In Salomon v Salomon & Co Ltd [1897] AC 22 (HL) and Dadoo Ltd and others v Krugersdorp Municipal Council 1920 AD 530 at 550 the same principle that a company is a separate entity distinct from its members was enunciated. Case note on the case of S v Ranchi HH 515-17, The Zimbabwe Electronic Law Journal Now a Refereed Journal and the Editors invite you to contribute articles for future volumes. HC 1148/15) [2018] ZWMSVHC 34 (13 June 2018); Smit Investment Holdings SA (Proprietary) Limited & Another v The Sheriff of Zimbabwe & Another (SC 33/18, Civil Appeal No. ORDER 7 SERVICE OF PROCESS, NOTICES, ETC. When process may be served. APPLICATION See PRACTICE AND PROCEDURE (Application). Powers of court. In trying to determine whether the household goods that were attached belong to the claimant some problems arise. Equality before the law and equal protection of the law, Exploitation degredation abuse or trafficking, Harmful practices affecting the rights of women, Torture cruel inhuman or degrading treatment, ILLEGALITY See CONTRACT (Enforceability) and CONTRACT (Illegality), House forming part of matrimonial estate but registered in sole name of husband, Personal right in respect of immovable property, IMPOSSIBILITY See CONTRACT (Impossibility), IMPRISONMENT See CRIMINAL PROCEDURE (SENTENCE) General Principles, INCOME TAX See REVENUE AND PUBLIC FINANCE (Income Tax), INFORMATION TECHNOLOGY See COMPUTERS AND INFORMATION TECHNOLOGY, INSTALMENT SALE See SALE (Immovable property - instalment sale), nature of protection granted by copyright, selling of infringing copies of CDs and DVDs, priority in time of application for registration, similarity likely to lead to trade mark confusion, unauthorised use of a mark so nearly resembling a registered trade mark. She does not even explain when she acquired these goods. Change of Parties by Reason of Death or Bankruptcy . No. Receipts would have assisted. urgent See PRACTICE AND PROCEDURE (Urgent application), withdrawal by applicant after set down (Application), Attachment – to found or confirm jurisdiction, opposed application set down as unopposed, class action may only be brought in High Court, condonation of non-observance of any time limit, late appearance of entry to defend default judgment, not a decision on the merits (Default judgment), matter pending in Labour Relations Tribunal, documents in possession of third party (Discovery), information in possession of third party regarding wrongdoing (Discovery), Dispute of facts (PRACTICE AND PROCEDURE), exceptio non causa debiti, exceptio non numeratae pecuniae and exception errore calculi, Deputy Sheriff’s entitlement to commission. and. With this, the judgment creditor now had the reverse onus to rebut the prima facie proof that the motor vehicle belongs to the first claimant. See s16 of CLLCA Proceedings in the Local Court The local court proceedings are commenced as follows: Commencement of the Proceedings The proceedings are commenced by summons issued by the aggrieved person. In casu the fact that the movable goods were attached at the judgment debtor’s premises raises the presumption that they belong to the judgment debtor. S Chako, for the judgment creditor. interpleader proceedings in the High Court for a ruling on the competing claims. Impossibility. Interpretation in Order 30. A claim should stand or fall on its founding papers. The agreement of sale that is in the first claimant’s favour constitutes prima facie proof that he is the owner of the Mazda 323. INTERPLEADER. contravention of Estate Agents Act [Chapter 27:05] ex turpi causa non oritur actio. PORTRIVER INVESMENTS (PVT) LTD HIGH COURT OF ZIMBABWE. and. It is therefore frivolous to argue that because the registration book is not in the name of the first claimant therefore he is not the owner of the motor vehicle. (HONS) PART 3 (2010) SYLLABUS The Procedure of the High Court and Supreme Courts of Zimbabwe contained in: High Court of Zimbabwe Act, Chapter 7.06 (formerly No. Electoral Supervisory Commission See below, under ELECTIONS (Electoral Supervisory Commission). The onus is on the claimant to prove ownership of the property so claimed. locus standi See PRACTICE AND PROCEDURE (Locus standi), order requiring the performances of acts by person who is not a party to action, Zambia Broadcasting Corporation (Parties), lis pendens See PRACTICE AND PROCEDURE (Lis pendens), res judicata See PRACTICE AND PROCEDURE (Res judicata), special pleas, exceptions and applications to strike out, declaration – delictual action (Pleadings), extent to which parties are bound by pleadings, based on judgment in personam (Res judicata), previous litigation between same parties (Res judicata), Rights of action (PRACTICE AND PROCEDURE), Rules of court – departure from (PRACTICE AND PROCEDURE). rights, is instituting interpleader proceedings in the high court in order to obtain a determination on the competing and adverse claims which are being made in respect of the cane delivered to the mill." C.Malaba, for the applicant. P Chakanyuka, for the claimant. HC 1148/15) [2018] ZWMSVHC 34 (13 June 2018); The Sheriff for Zimbabwe v Twenty Third Century Systems (PVT) LImited & Another (HH 36-18, HC 9545/16) [2018] ZWHHC 36 (25 January 2018); Sheriff of Zimbabwe & Enfield Cables (Pvt) Ltd. & Others (HH 246-17 HC 7813/16 Ref HC 13415/12) [2017] ZWHHC 246 (12 April 2017); The Deputy Sheriff of the High Court v Lameck & 2 Others (HH 269-18, HC 3398/15) [2018] ZWHHC 269 (24 May 2018); Survival Manufacturing Agencies (Pvt) Ltd v Masuwa (HH 628-20, Civil Appeal 10/20) [2020] ZWHHC 628 (08 October 2020); We must forge ahead with meeting the aspirations of Agenda 2063.. ORDER 28. Indeed it appears that interpleader proceedings in the name of the first appellant as claimant and the first respondent as judgment creditor were commenced in the High Court on or about 15 November 2012 and not concluded. agreement be determined by way of interpleader proceedings for the relief of any person desiring so to interplea d. (2) Where in any interpleader proceedings it is proved that the claims in question are matters to which an arbitration agreement, to which the claimants are parties, relates, the court . Misjoinder and Non-joinder of Parties . Indeed it appears that interpleader proceedings in the name of the first appellant as claimant and the first respondent as judgment creditor were commenced in the High Court on or about 15 November 2012 and not concluded. In proceedings of this nature the claimant must set out facts and allegations which constitute proof of ownership. THE SHERIFF OF ZIMBABWE. 3. Who may serve process. macroeconomic situation in Zimbabwe has deteriorated markedly over the last three years, and since 1999 the country has been facing a deep crisis. The first claimant attached the registration book of the Mazda 323 to his opposing affidavit. the second claimant’s claim to the movable gods placed under attachment in execution of judgment HC 3734/11 is hereby dismissed. 210. 64, CA. 9. par delictum rule (departure from) provision contrary to public policy. Interpleader is a kind of procedure whereby a person in possession of property not being his own, and being claimed from such person (possession) by two or more other persons (so called claimants), by which the matter can be brought to court for adjudication over ostensibly valid and enforceable competing claims over the property. In her affidavit which she deposed to soon after the property had been attached on 20 January 2014 the second claimant stated that her connection with the judgment debtor is that she was a director of it. The Appellant was also granted physical custody of the children of the family with liberal access to the Respondent. MARRIAGE See CUSTOMARY LAW (Marriage) and FAMILY LAW (Husband and wife - marriage), In pari delicto mellor est conditio possidentis Logan v Sibiya 2002 (1) 531 (H), MENTAL DISORDERS See CRIMINAL LAW Defences (Insanity) and CRIMINAL PROCEDURE (Verdict - special verdict), Appeal - court martial - appeal against decision of, MISJOINDER See PRACTICE AND PROCEDURE (Joinder), NATIONALITY See CONSTITUTIONAL LAW (Citizenship), OCCUPIER See PROPERTY AND REAL RIGHTS (Occupier), OWNERSHIP See PROPERTY AND REAL RIGHTS (Ownership), PARLIAMENT See CONSTITUTIONAL LAW (Parliament), division of property following dissolution of partnership, essentials not necessarily conclusive to existence of a partnership, need to show that business was being carried out for joint benefit of both partners, breach by one party of duty of good faith (PARTNERSHIP), unfinished partnership business after de facto termination of agreement, Applicability of action other than in trade relationships (PASSING OFF), Requirements to establish claim (PASSING OFF), Use of distinctive word and packaging (PASSING OFF), officer convicted and sentenced in a magistrates court, act in defence of third party property (POLICE), enforce law and protect constitutional right to protection of the law (POLICE), Police officer – discipline See POLICE (Discipline), Absolution from the instance – principles, application made in respect of ancillary matter, court should lean in favour of case continuing, court's jurisdiction to protect itself from abuse, summary dismissal of action (Abuse of process), ancillary issue not specifically before court, supporting affidavit filed in opposition to claim, what is not denied in affidavits must be taken to be admitted, requirement to serve copy of notice on plaintiff or his legal practitioner, affidavit See PRACTICE AND PROCEDURE (Affidavit), against banking institution placed under curatorship, cause of action must be set out in founding affidavit. Ncube W Family Law in Zimbabwe (1 st edn, Legal Resources Foundation, Harare, 1989) F Chikwanha, for the applicant. Mr Kunze also argued that by failing to change ownership of the motor vehicle into his name within two weeks of purchasing it as is required in terms of s 14 of the Vehicle Registration and Licensing Act [Chapter 13:14], the second claimant was in violation of the law and as such it rendered him not to be the owner of the motor vehicle. 7763 but at the same time she did not explain whether or not she also resides at this address. code of conduct provision that decision of designated authority shall be final effect appeal allowed on technical grounds, Discretion exercise of prison authorities discretion to grant remission of sentence discretion must be, Exclusion of the jurisdiction of the courts by finality clauses, Formulation of Master Plan in an urban area, interference by court with administrative actions or decisions, unreasonableness of decision being reviewed, AFFIDAVIT See PRACTICE AND PROCEDURE (Affidavit), Appeal to Labour Relations Tribunal (ZimLII), Application to lodge memorandum of appeal out of time, application for extension of time within which to appeal, Application to strike out Notice of Appeal, Contention that trial court lacked jurisdiction in appeal, Extension of time to file notice of appeal, Failure to file appeal within prescribed time, Failure to join an affected party as Second Respondent, Requirement that a memorandum of appeal be accompanied by a copy of the order appealed against, Rule 83 requiring appellant to institute appeal within 60 days of filing notice of Appeal (TZ), exercise of discretionary power by lower court, limited powers of appeal court to interfere with decision, application by Attorney-General for leave to appeal against sentence, lengthy delay between conviction and hearing of appeal, Duty of appellate court where there is no judgment, Extension of time within which to note appeal, grounds bias on part of judicial officer what must be shown critical comments and adverse decision not, what record of proceedings of lower court must contain. Joinder of Causes of Action . the goods as set out in the Notice of Seizure and Attachment dated 16 January 2014 issued by the applicant is declared executable. With respect to the second claimant it is ordered that: Kantor and Immerman, applicant’s legal practitioners, J Mambara & partners, 1st  and 2nd claimants’ legal practitioners, Chihambakwe, Mutizwa & Partners, judgment creditor’s legal practitioners, Midlands State University Law Review Journal, University of Zimbabwe Student Law Review Journal, Case note on Zimbabwe Law Officers Association & Anor v National Prosecuting Authorities & Ors CCZ -1-19, Guilt by association: the over-extension of the doctrine of common purpose, Devolution demystified: Emerging debates and prospects for devolution in Zimbabwe A discussion paper, The State is not above the law: Enforcing a judgment against the State when it fails to comply with a judgement, The Role of the Criminal Law in the Protection of Women Against Gender-Based Violence: Case note on S v Jeri HH-516-17, Accessing information held by the State and State institutions Case note on Hitschmann v City of Mutare & Anor HH-211-16. HIGH COURT OF ZIMBABWE. The Mazda 323 as set out in the Notice of Service and Attachment dated 16 January 2014 issued by the applicant is declared not executable. The parties may though by agreement appear before a local court. JOHN RASAI MAPANGA. A registration book on its own is not proof of legal ownership. 28/1981) Supreme Court Rules, RGN. Joinder of Parties . and. In her two affidavits the second claimant does not explain why she does not have any receipts. 7763 Opposite National Sports Stadium, Belvedere West, Harare. Final Papers of the 2016 National Symposium on the Promise of the Declaration of Rights under the Constitution of Zimbabwe: MAGISTRATES’ HANDBOOK FOR CRIMINAL CASES. 7763, opposite National Sport Stadium Belvedere West, Harare on 16 January 2014. Since its inception this Journal has had an Editorial Board consisting of editors from the Faculty of Law at the University of, Using religion to sexually exploit young female parishioners Case note on the Gumbura rape cases - By Geoff Feltoe, When Culture Clashes with the Criminal Law Case note on S v Hamunakwadi 2015 (1) ZLR 392 (H); S v Musino HH-158-17 and S v Taurayi HH-298-90 By Geoff Feltoe, Aligning the Administrative Justice Act with the Constitution, Final Papers of the 2016 National Symposium on the Promise of the Declaration of Rights under the Constitution of Zimbabwe, SELECTED ASPECTS OF THE 2013 ZIMBABWEAN CONSTITUTION AND THE DECLARATION OF RIGHTS, African Customary Law, Customs, and Women's Rights - Muna Ndulo, A GUIDE TO ADMINISTRATIVE AND LOCAL GOVERNMENT LAW IN ZIMBABWE, Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23]. HAROLD CROWN. Interpretation. But in a desperate attempt to retain the cattle, Kunonga’s wife issued interpleader proceedings in terms of the rules of the High Court. The property was attached at stand no. Application to proceed against President or judges. Case note on S v Semba HH-299-17, A ray of hope for the outlawing of corporal punishment in Zimbabwe: A review of recent developments, Doctors who cause the patient deaths Case note on S v McGown 1995 (1) ZLR 4 (H), Judicial appointment in Zimbabwe: defining the concept of “fit and proper person” research paper submitted to the Faculty of Law of the Midlands State University, Reporting a court case arising from false social media report Casenote on Mushunje v Zimbabwe Newspapers, Should provocation be a partial defence to intentional killing of an adulterous spouse? 4. HUSBAND AND WIFE See FAMILY LAW (Husband and wife). joinder of See PRACTICE AND PROCEDURE (Joinder of parties). Labour Court See also EMPLOYMENT (Labour Relations Tribunal). 17 of 2002), Labour Relations Tribunal See also EMPLOYMENT (Labour Court), Unlawful interference with right to earn a living, Urban council employee See EMPLOYMENT (Employee - urban council employees), Vicarious liability of employer for delictual acts of employee, Vicarious liability of master for delictual acts of servant, Vicarious liability of master for negligence of a third party employed by servant, Practising as estate agent without being registered, Admissions See CRIMINAL PROCEDURE (Admissions), Demeanour See EVIDENCE (Credibility - demeanour), EX PARTE APPLICATION See PRACTICE AND PROCEDURE (Application - ex parte), EXCEPTION See PRACTICE AND PROCEDURE (Exception), Exchange Control Regulations 1996 (SI 109 of 1996), Offences under exchange control legislation relating to foreign currency, EXECUTION See PRACTICE AND PROCEDURE (Execution), EXECUTOR See ADMINISTRATION OF ESTATES (Executor), EXTRADITION See CRIMINAL PROCEDURE (Extradition), child removed from jurisdiction by one parent, legitimacyof child born during subsistence of customary law marriage -, return of child to country of habitual residence. Following a flat real GDP in 1999, the crisis has exacerbated and GDP declined by 5.5 per cent in 2000. The stakeholder may invoke Rule … versus . The parties are agreed on the law regarding onus of proof in interpleader proceedings and the requirements to be satisfied by the claimants. Chissano Takes the Baton. 1047/71 and Supreme Court of Zimbabwe Act, Chapter 7.13 (formerly No. The Sheriff for Zimbabwe v Masango & 2 Others (HH 448-19, HC 11275/18) [2019] ZWHHC 448 (03 July 2019); The Sheriff of Zimbabwe v P. T Zhanda & Sons Private Limited & 2 others (HH 35-19, HC 5243/18 X Ref HC 1258/18) [2019] ZWHHC 35 (23 January 2019); The Sheriff for Zimbabwe v Mahachi & Another (HMA 34-18, HC 98/18 Ref Case No. Defamation See DELICT (Defamation - interdict). ENACTED by the Parliament and the President of Zimbabwe. Failure to Proceed After Death . The Sheriff for Zimbabwe v Mahachi & Another (HMA 34-18, HC 98/18 Ref Case No. 3. Provisions of Order 32 to apply. De Villers CJ in Zandberg v Van Zyl supra at p 272 said, “…..possession of a movable raises a presumption of ownership and that therefore a claimant in an interpleader suit claiming the ownership…. S. Banda, for the 1 st and 2 nd claimant. No. Right to take Proceedings . versus. The penalty for failing to change ownership of a motor vehicle as is required by the law is a fine not exceeding level four or to imprisonment not exceeding 3 months or to both such fine and such imprisonment. Court may Order Separate Trials . The ongoing crisis, the result of poor macroeconomic management and unsustainable fiscal policy, has further deteriorated through … She argued that although she had not presented documents which show that the goods are hers, that alone should not defeat her claim. Then in her affidavit of 25 February 2014 in response to this application second claimant stated that the household goods were attached at her house. Defamation: protecting reputation or suppressing media freedom? 205A. must rebut that presumption by clear satisfactory evidence.”. The judgment creditor also argued that what compounds the first claimant’s claim is that the motor vehicle was attached at the judgment debtor’s premises. contract illegal for want of compliance with statutory formalities . 205. The first claimant’s claim to the attachment in execution of judgment HC 3734/11 is hereby granted. The judgment creditor pays the costs of the first claimant and the applicant. DEFAULT JUDGMENT See PRACTICE AND PROCEDURE (Default judgment), extent of act violating dignity (Actio injuriarum), extent of invasion of privacy (Actio injuriarum), voluntary assumption of risk by plaintiff, DIVORCE See FAMILY LAW (Husband and wife - divorce), Domicile of origin and domicile of choice (distinction), donation from one spouse to another (when proper), Act for payment of salary in lieu of notice, Appeal against determination of disciplinary committee under disciplinary code, disciplinary proceedings against employee, injuries sustained in course of employment, interest to employer (what must be shown), suspension of employee See EMPLOYMENT (Suspension), Industrial and Labour Relations Act of Zambia. TSANGA J Magistrates Court Act AN ACT to consolidate and amend the law relating to courts of magistrates, and to provide for the examination, by interrogatories, of persons resident in Zimbabwe, whose evidence is required in civil cases pending in any magistrates court in any neighbouring state. The local court is … 10. The statement said Hippo Valley was not party to the litigation. It would therefore mean that the judgment creditor has no basis for having this motor vehicle sold in order to satisfy its debt. She failed to lead clear satisfactory evidence. peregrinus See COURT (Jurisdiction – peregrinus), Locus standi of holder of power of attorney, Matrimonial matter (PRACTICE AND PROCEDURE), provisional order See PRACTICE AND PROCEDURE (Provisional order), "clean hands” – requirement to come to court with, class action See PRACTICE AND PROCEDURE (Class action). DUBE J. HARARE, 13 May … Nature the claimant can not seek to introduce evidence in the name Zimsun... 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