Musekiwa v Mutambudzi & Anor (HC 2205 of 2014; XREF HC 2206 of 2014) [2015] ZWBHC 208 (21 October 2015)
Applicant failed to apply for amendment before judgment and writ of execution; the matter was res judicata and the application for review had no merit.
Source-derived case information.
- Citation
- [2015] ZWBHC 208
- Parties
- Applicant: Accumen Musekiwa; 1st Respondent: Clifford Mutambudzi; 2nd Respondent: Vimbai Mutukwa N. O.
- Court
- Bulawayo High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HC 2205 of 2014 ; XREF HC 2206 of 2014
- Procedural Posture
- Opposed Court Application / Judgment on Review Application
- Outcome
- application dismissed with costs
- Legal Topics
- Pleadings, Striking Out, Amendment of Pleadings, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Accumen Musekiwa
Applicant
Clifford Mutambudzi
1st Respondent
Vimbai Mutukwa N. O.
2nd Respondent
Procedural Posture
Opposed Court Application / Judgment on Review Application
Legal Issues
- 1 Whether the applicant could amend his plea after judgment and writ of execution had been issued
- 2 Whether the grounds for review had merit
Ratio Decidendi
Applicant failed to apply for amendment before judgment and writ of execution; the matter was res judicata and the application for review had no merit.
Court Disposition
application dismissed with costs
Orders
- application is dismissed with costs
Full Case Text
Judgment text and source record
1 paragraphs
1 HB 208-15 HC 2205-14 X REF HC 2206-14 ACCUMEN MUSEKIWA Versus CLIFFORD MUTAMBUDZI And VIMBAI MUTUKWA N. O. IN THE HIGH COURT OF ZIMBABWE KAMOCHA J BULAWAYO 22 OCTOBER 2015 Opposed Court Application Applicant in person Mr Magodora for 1st defendant No appearance from 2nd respondent KAMOCHA J: On 9 August 2014 the first respondent made an application to strike out the applicant’s plea on the basis that it was vague and embarrassing. The application was granted and the 1st respondent’s plea was accordingly struck out. The next day which was 10 August 2014 the trial magistrate who is the second respondent issued a writ of execution in favour of the 1st respondent. The trial magistrate seems to have proceeded in terms of Order 16 Rule 16 of the Magistrates’ Court (Civil) Rules 1980 which recites that: “If an exception to or motion to strike out matter from a plea is sustained and no application for amendment is made, or having been made, is refused, the court may, if the plea then discloses no defence, give judgment for the plaintiff.” It is common ground that when the writ of execution was issued no application to amend had been made by the applicant to say he intended to make such application to amend. Applicant wanted to amend when the judgment had been granted and a writ of execution had been issued. The matter was indeed res judicata. HB 208-15 HC 2205-14 X REF HC 2206-14 Secondly the amount involved is a refund of $10 000,00 which respondent had paid to applicant. Applicant had also expressly consented in the Deed of Cession to the jurisdiction of the Magistrates’ Court. Applicant does not have a bona fide defence. The grounds for review are devoid of any merit. In the premise this application fails and is dismissed with costs. Magodora & Partners, 1st defendant’s legal practitioners