-2003 (18 September 2003)- seizure of articles - seizure without warrant - when lawful - need for police to show that they believed, on reasonable grounds, that a warrant would be issued if it was applied for and the delay in obtaining a warrant would prevent the seizure or defeat the object of the search - effect of failure to show this:
jurisdiction-
S v Nkomo S-79-06 (Chidyausiku CJ, Ziyambi JA & Ndou AJA concurring) (Judgment delivered 31 May 2007): – jurisdiction – territorial – murder – Zimbabwe national committing murder in neighbouring country – need for some element of the crime, or the harmful effect thereof, to have occurred in Zimbabwe
plea-
S v Paragon Real Estate and Another (CRB 40-41/07) [2009] ZWHHC 39; HH 35-2009 (20 March 2009) : – pleas open to accused – case subject of previous civil trial – not permissible to rely on exceptio rei judicatae and plead autrefois acquit
S v Mutizwa (HC1896/05) [2006] ZWBHC 4; HB 4/06 (19 January 2006);– plea – questioning by magistrate in terms of s 271(2)(b) of Criminal Procedure and Evidence Act [Chapter 9:07] – responses by accused not amounting to irrevocable admission of essential elements of offence – plea of not guilty should be recorded
S v Makuvatsine HH-102-04 (Uchena J, Garwe JP concurring) :– plea – guilty – procedure following – need for magistrate to be satisfied that plea is genuine and that there is no defence – requirement to alter plea to one of not guilty if any doubt raised, even if such doubt raised in mitigation
review
Attorney-General v Makamba (19/04) [2004] ZWSC 74; SC74/04 (30 August 2004):– review – incomplete proceedings – refusal by magistrate to discharge accused at end of State case – refusal based on findings of fact – not a gross irregularity entitling High Court to interfere on review
sentence-
S v Mahuni (CRB RMA 54/08) [2009] ZWHHC 8; HH 4-2009 (21 January 2009) :– common law crimes – rape – juvenile offender – appropriate sentence – need to pursue options other than imprisonment
S v Sibanda (Crim. Appeal No. 169/06 ) [2008] ZWSC 5 (10 March 2008):– passing of – by whom must be passed – trial in High Court – murder trial – original judge not having decided issue of extenuation – original judge then becoming unavailable to complete the case – permissible for another judge to pass sentence
S v Shumba (CRB 477/07 ) [2007] ZWHHC 81 (19 October 2007) :(sentence) – common law crimes -- assault – accused in a position of authority – serious view taken of abuse of authority – appropriate sentence
S v Sithole (70/05) [2007] ZWSC 16; SC16/07 (17 July 2007): (sentence) – common law crimes – murder – extenuating circumstances – what are – payment of compensation to family of victim – mitigating but not extenuating
S v Sibanda (HCA 145/03) [2006] ZWBHC 102; HB 102/06 (12 October 2006);(sentence) – general principles – factors to consider – prevalence of offence – trivial offence – relevance of prevalence
S v Moyo and Others (HC 2669/06) [2006] ZWBHC 114; HB 114/06 (16 November 2006):-(sentence) – general principles – matters to be considered – prison sentences – approach to be taken to
S v Mbulawa (HC 1869/06) [2006] ZWBHC 62; HB 62/06 (13 July 2006:-(sentence) – statutory offences – Sexual Offences Act [Chapter 9:07] – s 3(1)(b) – committing an immoral or indecent act with or upon a young person – serious view taken by courts of sexual abuse of young persons
S v Ndlovu, S v Chitenda (Crim (A) 107/06, Crim (A) 112/06) [2006] ZWHHC 70; HH 70-2006 (12 July 2006):(sentence) – statutory offences – stock theft – penalties applicable – person committing offence before but being convicted after penalties increased – increased penalty not applicable – theft of equine animal – does not include theft of a donkey
Editor’s note: this decision should be compared to that in S v Mzanywa & Ors HB-9-06 (Ndou J) (judgment delivered 23 February 2006), where the opposite conclusion was reached. With respect, it would appear that the later decision is to be preferred, being in accordance not only with principle but also with s 18(5) of the Constitution, the relevant portion of which provides that “no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed” (emphasis supplied).
S v Masundulwane (HC4632/04) [2006] ZWBHC 22; HB 22/06 (16 March 2006):– verdict or sentence – alteration – when verdict or sentence may be altered by trial court
S v Telecel Zimbabwe (Pvt) Ltd (CA 342/2004) [2006] ZWHHC 55; HH 55-2006 (24 May 2006) :(sentence) – statutory offences – exchange control – purchasing foreign currency without exchange control authority – company buying foreign currency on black market due to unavailability of foreign currency on official market – currency required to service debts and keep company in business – “special reasons” shown for not imposing mandatory minimum sentence
S v Mzanywa, S v Chibharo and Others; S v Mnyambo; S v Mashawina (HC 972/05, 275/05, 1186/05) [2006] ZWBHC 9; HB 9/06 (23 February 2006):– statutory offences – stock theft – penalties applicable – person committing offence before but being convicted after penalties increased – Stock Theft Act [Chapter 9:18] – s 12
S v Chikunguruse (CRB 30/03) [2004] ZWHHC 125; HH 125-2004 (1 June 2004): (sentence) – statutory offences – Sexual Offences Act [Chapter 9:21] – s 3(1) – committing an immoral or indecent act with or upon a young person – need for severe punishment for sexual abuse of young children
S v Banda HB-72-04 (Cheda J):(sentence) – general principles – community service – community service officers – recommendations of – need for court to consider such recommendations – if recommendation not accepted, need for court to state reasons
S v Kelly HH-33-04 (Mungwira J, Uchena J concurring):sentence) – general principles – factors to be taken into account – views expressed by complainant as to what sentence should or should not be imposed – such views to be given proper weight
S v Chayisva (CRB C197/03) [2004] ZWHHC 17; HH 17-2004 (28 January 2004):(sentence) – general principles – globular sentence for multiple offences – limited circumstances in which globular sentence appropriate
S v Damba; S v Chanakira (CRB C87/03) [2004] ZWHHC 69; HH 69-2004 (18 March 2004):(sentence) – general principles – multiple counts – treating as one for sentence – principles – when a globular sentence may and may not be imposed
trial
S v Tambo (CRB 1006-7/06) [2007] ZWHHC 56; HH 56-2007 (12 July 2007):– trial – conduct of – unrepresented accused – judicial officer’s role and duties
S v Dikatholo (HCA 120/06) [2007] ZWBHC 36; HB 36/07 (8 March 2007):– trial – conduct of – interpreter – accused being denied use of interpreter conversant with his own language – trial not fair – fatal irregularity
S v Manga (CRB 7087/05) [2006] ZWHHC 122; HH 122-2006 (15 November 2006):– trial – sentence – passing of – when may be passed by magistrate other than magistrate who convicted accused – “in the absence of the magistrate who convicted the offender” – meaning – time, distance and circumstances to be considered
S v Mutizwa (HC1896/05) [2006] ZWBHC 4; HB 4/06 (19 January 2006):– trial – recusal of judicial officer – application – when judicial officer should recuse himself – application on grounds of judicial officer’s reputation for imposing severe sentences – not an indication of bias
S v Tsvangirai and Others (CRB 244/02) [2003] ZWHHC 119; HH 119-2003 (8 August 2003):-Criminal procedure B discharge at close of State case B when may be granted B State evidence utterly unreliable B rarity of cases where such a finding could be made
Customary law
headman
Gweru Rural Election Petition HB-113-05 (Cheda J) (Judgment delivered 16 March 2006):– headmen – vacation of position – how headman should convey his resignation.
Editor’s note: The date given on the judgment is 16 March 2005 but this must be an error
marriage-
Mandava v Chasweka (CIV Appeal 532/05) [2008] ZWHHC 42 (8 May 2008):– unregistered customary law union – division of property following break-up of union – matter heard before magistrates court – need for parties to choose between customary and general law – effect of choosing general law
Muringaniza v Munyikwa (HC 2163/2000) [2003] ZWBHC 102; HB102/03 (9 October 2003): C marriage C formalities required B strict adherence to ritual not essential B undissolved previous marriage under Marriage Act C second marriage void C division of matrimonial property
prescription
Muwalo v Mugunga (CIV (A) 108/03) [2006] ZWHHC 60; HH 60-2006 (14 June 2006):– prescription – not applicable to claim under customary law – claim may be brought at any time if it is clear and acceptable – effect of delay in bringing claim
Damages
assessment of-
Mazibuko v Sithole and Others (HC 1565/03) [2009] ZWBHC 5; HB 6-09 (15 January 2009) :-– delictual – actio injuriarum – quantum – police officer forcefully preventing legal practitioner from obtaining access to arrested client – exemplary damages justified
Rowland Electro Engineering Private Limited t/a SITA Sound Forex v Zimbabwe Banking Corporation Limited (HC 7431/03) [2007] ZWHHC 3; HH 3-2007 (10 January 2007):– assessment – breach of contract – general and special damages – distinction between – plaintiff’s duties when special damages claimed – loss of profits – whether general or specific damages may be claimed
Ncube v Wankie Colliery Company and Another (HC 1442/03) [2007] ZWHHC 8; HH 8-2007 (23 February 2007) – loss of support – parent claiming damages arising out of death of child – duty on child to support parent must have existed during child’s lifetime
Delict
Garwe v Zimind Publishers (Private) Limited (HC 11304/04 ) [2007] ZWHHC 80 (10 October 2007):– defamation – what is defamatory – ordinary meaning of words used – reasonable reader’s understanding of words used – context in which words are used – defences – qualified privilege – variance between true facts and what was reported – inference of improper motive – defence failing
Moyo v Chipanda HB-98-04 (Chiweshe J):– action injuriarum – defamation – plaintiff – reference to – defamatory statement not identifying plaintiff – subsequent publication of a statement disclosing plaintiff’s identity and linking him with previous defamatory statement – plaintiff entitled to base action on earlier statement
Nyandoro v Tizirai (HC 5679/2004) [2006] ZWHHC 12; HH 12-2006 (8 February 2006):– adultery committed with plaintiff’s wife – loss of consortium – damages for loss of consortium not awardable where marriage subsists and adultery has been condoned – contumelia – damages for – factors to take into account
Odenda al v Inn On The Ruparara (HC 2371/03) [2006] ZWHHC 13 (3 January 2006):– animal – action de pauperie – requirements for – defences available – normally docile horse reacting to external stimulus – not acting contra naturam
Chituku v Minister of Home Affairs and Others (HC 2587/99) [2004] ZWHHC 6; HH 6-2004 (14 January 2004):– actio injuriarum – extent of – act violating dignity of plaintiff – includes inhuman or degrading treatment of an arrested or detained person see also Tendere v Harare City Council S-66-03 (Court- officers of)
aquilian action-
Borders Timber Ltd v Zimbabwe Revenue Authority (HC 6155/06) [2009] ZWHHC 23; HH 13-2009 (25 February 2009) : – essentials – need to plead and prove both negligence and wrongfulness – public official miscalculating duty owed on imported items – whether duty of care owed to importer
Nyaguse v Skinners Auto Body Specialists and Another (HC 2969/06) [2007] ZWHHC 32; HH 32-2007 (22 May 2007):– Aquilian action – liability – wrongfulness and fault – distinction between – need to aver and prove both
liability
Khosa v Cargo Carriers HH-90-06 (Uchena J) (Judgment delivered 23 August 2006)– liability – vicarious liability – employer’s liability – driver carrying passenger in contravention of explicit instructions to the contrary and injuring passenger due to his negligent driving – prohibition limiting sphere of employment – employer not liable
Munengami v Minister of Defence (HC 11437/03) [2006] ZWHHC 45; HH 45-2006 (6 April 2006):– liability – vicarious liability – principles – when employer will be held liable for acts of employee – soldiers sent to assist police assaulting civilians – acting outside scope of employment (Editor -compare- Gweshe v Minister of Defence (HC 9784/03) [2006] ZWHHC 28; HH 28-2006 (1 March 2006) where the vicarious liability of the Minister for other assaults on the same occasion was not disputed)
negligence
Ncube v Wankie Colliery Company and Another (HC 1442/03) [2007] ZWHHC 8; HH 8-2007 (23 February 2007) :negligence – claim – against employer by employee or dependant of employee for injury or death arising during course of employment – limitations on such action – when claim may arise out of vicarious liability
Stanbic Bank Zimbabwe Limited v Durand (HC 9116/03) [2007] ZWHHC 54; HH 54-2007 (20 June 2007):– negligence – duty of care – when arises – person recommending potential customer to bank – whether such person owes duty of care to bank
Commercial Union Fire Marine and General Insurance Company Ltd. and Others v Chingwaru and Another (73/01) [2004] ZWSC 50; SC50/04 (9 September 2004):– negligence – sudden emergency – limits to – need for proximate connection between act taken to avoid danger and the damage caused by that act – where no such connection, actor cannot rely on sudden emergency
Tredgold N.O. v National Railways Of Zimbabwe (HC 3937/2000) [2004] ZWHHC 142; HH 142-2004 (28 July 2004):– negligence – public road crossing railway line – rights and duties of public and train driver – precedence given to train – speed at which train should approach crossing
passing off
Polaris Zimbabwe (Pvt) Ltd. v Zapchem Detergent Manufacturers CC t/a Starchem (49/03) [2004] ZWSC 68; SC68/04 (16 December 2004):– passing off – goodwill – right to – product manufactured by one person but sold or marketed exclusively by another person – limited circumstances where trader can acquire goodwill in respect of goods manufactured by another
Unilever P.L.C. and Another v Vimco (Pvt) Ltd and Another (HC 6627/03) [2004] ZWHHC 175; HH 175-2004 (3 November 2004):– passing off – requirements to establish claim – need to show existence of reputation and goodwill – likelihood of deception – similar products, sold to similar clientele, bearing similar trade names
Education
Dzvova v Minister of Education Sports and Culture and Others (91/06) [2007] ZWSC 26; SC26/07 (10 October 2007): – school rules – legal status of – whether they constitute a “law” for purposes of Constitution
Association of Trust Schools, The and Others v Minister of Education, Sport And Culture and Another (HC 5883/06) [2007] ZWHHC 16; HH 16-2007 (21 March 2007) :– school – non-government school – fees which may be charged – whether approval of Secretary for Education required
St George's College Parents Teachers Association (Pta) and Another v Minister Of Education, Sports And Culture and Others (HC 5482/04) [2004] ZWHHC 112; HH 112-2004 (11 May 2004): – non-governmental school – fees charged by – fees in excess of amount approved by Secretary of Education – courses open to Ministry – no power given to Minister or Secretary to close school
Elections
Nyamapfeni v Constituency Registrar Mberengwa East and Others (EP 7/08) [2008] ZWHHC 27 (22 February 2008) :– appeal – against rejection of appellant’s nomination as parliamentary candidate – when appeal must be lodged – period of four days within which to lodge appeal – includes weekends and public holidays
Sibanda v President of the Republic of Zimbabwe (HC 897/08) [2008] ZWBHC 28; HB 46-08 (9 May 2008):– candidate – death of before election – requirement to hold fresh election – declaration by Chief Elections Officer that proceedings are void – nature of such declaration – no obligation on Chief Elections Officer to notify President of his declaration – President required within 14 days to order new election
Moyo and Another v President Robert Mugabe N.O. (HC 609/08 ) [2008] ZWHHC 46 (12 February 2008):– constituencies and wards – boundaries of – publication of – proclamation itself not defining boundaries but incorporating them by reference to report of Delimitation Commission – such report thereby becoming part of proclamation
Simbarashe v Zimbabwe Electoral Commission (EP 122/08 ) [2008] ZWHHC 49 (9 June 2008):– election petition – when must be presented – should be presented within 14 days of the declaration of the result for the last constituency – security for costs – when must be furnished – effect of failure to do so timeously – Zimbabwe Electoral Commission – joinder of – not proper to join Commission as respondent in an election petition
Simbarashe v Zimbabwe Electoral Commission (EP 122/08 ) [2008] ZWHHC 49 (9 June 2008):– election petition – notice to respondent – when must be presented – effect of failure to present within stipulated time – whether substantial compliance with provisions of Act sufficient – Electoral Court – has no power to condone non-compliance with Act – service at respondent’s party offices – not service as required by the Act
Muzenda v Kombayi and Another (EP 119/08 ) [2008] ZWHHC 51 (10 June 2008) :– election petition – notice to respondent – where must be presented – service at respondent’s party offices – not compliance with requirement – security for costs – when must be provided – service late due to failure of public official – substantial compliance with requirement sufficient – Zimbabwe Electoral Commission – joiner of – whether proper
Makone and Another v Chairperson of the Zimbabwe Electoral Commission and Another (EP 17/08) [2008] ZWHHC 38 (13 March 2008) :-– Electoral Court – jurisdiction – subject matter of petition or application not specifically allocated to Electoral Court – court having no jurisdiction to hear matters not specifically provided for in Electoral Act
Movement for Democratic Change and Another v Chairperson of the Zimbabwe Electoral Commission and Others (E/P 24/08) [2008] ZWHHC 1 (14 April 2008):– presidential election – results – announcement of – need for results to be processed with urgency – when delay permissible – recount ordered on initiative of Election Commission – when may be ordered – may justify delay in announcing results
Stringer v Chairperson Zimbabwe Electoral Commission and Others (HC 6350/06) [2007] ZWHHC 41; HH 41-2007 (13 June 2007) :– election – elections of mayor and councillors – when such elections must be held – by-election – distinction from general election – postponement of elections – grounds for – ward and city boundaries not delineated
Marimo and Another v Minister of Justice, Legal and Parliamentary Affairs and Others (60/05/01) [2006] ZWSC 60; SC 25/06 (25 July 2006):– Electoral Court – appointment of High Court judges to preside over Electoral Court – need to follow procedure set out in s 91 of the Constitution – system of appointment under Electoral Act not in conformity with Constitution – appointments invalid
Registrar-General of Elections v Tsvangirai (HC 10149/02) [2003] ZWHHC 142; HH 142-2003 (21 August 2003): -constituency registrars - transmission of ballot papers and other electoral material following election to Registrar-General – Registrar-General s duty to ensure that materials transmitted
Mugadzahweta v Banda & Ors HH-74-03 (Hungwe J):Elections B urban council election B candidate for election as councillor B disqualification B whether candidate disqualified because not resident in ward
Mnkandla v Mudzviti and Others (HC1654/2003, HC1760/2003) [2003] ZWBHC 92; HB92/03 (29 August 2003):Elections -urban council election - mayor - qualifications for election as mayor - O-level passes, including one in English - includes pass in English literature
Employment
general-
National Employment Council for the Catering Industry v Catering and Hospitality Industry Workers' Union of Zimbabwe (120/07) [2008] ZWSC 16 (13 May 2008): – employment councils – voluntary employment councils – membership – entitlement to – admission to membership in discretion of council – no trade union entitled to membership as of right
Zimbabwe Revenue Authority v Mpindiwa (Civil Appeal No. 66/06) [2007] ZWSC 111; SC85/06 (17 July 2007) :– appeal – to Labour Court – need for matter to have been determined by the tribunal a quo – tribunal failing to make decision – no appeal possible – correct course for employee to take
Code of Conduct-
Zimpost (Pty) Ltd v Communications and Allied Workers Union (60/06/01) [2009] ZWSC 22; SC 23/09 (19 May 2009) :- disciplinary proceedings under – code of conduct not prohibiting act or employment inconsistent with express or implied conditions of employment – right of employer to proceed under s 12B(2)(b) of Labour Act (See below, under EMPLOYMENT (Strike).
Murawo v Grain Marketing Board (60/07/01) [2009] ZWSC 17; SC 27/09 (11 May 2009):– proceedings under – penalty – dismissal – when appropriate – misconduct inconsistent with fulfilment of conditions of service – usually will justify dismissal unless shown to be trivial
Toyota Zimbabwe v Posi (55/07 ) [2007] ZWSC 90 (4 March 2007):– disciplinary proceedings under – penalty which may be imposed – code providing different penalties for a first offence and for subsequent offences – serious offence committed – employer no limited to penalties for first offence
Duly Holdings v Chanaiwa (68/05) [2007] ZWSC 17; SC17/07 (9 July 2007):– proceedings under – code not covering specific situation – flexible approach to be followed – management adapting procedures to ensure fair hearing
ZIMASCO v Zakeyo S-70-06 (Malaba JA; Chidyausiku CJ & Cheda JA concurring) (Judgment delivered 8 March 2007):– code of conduct – offences under – theft – definition including unauthorised use – not necessary to prove common law theft or fraud – conduct of interest – what must be shown – not necessary that actual conflict of interests occurs
Watyoka v Zupco (Northern Division) (23/04) [2006] ZWSC 76; SC87/05 (25 September 2006):– code of conduct – proceedings conducted under – when may be referred to a labour relations officer – no referral allowed once determination made under code of conduct – referral before determination made only permissible after 30 days – such referral optional – time limits within which labour officer may hear matter
Delta Operations Ltd. t/a Mega Industries v Mpepula (35/02) [2004] ZWSC 60; SC60/04 (9 September 2004):– code of conduct – decision made in terms of code of conduct – once made, cannot be revoked – decision-maker functus officio
Makwiro Platinum Mines v Paradzayi (36/04) [2004] ZWSC 46; SC46/04 (9 September 2004):– code of conduct – proceedings under – conduct complained of – whether work-related – acts taking place when employee not actually working – acts committed while employee staying at accommodation provided by employer and adversely affecting fellow employees – such conduct work-related and subject to code of conduct
retrenchment
Zindoga & Others v Minister, Public Service, Labour and Welfare (HC 4791/2005) [2006] ZWHHC 75; HH 75-2006 (5 July 2006):– retrenchment – decision by Minister – whether Minister obliged to receive submissions from parties
Mugabe and Others v Zvimba Rural District Council (83/04) [2006] ZWSC 29; SC29/06 (31 July 2006): – retrenchment – procedure for – role of works council – employer and employees reaching agreement without involvement of works council – works council subsequently ratifying agreement – retrenchment lawful
suspension
United Bottlers v Kaduya (63/05) [2006] ZWSC 34; SC34/06 (12 September 2006): – suspension – unlawful – remedies open to employee who is unlawfully suspended from employment – effect of taking other employment
City of
Collective Job Action(See 'Strike' below)
contract-
Railway Artisans Union and Another v Railmed and Others (HC 7063/06) [2008] ZWHHC 85; HH 111-2008 (29 January 2008): – variation of terms – conditions of service – what constitute – provision of medical aid – employers’ obligation to pay contributions to medical aid society – medical aid society altering levels of benefits in accordance with contributions – not a change in employees’ conditions of service
Agricultural Bank of Zimbabwe Ltd. t/a Agribank v Machingaifa and Another (Civil Appeal No. 11/06 ) [2008] ZWSC 6 (17 March 2008) – variation of terms – when employer entitled unilaterally to alter defined rights to salary and allowances
Lever Brothers v Bimha and Others (66/03) [2004] ZWSC 85; SC85/04 (30 September 2004) :– contract – terms of – collective bargaining agreement – “hours of work” – meaning – such hours not including thirty minute break allowed during every shift
termination
Thomas Meikles Stores v Mwaita and Another (96/06) [2007] ZWSC 21; SC21/07 (8 October 2007):– termination – dismissal – constructive dismissal – employer presenting employees with intolerable options
First Mutual Life Ltd. v Muzivi (82/06) [2007] ZWSC 9; SC9/07 (29 May 2007):– contract – termination – unlawful – damages in lieu of reinstatement – quantification by Labour Court – what Court is required to do – need to specify, in figures, the amounts that must be paid
City of Harare v Rusvingo (38/04) [2006] ZWSC 65; SC73/05 (25 January 2006):– contract – termination – application for authority to dismiss – application containing additional grounds to those set out in letter of suspension – main ground identical – application valid
Stanbic Bank Zimbabwe Ltd. v Charamba (43/05) [2006] ZWSC 69; SC77/05 (30 January 2006):– contract – termination – retrenchment – failure to comply with peremptory requirements of relevant regulations – retrenchment invalid – retrenchment committee – role in retrenchment process – must play an active role in securing agreement between parties
Standard Chartered Bank Zimbabwe Ltd. v Chipiningu (302/2000) [2004] ZWSC 152; SC104/02 (7 September 2004):– termination – grounds for – gross negligence – what constitutes “gross” negligence – total disregard of duty resulting in loss to employer
Mvere v Tanganda Tea Company Ltd. (54/04) [2004] ZWSC 130; SC130/04 (9 November 2004):– contract – termination – grounds for – misconduct inconsistent with terms of employment – no evidence of intention to defraud – when dismissal justified
dismisal-
City of Harare v Zvobgo (309/05) [2009] ZWSC 12 (2 April 2009): – senior employee – dismissal of – dismissal must be approved by Local Government Board – decision to dismiss not a decision of the Board – not necessary to cite Board in proceedings arising out of dismissal
Business Equipment Corporation v Mtetwa (13/05) [2007] ZWSC 14; SC14/07 (16 July 2007):– grounds for – absence from work without reasonable excuse – appeal against order for reinstatement pending – effect of noting such appeal – order for reinstatement stayed – reasonable excuse for employee to be absent
Olivine Industries (Pvt) Ltd. v Nharara (65/04) [2006] ZWSC 77; SC88/05 (7 March 2006):– wrongful dismissal – damages for – how to be assessed – relevance of back-pay in assessing damages – rate of compensation – rate should be that applicable at the time – time taken to obtain alternative employment – other sources of income – need for evidence
employee-
Gurava
v Traffic Safety Council of
strike-
Zimpost (Pty) Ltd v Communications and Allied Workers Union (60/06/01) [2009] ZWSC 22; SC 23/09 (19 May 2009) :- disciplinary proceedings arising from – strike over before disposal order issued – employer’s right to take disciplinary action – code of conduct not prohibiting act or employment inconsistent with express or implied conditions of employment – right of employer to proceed under s 12B(2)(b) of Labour Act.
Zimbabwe Graphical Workers Union v Federation of Master Printers of Zimbabwe and Another (8/06) [2007] ZWSC 25; SC25/07 (14 September 2007) :– collective job action – lawfulness of – dispute of interest and dispute of right – distinction between – show cause order by Minister – not open to Minister to issue second show cause order in respect of same matter – correct course for parties to follow in event of no settlement being reached- right to resort to collective job action – matter not settled within 14 days of notice of collective action being given – no requirement for fresh notice to be given if certificate of no settlement issued after expiry of 14 day period – collective job action lawful if resorted to within a reasonable time
Tel
One (Pvt) Ltd. v Communication and Allied Services Workers' Union of
Marondera Rural District Council v Morris and Others (09/04) [2006] ZWSC 68; SC76/05 (16 January 2006):– strike – action by employer – employer not obliged to seek show cause order – entitled to application for authority to terminate striking workers’ employment
Trade Union-
Zimbabwe Banking and Allied Workers Union & Another v Beverley Building Society & Others (HC 4811/05) [2007] ZWHHC 63; HH 63-2007 (17 September 2007):– trade union registered for particular sector – whether employees entitled to join another trade union – whether employer obliged to deduct union dues for union not registered for that sector
Tel One (Pvt) Ltd. v Communication and Allied Services Workers' Union of Zimbabwe (37/05) [2006] ZWSC 26; SC26/06 (12 September 2006) :– trade union – right to participate in legal proceedings – review proceedings – trade union brining application in its own name although not directly a party to proceedings being brought on review – right on union to bring application
Automotive and Allied Workers' Union v Motor Trade
Workers'
unfair labour practice
Mudarikwa and Another v Director of Housing and Community Services NO and Another (78/05) [2007] ZWSC 104; SC56/06 (23 January 2007):– failure to promote person from acting to substantive position – whether promotion a right – legitimate expectation – doctrine not applicable where person not qualified for post, irrespective of experience
TM Supermarkets v TM National Workers’ Committee S-19-04 (Cheda JA, Sandura & Gwaunza JJA concurring):– unfair labour practice – refusal to negotiate wages – “negotiate” – meaning of – a discussion leading to a conclusion – refusal to grant an increase not a refusal to negotiate
Evidence
S v Tambo (CRB 1006-7/06) [2007] ZWHHC 56; HH 56-2007 (12 July 2007) :– reliability – demeanour – extent to which demeanour should be relied on – should only be relied on where determination cannot be made on basis of available evidence
S v Chibaya and Others (CRB 331-5/06) [2007] ZWHHC 4; HH 4-2007 (1 February 2007):-– criminal matter – police investigation diary – whether accused entitled to receive copies of entries in diary
S v Gumbo and Others (CRB 87-92/04) [2006] ZWBHC 46; HB 46/06 (10 May 2006):– extra-curial statement – admissibility – challenge to – multiple accused – desirability of determining admissibility of all challenged statements in one trial within trial rather than piecemeal
Family law
child-
Harris v Harris (HC 3110/08) [2009] ZWHHC 29; HH 20-2009 (26 February 2009):-– abduction – return of child to country of habitual residence – parents having joint custody – one parent bringing child to Zimbabwe – Zimbabwe not thereby becoming country of habitual residence – best interests of child – relevance of
Surtee v Surtee (CIV App 333/06) [2008] ZWHHC 7 (13 February 2008):– children’s court – custody order granted by High Court – juvenile court having no jurisdiction to vary such order
Berens v Berens (HC 7039/08) [2009] ZWHHC 4; HH 28-2009 (6 January 2009):- – custody – rights of custodian parent – right to determine where child should go to school – no obligation to consult non-custodian parent – when custodian parent’s decision may be interfered with
Ralph v Van Vuuren (HC 1813/08) [2009] ZWHHC 9; HH 5-2009 (22 January 2009) :custody and guardianship – distinction between – sole guardianship – application for – need to show that guardian has failed to perform the functions of guardianship
Ex p Ndlovu HB-116-04 (Ndou J):– child – guardianship – application for change of guardianship – need for application to be advertised – advertisement may not be dispensed with
Tawonanhasi v Tshuma & Ors HB-63-08 (Kamocha J) (Judgment delivered 26 June 2008):– custody – to whom should be granted – child born of unregistered customary union – natural parent available and willing to take custody – custody should be granted to such parent in absence of compelling reasons not to
Beckford v Beckford (HC 3480/2003) [2006] ZWHHC 124; HH 124-2006 (20 December 2006):– custody – following divorce – joint custody – whether can be awarded – when appropriate
Domboka v Madhamu (HC 10103/03) [2004] ZWHHC 179; HH 179-2004 (10 November 2004):– child – custody – custody order – variation of – custodian parent effectively yielding custody to a relation – non-custodian parent seeking custody order in his favour – what must be shown
divorce-
Gonye v Gonye (68/06) [2009] ZWSC 13 (2 April 2009) :– division of property following divorce – order for division, apportionment or distribution of assets of the spouses – what assets may be the subject of an order – all assets owned at time of divorce may be considered – assets acquired before marriage or during period of separation not excluded – company run by one spouse – when assets and proceeds of company may be treated as spouse’s
Dzvova v Dzvova (HC 753/08) [2008] ZWHHC 87; HH 39-2008 (7 May 2008) :– husband and wife – divorce – division of property following divorce – principles to be applied – “clean break” principle – not part of our law
G v G (HC 21/07) [2008] ZWHHC 31 (2 April 2008):– husband and wife – divorce – irretrievable breakdown of marriage – when can be said to have occurred – one party having expressed intention to end marriage and not having changed his mind – need for other party to show that there are prospects of reconciliation
Masiwa v Masiwa (66/01) [2006] ZWSC 46; SC46/06 (11 October 2006) :– husband and wife – divorce – division of matrimonial assets – normal practice is to claim a percentage – undesirability of awarding specific sum, particularly in an inflationary environment – sole use of matrimonial home by one party after separation – effect to be given to – length of time during which contributions were made – effect of
Feremba v Matika (Civil (A)) [2007] ZWHHC 33; HH 33-2007 (29 May 2007):– husband and wife – divorce – distribution of assets – unregistered customary law marriage – approach to be followed in magistrates courts
Dube (Nee Msimanga) v Mavako-Dube (HC 317/06) [2006] ZWBHC 78; HB 78/06 (3 August 2006):– contribution towards – divorce action – when contribution may be ordered
Kumirai v Memory Kumirai (Nee Bungu) (HC11135/2004) [2006] ZWHHC 17; HH 17-2006 (9 February 2006):– divorce – grounds for – one party not desiring divorce – relevance of – need to show that parties reconciled – judicial separation – may no longer be granted
matrimonial estate
Matsinde v Nyamukapa (HC 4352/05) [2006] ZWHHC 102; HH 102-2006 (4 October 2006):– matrimonial estate – claim for share in – such claim not transmissible to estate of spouse
property rights
Tobaiwa v Kaseke & Others (HC 1319/03) [2006] ZWHHC 74; HH 74-2006 (5 July 2006):– husband and wife – property rights – immoveable property acquired during marriage and registered in name of one spouse only – rights of other spouse in respect of property
Muswore v Makanza HH-16-05 (Makarau J):– property rights – matrimonial property – house forming part of matrimonial estate but registered in sole name of husband – husband’s right to sell such property even without wife’s consent– property rights – matrimonial property – house forming part of matrimonial estate but registered in sole name of husband – husband’s right to sell such property even without wife’s consent
unregistered Customary Marriage
Feremba v Matika (Civil (A)) [2007] ZWHHC 33; HH 33-2007 (29 May 2007):– husband and wife – divorce – distribution of assets – unregistered customary law marriage – approach to be followed in magistrates courts
Tawonanhasi v Tshuma & Ors HB-63-08 (Kamocha J) (Judgment delivered 26 June 2008):– custody – to whom should be granted – child born of unregistered customary union – natural parent available and willing to take custody – custody should be granted to such parent in absence of compelling reasons not to
Chivise v Dimbwi (Civ. Appeal 116/02) [2004] ZWHHC 4; HH 4-2004 (7 January 2004):– husband and wife – divorce – distribution of property following divorce – customary law marriage – need for legislative intervention to clarify requirements
Fees (See 'Costs')
Human Rights
Masunda v Minister of State for National Security, Lands, Land Reform and Resettlement and Another (HC 1391/06) [2006] ZWBHC 75; HB 75/06 (20 July 2006):protection of the law – Minister using police to act contrary to court order at instigation of senior colleague – abuse of office
Insolvency
Madondo NO v Zimbabwe Banking Corporation (HC 11410/2004) [2008] ZWHHC 5 (30 January 2008) – undue preference – disposition made in ordinary course of business – what is – bank belatedly insisting on security for overdraft and then securing only a fraction of amount lent – bank not entitled to liquidate security
Sole v Kazi (HC 6559/05) [2006] ZWHHC 101; HH 101-2006 (13 September 2006):– sequestration – application – need to show that respondent was a debtor and had committed an act of insolvency – director of company – not per se responsible for debts of company
Moyo v Fraser and Others (362/99) [2006] ZWSC 5; SC5/06 (9 March 2006):— sequestration — rights of creditors — purchaser of land — transfer not effected before sequestration — no right to claim transfer of land
N.M.B. Bank Limited v Selemani (HC 9336/04) [2004] ZWHHC 176; HH 176-2004 (10 November 2004):(1)– act of insolvency – what constitutes – nulla bona return – writ of execution against movable property only – respondent failing to point out other disposable assets which could satisfy debt – act of insolvency committed
(2)– sequestration – provisional order for sequestration – confirmation of – court’s discretion – circumstances justifying court in not confirming provisional order – respondent paying off capital debt and indicating steps being taken to satisfy costs
Intellectual Property Law
copyright
Gramma Records (Private) Limited and Another v Chimusoro (HC 6678/05) [2007] ZWHHC 22; HH 22-2007; 2008 BIP 296 (ZH) (1 February 2007) :– copyright – ownership of – recording commissioned by artiste – when ownership vests in artiste – lien over recording – whether person making recording entitled to retain it until price paid in full
S v Chiadzwa (CA 160/03) [2004] ZWHHC 28; HH 28-2004 (25 February 2004):– statutory offences – Copyright Act [Chapter 26:10] – s 27(1)(e) – by way of trade exhibiting in public an infringing copy of work in which copyright exists – artistic works – when copyright exists – no protection of ideas alone –knowledge by accused that item exhibited is infringing copy of work in which copyright exists – what must be shown
S v Chiadzwa (CA 160/03) [2004] ZWHHC 28; HH 28-2004 (25 February 2004):– copyright – meaning of – limits to what is protected – artistic works – what is protected – creativity in choice and arrangement of ideas etc – ideas themselves not protected
trade mark
First Mutual Life Assurance Society Of Zimbabwe v Intermarkent Holdings Limited & Others (HC 4005/2002) [2006] ZWHHC 8; HH 8-2006 (17 January 2006):– trade mark – registered trade mark – infringement – similarity likely to lead to confusion – test – normal, average person – use of designs – unacceptable monopoly should not be created
Unilever P.L.C. and Another v Vimco (Pvt) Ltd and Another (HC 6627/03) [2004] ZWHHC 175; HH 175-2004 (3 November 2004):– trade mark – infringement of – unauthorised use of a mark so nearly resembling a registered trade mark as to be likely to deceive or cause confusion – use of similar name in prominent place on label of similar product
International Law
International Committee of the Red Cross v Sibanda and Another (47/02) [2004] ZWSC 115; SC48/03 (13 January 2004): International law B sovereign immunity B international organization granted immunity under Privileges and Immunities Act [Chapter 3:02] B extent of immunity from suit – commercial contract entered into by such organization B such an act jure gestionis restricting immunity
International Instruments-
Mann v
Treaties-
Etheredge v Minister of State for National Security Responsible for Lands, Land Reform and Resettlement and Another (НС 3295/08) [2009] ZWHHC 1 (4 February 2009) :- – SADC Treaty – protocol establishing SADC Tribunal – effect – whether Tribunal superior to courts in contracting states
Interpretation of Statutes
Sagitarian (Pvt) Ltd. t/a ABC Auctions v Workers' Committee of Sagitarian (Pvt) Ltd. (25/05) [2006] ZWSC 72; SC83/05 (6 February 2006):– interpretation of a subsection – subsection apparently of general application – must be interpreted in the context of the section of which it is a part
S v Mzanywa, S v Chibharo and Others; S v Mnyambo; S v Mashawina (HC 972/05, 275/05, 1186/05) [2006] ZWBHC 9; HB 9/06 (23 February 2006):– retrospectivity – when may be construed – criminal statute increasing penalties – used of word “convicted”
Mukwereza v Minister of Home Affairs and Another ( S-27-04) [2004] ZWSC 27; SC27/04 (13 May 2004):– intention of legislature – how to be ascertained – speculative opinion as to what legislature probably would have meant – factors to consider in arriving at such opinion
eiusdem generis rule-
Murawo v Grain Marketing Board (60/07) [2009] ZWSC 17 (11 May 2009):– applicability – a mere presumption – applicability to employment codes of conduct
validity
Movement
for Democratic Change v President of the
words-
Murowa
Diamonds (Private) Limited v
Legal Practitioner
attorney General-
BGM Traffic Control Systems v Minister for Transport and Others (HC 3659/08) [2009] ZWHHC 19; HH 12-2009 (12 February 2009):-need to comply with rules of court on same basis as any other legal firm – no basis on which court can accept excuses from Attorney-General which it would not accept from other legal firm
S v Masuku HB-114-04 (Ndou J):– Attorney-General – concession by – Attorney-General’s representative conceding that leave to appeal should be granted – whether such concession may be withdrawn – procedure to follow if Attorney-General seeks to withdraw concession
counsel
Choto v C.B.Z. and Another (HC 12640/04) [2006] ZWHHC 126; HH 126-2006 (8 November 2006):counsel – entitlement of legal practitioner to practice as an advocate – fees chargeable by advocate – advocate not bound by tariff of legal practitioner’s fees – counsel – entitlement of legal practitioner to practice as an advocate – fees chargeable by advocate – advocate not bound by tariff of legal practitioner’s fees
conduct and ethics-
BGM Traffic Control Systems v Minister for Transport and Others (HC 3659/08) [2009] ZWHHC 19; HH 12-2009 (12 February 2009): – statements from the bar – undesirability of – need for legal practitioners to give evidence in affidavit form
Khuzwayo v Assistant Master of the High Court and Others (HC 1422/06) [2007] ZWBHC 8; HB 8/07 (18 January 2007):– conduct and ethics – legal practitioner filing notice of opposition to application without taking instructions from client – impropriety of – legal practitioner’s role in relation to client and court
Global Electrical Mfrs (Pvt) Ltd v Nexbak Invstms (Pvt) Ltd & Ors S-76-06 (Garwe JA, Malaba & Gwaunza JJA concurring) (Judgment delivered 3 April 2007):– conduct and ethics – use of intemperate language – need to use appropriate language to attack decision of judge a quo
Dobrock Holdings (Pvt) Ltd v Turner and Sons (Pvt) Ltd and Others, Turner and Sons (Pvt) Ltd v Zambezi Paddle Steamer (Pvt) Ltd and Another (HC 5186/05,HC 5264/05 ) [2006] ZWHHC 128; HH 128-2006 (6 December 2006):– conduct and ethics – conflict of interest – counsel for one party having previously been arbitrator in matter between parties – no information acquired which could be used to prejudice of other party – proper for counsel to act
Kawondera v Mandebvu (21/05) [2006] ZWSC 12; SC12/06 (6 February 2006):– conduct and ethics – authorities against one’s client – obligation to disclose such authorities to court – diligence expected of legal practitioner – includes checking of authorities cited by opposing counsel – authorities should not be accepted at their face value
Longhurst N.O. v Lee and Others (HC498/06) [2006] ZWBHC 29; HB 29/06 (23 March 2006) :— conduct and ethics — conflict of interests — client of legal practitioner involved in litigation against former client of the same legal practitioner — whether ethical for legal practitioner to act
S v Williams & Ors HB-160-04 (Cheda J):– conduct and ethics – duty to attend court when seized with matter in court – when may absent himself
Public prosecutor
Deven Engineering (Pvt) Ltd v Chiyangwa and Others (HC 40/07) [2007] ZWHHC 1; HH 1-2007 (24 January 2007) :– conduct and ethics – public prosecutor – interfering in civil dispute – irregular and unbecoming conduct
S v Thebe (HC85/06) [2006] ZWBHC 16; HB 16/06 (7 March 2006):– prosecutor – dominus litis – limits to – court’s power to ensure suitable charges are preferred
Local Government
Council (lors)
Chideya v Makwavarara and Others (HC 5604/06) [2007] ZWHHC 13; HH 13-2007 (2 March 2007):– councillors – suspension of councillors by Minister of Local Government – appointment by Minister of commissioners to run affairs of city – limited nature of such appointment – re-appointment of councillors unlawful –legislation not meant to allow Minister of avoid having a general election of councillors
Stringer v Chairperson Zimbabwe Electoral Commission and Others (HC 6350/06) [2007] ZWHHC 41; HH 41-2007 (13 June 2007) :– election – elections of mayor and councillors – when such elections must be held – by-election – distinction from general election – postponement of elections – grounds for – ward and city boundaries not delineated
Urban Council-
Bruce v Econet (Pvt) Ltd and Another (HC 117/ 2008) [2009] ZWHHC 47; HH 52-2009 (6 May 2009) : – alienation of council land – subsequent use of land by person to whom alienated – subject to requirements of Regional, Town and Country Planning Act [Chapter 29:12]
City of Harare v Zvobgo (309/05) [2009] ZWSC 12 (2 April 2009): – senior employee – dismissal of – dismissal must be approved by Local Government Board – decision to dismiss not a decision of the Board – not necessary to cite Board in proceedings arising out of dismissal
City
of
City of
City
of
Partnership
Stanmarker Mining (Private) Limited v Metallon Corporation Limited (HC 3074/04) [2006] ZWHHC 36; HH 36-2006 (22 March 2006):– formation – essentials for an agreement to create a partnership – extent of contribution by particular party required – element of “gain” – not restricted to commercial profits – includes acquisition – whether contrary intention revealed by contract – need to consider contract as a whole – nature of partnership agreement – one of good faith – when party liable to former partner after termination of partnership
Police
Coltart v Min of Home Affairs & Ors HH-67-06 (Bere J) (Judgment delivered 29 June 2006):– action against – police officer acting in obedience to warrant – defective warrant – when police officer protected against suit
Practice and Procedure
JDM Agro – Consult & Marketing (Pvt) Ltd v Editor of the Herald Newspaper and Another (HC 513/06 ) [2007] ZWHHC 76 (8 August 2007) :– parties – citation of – need to cite natural or legal persons – failure to do so – summons a nullity and incapable of amendment
Stringer
v Chairperson
Tregers
Industries (Private) Limited v Commissioner General of the
Kadengu and Others v Kadengu and Others (HC 3122/03) [2006] ZWHHC 113; HH 113-2006 (1 November 2006):– parties – locus standi – heirs under a will – residual heirs – no locus standi to seek alteration of will until vesting of rights in them
Zimbabwe Stock Exchange v Zimbabwe Revenue Authority (HC 3488/06) [2006] ZWHHC 120; HH 120-2006 (8 November 2006):– parties – locus standi – principles – need to have legal interest in subject-matter of action – Zimbabwe Stock Exchange – bringing action on behalf of stockbrokers – Stock Exchange having no legal interest at stake – stockbrokers not members of Stock Exchange – Stock Exchange having no locus standi
Capital
absolution from the instance-
Dube v Dube (Nee Ndebele) (HC 2203/03) [2008] ZWBHC 40; HB 39-08 (22 May 2008) :– absolution from the instance – when may be granted – principles – application made in respect of ancillary matter – not permissible to grant piece-meal applications
appearance to defend-
Tarumbwa v Tarumbwa (Nee Musuka) (HC 6592/06) [2007] ZWHHC 19; HH 19-2007 (4 April 2007):– appearance to defend – matrimonial case – defendant not entering appearance to defend – should be given opportunity to purge his default and plead
application(s)-
affidavits
Associated Newspapers Of Zimbabwe v Media Information Commission (HC 3744/05) [2006] ZWHHC 15; HH 15-2006 (8 February 2006): – affidavits – filing – party seeking to file further affidavit after answering affidavit filed – leave required – when leave may be granted
Zimbabwe Open University v Mazombwe (HC 1012/08) [2009] ZWHHC 15; HH 43-2009 (4 February 2009) :– use of one form for application when other would have been appropriate – not fatal – use of format not in compliance with either form – application fatally defective – rules of court – departure from – when may be condoned
Mashonaland Turf Club v Nyamangunda (HC 253/08) [2009] ZWHHC 31; HH 21-2009 (4 March 2009):– parties – voluntary association – club – capacity to institute legal proceedings – rules of club not followed – proceedings void
Rogers v Rogers and Another (Civil Appeal No. 333/06 ) [2008] ZWSC 7 (27 May 2008):– application – dismissal of – summary dismissal – when order for summary dismissal may be granted – action “frivolous” – when action may be regarded as frivolous
Grain Marketing Board v Muchero (224/06) [2008] ZWSC 36 (11 March 2008): – bar – upliftment of – application – desirability of application being made in writing – court’s duty when application made – not entitled to decide matter on merits without dealing with application for upliftment
Mungofa v Sande and Another (HC 1972/06) [2008] ZWHHC 3 (23 January 2008):– parties – joinder of – claim in reconvention by defendant in main action – not permissible to join another party as co-defendant in the claim in reconvention
Bindura Nickel Corporation Ltd v Zimbabwe Revenue Authority (HC 1033/06 ) [2008] ZWHHC 47 (20 February 2008):– parties – locus standi – company – holding company – action in respect of wholly owned subsidiaries – holding company having locus standi
Zimbabwe Stock Exchange v Zimbabwe Revenue Authority (315/06) [2008] ZWSC 35 (4 March 2008):– parties – locus standi – principles – need to have legal interest in subject-matter of action – Zimbabwe Stock Exchange – bringing action on behalf of stockbrokers – Stock Exchange having no legal interest at stake – Stock Exchange having no locus standi
Nument Security (Pvt) Ltd v Mutoti and Others (12/05) [2007] ZWSC 32; SC32/07 (5 November 2007) :– interdict – grant of – requirements – need for clear right to be established – material disputes of fact – clear right not established – interdict should not be granted
Chihwayi Enterprises (Pvt) Ltd. t/a Paint & Tools Hardware v Atish Investments (Pvt) Ltd. (191/06) [2007] ZWSC 23; SC23/07 (7 September 2007):– judgment – default judgment – rescission – judgment obtained improperly or fraudulently – not a judgment granted under the rules of court – no need to seek condonation for delay in applying for rescission
Gifford v Muzire and Others (HC 4954/07) [2007] ZWHHC 69; HH 69-2007 (18 September 2007):– application – urgent – application for spoliation order – generally should be dealt with on urgent basis
Rateyiwa v Kambuzuma Housing Cooperative and Another (HC 5378/06) [2007] ZWHHC 52; HH 52-2007 (23 May 2007):– application – grounds for – domestic remedies available under relevant legislation – when court will withhold jurisdiction – legislation providing adequate procedures to resolve dispute
Bulawayo Dialogue Institute v Chief Superintendent Matyatya Officer Commanding Police Bulawayo Central District and Others (HC 1260/2003) [2003] ZWBHC 87; HB87/03 (7 August 2003):Practice and procedure B application B urgent application B application made either ex parte or at very short notice B necessity for applicant to act with the utmost good faith and lay all relevant facts before the court
Ex-Combatants Security Co v Midlands State University (HC 11672/04) [2006] ZWHHC 80; HH 80-2006 (28 June 2006):– application – use of application procedure – when may be used – not appropriate where will lead to an injustice – claim based on oral agreement whose terms are disputed – claim for damages arising from breach of contract – matters on which evidence must be led and credibility of witnesses assessed
Tawanda v Ndebele (HC1826/05) [2006] ZWBHC 27; HB 27/06 (6 April 2006):– documents – power of attorney – authentication of – requirements for power of attorney to be signed by notary public – person admitted as solicitor in England not necessarily a notary public
Coltart v Min of Home Affairs & Ors HH-67-06 (Bere J) (Judgment delivered 29 June 2006):– summons – amendment – application to increase amount of damages being claimed – long delay since summons issued, through no fault of plaintiff – original claim now unrealistically low due to hyper-inflation – application granted
heads of argument
Sithole v Khumalo and Others (HC 460/06) [2006] ZWBHC 138; HB 138/06 (23 November 2006):– application – heads of argument – delivery of to other party – must be done “immediately” after filing heads with Registrar – meaning of “immediately” – delivery must be within a reasonable time, according to circumstances of each case
Vera v Imperial Asset Management Company (HC 5425/2005) [2006] ZWHHC 50; HH 50-2006 (26 April 2006):– heads of argument – respondent’s heads of argument – when must be filed
Lee Group of Companies v Elder (06/02) [2004] ZWSC 88; SC88/04 (6 October 2004):– time – reckoning of – heads of argument – time within which heads of argument to be filed – application to Supreme Court – time period does not exclude time when court is on vacation – difference between Supreme Court and High Court practice
Document support Centre (Private) Ltd v Mapuvire (HC 6314/06) [2006] ZWHHC 117; HH 117-2006 (31 October 2006):– application – heads of argument – delivery of to other party – must be done “immediately” after filing heads with Registrar – meaning of “immediately” – delivery must be within a reasonable time, according to circumstances of each case
Triple
C Pigs (Partnership) and Another v Commissioner-General
exception
Tobacco Sales Producers (Pvt) Ltd v Eternity Star Invstms HH-121-06 (Kudya J) (Judgment delivered 15 November 2006):– exception – when may be filed – must be filed before pleading to the merits
Khan v Provincial Magistrate & Others (HC 1422/06) [2006] ZWHHC 39; HH 39-2006 (20 March 2006):– exception – lis alibi pendens – not a complete bar – court’s discretion as to whether to uphold the exception
Execution-
Kanoyangwa v Messenger of Court & Ors S-68-06 (Gwaunza JA, Sandura & Ziyambi JJA concurring) (Judgment delivered 6 March 2007):– execution – sale – setting aside of – sale confirmed but various irregularities attendant on sale – effect – whether equities nonetheless favoured bona fide buyer
Teesdale v Reed and Others (04/06) [2006] ZWSC 22; SC22/06 (29 June 2006):– execution – sale – sale by public auction – sale confirmed by Sheriff – Sheriff subsequently realising sale price unreasonably low – when Sheriff entitled to set aside sale and resort to sale by private treaty
Interdict-
Etheredge v Minister of State for National Security Responsible for Lands, Land Reform and Resettlement and Another (НС 3295/08) [2009] ZWHHC 1 (4 February 2009):– right to – applicant only entitled to interdict to protect legally enforceable right
Judgment-
Avacalos v Riley (HC 2022/06 ) [2007] ZWHHC 85 (31 October 2007) :– judgment – judgment by consent – claim expressed in foreign currency, alternatively in local currency at market rate – not permissible to grant judgment at “market” rate – official rate only allowed – date on which official rate to be determined
Kwindima v Mvunduma HH-25-09 (Makarau JP) (Judgment delivered 4 March 2009):- – currency in which judgment may be expressed – judgment may be expressed in currency which will redress loss suffered - local currency rendered worthless due to inflation – appropriate to give judgment in foreign currency (see also Stanmarker Mining (Private) Limited v Metallon Corporation Limited (HC 3074/04) [2006] ZWHHC 36; HH 36-2006 (22 March 2006))
Chahwanda v Dube and Another (HC 434/05) [2007] ZWBHC 6; HB 6/07 (11 January 2007):– judgment – default judgment – not a decision on the merits – decision can be revisited – effect of execution – mere fact of execution does not render court functus officio
Bubye Minerals (Pvt) Ltd & Anor v Rani International Ltd S-60-06 (Cheda JA, Sandura & Ziyambi JJA concurring) (Judgment delivered 18 January 2007):– judgment – summary judgment – founding affidavit – must be based on personal knowledge not on hearsay
Zvinavashe v Ndlovu (90/06) [2006] ZWSC 40; SC40/06 (7 December 2006):judgment – default judgment – application for rescission of earlier default judgment – applicant in default and application dismissed for want of prosecution – judge going into merits of case – decision still a default judgment and not appealable – further application for rescission still possible
Vehicle Delivery Services (Zimbabwe) (Private) Limited v Galaun Holdings Limited (HC 8191/2002) [2003] ZWHHC 171; HH 171-2003 (8 October 2003):judgment - foreign judgment - enforcement of - Zimbabwean defendant entering appearance to defend in foreign court - must be taken to have consented to jurisdiction of that court -not then necessary that summons be served in Zimbabwe in terms of Civil Matters (Mutual Assistance) Act [Chapter 8:02] - judgment enforceable in Zimbabwe under Act
order
Movement
for Democratic Change v President of the
pretrial conference
Moyo v Moyo HB-112-04 (Ndou J):– pre-trial conference – purpose of – agreement made at conference – effect of – matrimonial matter – party disputing agreement allegedly reached at pre-trial conference – matter referred to trial
pleadings
Stanbic Bank Zimbabwe Limited v Durand (HC 9116/03) [2007] ZWHHC 54; HH 54-2007 (20 June 2007):– pleadings – declaration – claim based on fraudulent or negligent misrepresentations – what declaration must aver – need to aver that misrepresentation induced plaintiff to act to his detriment
Nyaguse v Skinners Auto Body Specialists and Another (HC 2969/06) [2007] ZWHHC 32; HH 32-2007 (22 May 2007):– pleadings – declaration – delictual action – need to aver fault as well as wrongfulness on part of defendant
record
Bubye Minerals (Pvt) Ltd v Minister of Mines and Mining Deveolpment and Others (HC 278/06) [2007] ZWHHC 31; HH 31-2007 (9 May 2007):– record – application – chambers application – record of proceedings – what record must consist of – no requirement that extensive recording be made of everything that happens before the judge
Malimanjani v Central Africa Building Society (CABS) (19/05/01) [2007] ZWSC 102; SC 47/07 (3 September 2007):– record – review proceedings – need to obtain record – effect of failure to do so – courses open to court
res judicata
Flowerdale Investments and Another (Pty) Ltd v Bernad Construction (Pty) Ltd and Others (199/07) [2009] ZWSC 8 (18 February 2009): – tests for when a matter is res judicata – matter previously left open – cannot be said to be res judicata when raised again later
Tabacco Sales Producers (Private) Limited v Eternity Star Investments (HC 749/2006) [2006] ZWHHC 121; HH 121-2006 (15 November 2006):– res judicata – principles – previous judgment concerning same parties and subject matter – parties not appealing against that judgment – judgment binding unless set aside – not permissible for party to undermine court order by bringing fresh action
Kawondera v Mandebvu (21/05) [2006] ZWSC 12; SC12/06 (6 February 2006):– res judicata – requirements for plea – person not a party to original action – when bound by earlier decision – person allowing matter to be fought by party professing to act in his interests
review
Shoko and Others v Minister of Local Government Public Works & Urban Development (HC 1263/06) [2007] ZWHHC 12; HH 12-2007 (28 February 2007):– review – application – application filed late – no application for condonation made – respondent not making issue of matter – not open to court to extend period mero motu
stare decisis
Chideya v Makwavarara and Others (HC 5604/06) [2007] ZWHHC 13; HH 13-2007 (2 March 2007):– stare decisis – obiter dicta – when a statement may be said to be obiter – effect of obiter statements
stay of proceedings
Ismael v Registrar General and Another (HC 7758/06) [2007] ZWHHC 25; HH 25-2007 (25 April 2007):– stay of proceedings – court’s inherent jurisdiction to stay proceedings – stay of proceedings in order to allow an administrative function or decision to be completed
service
Mandaza t/a Induna Development Projects v Mzilikazi Investments (Pvt) Ltd (132/06) [2007] ZWBHC 23; HB 23/07 (8 February 2007):– process – service – must be served after filing with Registrar – service before filing with Registrar – not proper service
Marimo v Mpofu HB-99-04 (Cheda J):– process – service of – summons – service at place of employment – service at branch other than that at which defendant employed – service defective – need for place to be that where defendant is normally physically present
trial
Mazibuko v Commissioner of Police and Another (HC 1565/03) [2006] ZWBHC 94; HB 94/06 (5 October 2006):– trial – postponement – application – when may be granted – when appropriate order as to costs will suffice to grant postponement
Prescription
Interruption
Chiwawa v Mutzuris and Others (HC 7429/06) [2009] ZWHHC 11; HH 7-2009 (4 February 2009) :– by issue of process – need for process to be prosecuted to final judgment – court application being dismissed on procedural grounds – such application not interrupting prescription
Professions and Trades
Estate Agent
Phigidemac Consultants (Pvt) Ltd v Zvimba Rural District Council (HC 4975/02) [2004] ZWHHC 184; HH 184-2004 (24 November 2004):– estate agent – practising as such without being registered – company which had no officer or assistant as a registered estate agent – company engaging a quantity surveyor to carry out valuation – company and quantity surveyor practising an estate agent
Quantity Survivor
Phigidemac Consultants (Pvt) Ltd v Zvimba Rural District Council (HC 4975/02) [2004] ZWHHC 184; HH 184-2004 (24 November 2004):– quantity surveyor – work of – valuing property – valuing buildings for purposes of sale – not part of work of a quantity surveyor
Stockbroker
Gumbo and Another v Zimbabwe Srtock Exchange (HC 10453/02) [2004] ZWHHC 150; HH 150-2004 (28 July 2004):– stockbroker – discipline – Committee of Stock Exchange – suspension of stockbroker and referral to Registrar for cancellation – need for Committee to properly examine case against alleged offender and make decision to refer matter – such decision reviewable
Property and real rights
land
Pondoro (Pvt) Ltd and Another v Nemakonde and Another (HC 191/08) [2008] ZWHHC 84; HH 18-2008 (20 January 2008): – acquisition – eviction of former owner – who may seek eviction – beneficiary under land reform programme not entitled to seek eviction order
Masunda v Minister of State for National Security, Lands, Land Reform and Resettlement and Another (HC 1391/06) [2006] ZWBHC 75; HB 75/06 (20 July 2006):– acquisition – allocation of land appropriated from original owner for resettlement – offer by responsible Minister – once accepted, may not be withdrawn unilaterally by Minister
Pondoro (Private) Limited & Another v Ministry of State Security in the President's Office Responsible for Lands, Land Reform and Resettlement & Another (HC 6031/05) [2006] ZWHHC 33; HH 33-2006 (15 March 2006):– acquisition – agricultural land compulsorily acquired under s 8(1) of Land Acquisition Act [Chapter 20:10] – former owner continuing to occupy farm – 17th amendment to Constitution – effect – valid acquisition orders previously issued not affected
Moyo v Fraser and Others (362/99) [2006] ZWSC 5; SC5/06 (9 March 2006):– ownership – land sold by instalments – instalment agreement not registered – rights of buyer – seller’s estate being sequestrated before full payment made –buyer having no right to transfer of land
Airfield Investments (Pvt) Ltd. v Minister of Lands Agriculture and Rural Resettlement and Others (64/03) [2004] ZWSC 36; SC36/04 (3 June 2004)
Bon Espoir (Pvt) Ltd. v Chabata and Others (77/03) [2003] ZWSC 45; SC45/03 (12 December 2003): - acquisition - notice of - requirement to publish preliminary notice in Gazette on same date as publication in newspaper - effect of failure to publish notice in Gazette - acquisition invalid - Land Acquisition Act [Chapter 20:10] - s 5(1)(a)
Land - acquisition -land subject to Hippo Valley Agreement Act [Chapter 20:08]- such land not subject to acquisition in terms of Land Acquisition Act [Chapter 20:10]
landlord and tenant
Kudinga v Dhliwayo and Another (HC 1392/08) [2008] ZWHHC 22 (12 March 2008):– lessee – ejectment – certificate of ejectment issued by rent board – status of such certificate – not an order for ejectment – need to obtain certificate before getting order from court for ejectment
Kingstons Ltd. v L D Ineson (Pvt) Ltd. (05/05) [2006] ZWSC 8; SC8/06 (15 May 2006):— tenant — eviction of — Commercial Premises (Rent) Regulations 1983 — s 22(2) — lessor to have “good and sufficient” grounds for seeking recovery of commercial premises — what evidence is required of landlord to establish claim and of tenant refute claim
property
Bakari v Venos (HC 3367A/02) [2009] ZWHHC 5; HH 1-2009 (14 January 2009):– division of – following dissolution of partnership – actio communi dividendo – principles – court’s discretion – need for plaintiff to plead ancillary claims relating to adjustment of claim – assessment of value of claims – adjustment of claims to counter effects of inflation – such adjustment contrary to principle of nominalism
servitude
Masedza
v Gospel of
spoliation order
Asher v Minister, National Security responsible for Land, land Reform and Resettlement and Another (HC 612/09) [2009] ZWHHC 28; HH 34-2009 (26 February 2009):– locus standi – unlawful occupier of land – person occupying land which had been acquired by State – person receiving offer letter from State in respect of such land – not entitled to deprive occupier of possession – need for occupier to be lawfully evicted before holder of offer letter entitled to occupy property
Dodhill (Pvt) Ltd and Another v Minister, Lands and Rural Resettlement and Another (HC 1028/09) [2009] ZWHHC 34; HH 40-2009 (16 March 2009) :-– locus standi – unlawful occupier of land – person claiming right to land not entitled to evict occupier without legal process
Etheredge v Minister of State for National Security Responsible for Lands, Land Reform and Resettlement and Another (НС 3295/08) [2009] ZWHHC 1 (4 February 2009):– right to – unlawful occupier of land – person occupying land which had been acquired by State – still entitled to protection against spoliation
Gute v Jumbe (HC 4456/08) [2009] ZWHHC 35; HH 31-2009 (18 March 2009):– when may be granted – property leased to respondent and not returned – spoliation order not appropriate
Diocese of Harare v Church of the Province of Central Africa and Another (Civil Application No. 17/08 ) [2008] ZWSC 4 (13 February 2008):– spoliation order – requirements for – need for applicant to show he was in exclusive possession of property – member of a church – cannot possess church premises to exclusion of other church organs or members – spoliation of incorporeal right – meaning – bishop being invited by faithful to minister to them – not an unlawful dispossession of any rights held by ordained bishop – locus standi to bring application for spoliation – applicant must show he has locus standi
Gifford v Muzire and Others (HC 4954/07) [2007] ZWHHC 69; HH 69-2007 (18 September 2007):– spoliation order – requirements for – peaceful and undisturbed possession – possession tainted with illegality – not peaceful and undisturbed possession
Karori (Private) Limited and Another v Mujaji (HC 824/07) [2007] ZWHHC 23; HH 23-2007 (23 February 2007):– spoliation order – when may be granted – relevance of lawfulness of applicant’s possession of the property in question
Regulations
Trust Insurance Broker (Pvt) Ltd v Minister of Finance and Another (HC 1712/05) [2007] ZWBHC 13; HB 13/07 (1 February 2007):– validity – Minister’s powers to make regulations – Act specifying particular subjects in respect of which regulations may be made – Act also giving Minister power to make regulations concerning anything which he considers necessary or convenient to prescribe – wide discretion thereby given to Minister
Sale
Statutes
Bulawayo Dialogue Institute v Chief Superintendent Matyatya Officer Commanding Police Bulawayo Central District and Others (HC 1260/2003) [2003] ZWBHC 87; HB87/03 (7 August 2003):- Public Order and Security Act [Chapter 11:17] -ss 24, 25 & 26 -power of police to control or prohibit public gatherings
Succession ( See also WILL)
Chinho v Chinho and Others (HC 572/05) [2006] ZWHHC 99; HH 99-2006 (20 September 2006):– spouse – who is – spouse under customary law – deceased marrying a second wife under civil law while first marriage subsisted – both wives regarded as spouses for purposes of succession
Trust
Gold
Mining and Minerals Development Trust v
Taxation
Bindura Nickel Corporation Ltd v Zimbabwe Revenue Authority (HC 1033/06 ) [2008] ZWHHC 47 (20 February 2008):- Revenue and public finance – interest – interest owed by taxpayer for unpaid or overdue taxes – accrual of interest – when accrual ceases – not limited by in duplum rule (duplum rule see BANKING)
Zimbabwe Banking Corporation Limited v Trust Finance Limited and Another (HC 4961/05) [2006] ZWHHC 130; HH 130-2006 (20 December 2006):– review – of taxation – separately provided for – procedures and time limits applicable different from those for general reviews – High Court Rules 1971 – rr 257 & 314
Ndaza
v
duty and value added tax
Murowa Diamonds (Private) Limited v Zimbabwe Revenue Authority (HC 4771/07 ) [2007] ZWHHC 96 (12 November 2007):– duty and value-added tax – payment of in foreign currency when certain goods imported – goods paid for with funds “obtained” from authorised dealer – resident of Zimbabwe exempt from paying duty in foreign currency
Benchman Investments (Pvt) Ltd v Comr, Zimbabwe Revenue Authority (HC 8799/02) [2004] ZWHHC 90; HH 90-2004 (7 April 2004):– customs duty – value of imported goods – assessment of – selling rate for foreign currency – fixing of – power to fix rate given only to Commissioner-General of the Zimbabwe Revenue Authority – not competent for Minister of Finance to fix selling rate
income tax
Standard
Chartered Bank Zimbabwe Limited v
Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority (23/04) [2006] ZWSC 31; SC31/06 (25 September 2006):– income tax – taxable income – grant of share option to senior employees as part of an incentive scheme – such an advantage or benefit in respect of employment – value of shares at date option exercised
Barclays Bank of Zimbabwe Limited v Zimbabwe Revenue Authority (HC 3628/02) [2004] ZWHHC 162; HH 162-2004 (22 September 2004): – income tax – withholding tax on fees due to a non-resident – when fees are deemed to have been paid – fulfilment of conditions on which non-resident entitled to fees – meaning – not a reference to grant of exchange control authority for payment
see also 1)Medix Pharmacies (Private) Limited and Others v Commissioner-General of The Zimbabwe Revenue Authority and Another, Ernst and Young Chartered Accountants v Commissioner-General of The Zimbabwe Revenue Authority and Another (HC 2384/03, HC 2383/03) [2003] ZWHHC 102; HH 102-2003 (9 July 2003)
2) Air Zimbabwe Corporation and Others v Zimbabwe Revenue Authority (HC 6911/02) [2003] ZWHHC 96; HH 96-2003 (9 July 2003)
Town and Country Planning
Appeal
Bruce v Econet (Pvt) Ltd and Another (HC 117/ 2008) [2009] ZWHHC 47; HH 52-2009 (6 May 2009) :– to Administrative Court – what decisions are subject to appeal to Administrative Court – decision by council to alienate council land – not such a decision
Development
Bruce v Econet (Pvt) Ltd and Another (HC 117/ 2008) [2009] ZWHHC 47; HH 52-2009 (6 May 2009) :– what constitutes – building on land or changing use of land – permit required under Regional, Town and Country Planning Act [Chapter 29:12]
Subdivision of Property
Tsamwa v Hondo (HC 6551/05 ) [2008] ZWHHC 57 (25 June 2008) :– prohibition on agreement for change of ownership of portion of property without permit allowing for subdivision – effect – permit issued after agreement had been concluded – no effect on validity of agreement
Transport
Modzone Enterprises (Private) Limited and Another v Transtech Freight Zimbabwe (Private) Limited t/a UTI (HC 47611/02) [2007] ZWHHC 65; HH 65-2007 (24 September 2007) :Carrier – common carrier – who is – not necessary that party’s main business be carriage of goods – liability of common carrier – not possible for carrier to contract out of liability for wilful misconduct or gross negligence – liability of carrier for acts of agents to whom actual carriage entrusted
Voluntary Associations
Dynamos Football Club (Pvt) Ltd. and Another v Zimbabwe Football Association and Others (60/03) [2006] ZWSC 81; SC93/05 (23 March 2006) :Partnerships and voluntary associations – clubs – legal basis of – changes to club constitution – may only be made in accordance with procedures laid down in constitution
Will
alteration
Kadengu and Others v Kadengu and Others (HC 3122/03) [2006] ZWHHC 113; HH 113-2006 (1 November 2006):– alteration of – application – residual heirs – no right to apply for alteration until they have expectation of benefit
validity
Mapenzauswa vs Muskwe and others (HC 7727/06 ) [2008] ZWHHC 53 (18 June 2008):-marriage subsequent to execution of will – whether will thereby invalidated – will made in contemplation of marriage – such will valid
interpretation
Zvobgo v Madondo N.O. And Others (HC 1656/06) [2006] ZWHHC 93; HH 93-2006 (9 August 2006):– interpretation – reference to testator’s “lawful issue” as well as children born of his marriage – included children born outside the marriage but recognised by him
Words and Phrases
“animal”
Odenda al v Inn On The Ruparara (HC 2371/03) [2006] ZWHHC 13 (3 January 2006):– animal – action de pauperie – requirements for – defences available – normally docile horse reacting to external stimulus – not acting contra naturam
'any'
Association of Trust Schools, The and Others v Minister of Education, Sport And Culture and Another (HC 5883/06) [2007] ZWHHC 16; HH 16-2007 (21 March 2007)
:“any” (“charge any fee or levy”) – Education Act [Chapter25:04] – s 21(1)(a) (before 2006 amendment)
“consider”
Gumbo
and Another v
“equine animal”
S v Ndlovu, S v Chitenda (Crim (A) 107/06, Crim (A) 112/06) [2006] ZWHHC 70; HH 70-2006 (12 July 2006):– “equine animal” – does not include a donkey – Stock Theft Act [Chapter 9:18] – s 12
“immediately”
Sithole v Khumalo and Others (HC 460/06) [2006] ZWBHC 138; HB 138/06 (23 November 2006)
“inhuman or degrading treatment”
Woods v Commissioner of Prisons and Another (78/01) [2003] ZWSC 74; SC137/02 (17 November 2003)
“interest”
Mgwaco Farm (Pvt) Limited v A P Richards (Private) Limited and Others (HC 7122/2003) [2003] ZWHHC 188; HH 188-2003 (17 December 2003)
“issue” – “lawful issue”
Zvobgo v Madondo N.O. And Others (HC 1656/06) [2006] ZWHHC 93; HH 93-2006 (9 August 2006)
“hours of work”
Lever Brothers v Bimha and Others (66/03) [2004] ZWSC 85; SC85/04 (30 September 2004):– “hours of work” – Collective Bargaining Agreement: Detergents, Edible Oils and Fats Industry (SI 89 of 1997) – s 6(2)
“negotiate”
TM Supermarkets v TM National Workers’ Committee S-19-04 (Cheda JA, Sandura & Gwaunza JJA concurring):– unfair labour practice – refusal to negotiate wages – “negotiate” – meaning of – a discussion leading to a conclusion – refusal to grant an increase not a refusal to negotiate
“pass in English”
Mnkandla v Mudzviti & Anor HB-92-03 (Ndou J) See elections above
“proceedings”
Tsvangirai v Mugabe and Another (08/05) [2006] ZWSC 73; SC84/05 (14 February 2006):– Declaration of Rights – s 24(1) – application to Supreme Court – application made during the course of “proceedings” in High Court – meaning – when proceedings are pending – requirement to proceed under s 24(2) – procedure to adopt when court not actually sitting – not permissible to apply directly to Supreme Court in terms of s 24(1) unless application under s 24(2) dismissed in bad faith or for improper motives
“similar”
First
Mutual Life Assurance Society Of
“supermarket”
Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation (Pvt) Ltd and Another (Civil Appeal No.134/04) [2007] ZWSC 109; SC83/06 (26 June 2007):
Old Mutual Property Investments v Metro International (Private) Limited & Another (HC 593/2005) [2006] ZWHHC 53; HH 53-2006 (11 May 2006)
'Urgency'
Triple
C Pigs (Partnership) and Another v Commissioner-General