JOCKSTAR INVESTMENTS (PRIVATE) LIMITED AND ANOTHER v MASHIRI AND ANOTHER (2 of 2026) [2026] ZWHHC 2 (2 January 2026)

1 HH 02-26 HCH 4244/24 JOCKSTAR INVESTMENTS (PRIVATE) LIMITED and JITI LAW CHAMBERS versus TARISAI MASHIRI and MESSENGER OF COURT HIGH COURT OF ZIMBABWE MAWADZE DJP and WAMAMBO J HARARE, 22 May 2025 & 2 January 2026 Civil Appeal B. Maunze, for the appellants in the main appeal and for the 1st and 2nd respondents in the cross appeal. N. Musviba, for the 1st respondent in the main appeal and for the cross appellants. WAMAMBO J: This matter is an appeal against the judgment of the Magistrate sitting at Harare Magistrates Court. A cross appeal was also launched. The background of the matter is that in the Court a quo the first respondent Tarisai Mashiri sought a compelling order couched as follows, per draft order:- "IT IS ORDERED THAT 1. The application be and is hereby granted 2. The 2nd respondent be and is hereby ordered to facilitate transfer to applicant of stand number 3024 of Zizalisari Lot 4, held under deed of Transfer number 1406/2003 within seven (7) days of provision of her ID number, payment of conveyancing fees, disbursement fees, agreement of sale, clearance certificate issued by 1st respondent and stamp duty as so advised when the file is ready for lodging with the Register of Deeds" In the event of default by Respondents, the 3rd Respondent be and is hereby ordered to sign all necessary documents on behalf of 1st respondent in order to pass transfer to applicant. 3. 4. Should the 2nd respondent refuse or be unable to facilitate transfer of the described stand in paragraph 2 of this order, the applicant be and is hereby ordered to engage other conveyancers and 2nd respondent be and is hereby compelled to surrender all documents essential for the purposes of transfer." HH 02-26 HCH 4244/24 The first respondent in the Court a quo is the first appellant in this case (Jockstar Investments (Private) Limited). The second respondent in the Court a quo is the second appellant in this case (Jiti Law Chambers) Tendai Mashiri (the applicant in the Court a quo) is the first respondent. The third respondent in the Court a quo is the second respondent in this case (The Messenger of Court) I will refer to the parties by name where necessary to avoid confusion. In the cross appeal Tendai Mashiri is the cross appellant. Jockstar Investments (Private) Limited is the first cross respondent. Jiti Law Chambers is the second cross respondent while the Messenger of Court is the third cross respondent. Faced with an application for a compelling order the Court a quo rendered a decision upholding a point in limine raised to the effect that there were material disputes of fact and that the matter should be referred for trial. As is clear from the fact that there is an appeal and a cross appeal parties on both divides were unhappy with the decision rendered by the Court a quo. I will refer to the appeals as the main and cross appeals. In the main appeal the three grounds of appeal are formulated as follows:- “1. The Court a quo erred in failing to determine the issue of security costs payable by the 1st respondent who is a peregrinus. 2. The Court a quo grossly erred in failing to determine the issue of joinder of the 2nd appellant. 3. At any rate, the court a quo grossly erred in upholding a preliminary point of material disputes of fact that the appellants had abandoned." The relief sought is for the appeal to be allowed with costs, the judgment of the Court a quo set aside and the remittal of the matter to the Court a quo for a hearing de novo before a different Magistrate. The cross appeal is grounded upon two grounds of appeal which read as follows:- HH 02-26 HCH 4244/24 "1. The Magistrate erred at law in not granting the judgment in favour of the cross appellant by holding that the 1st and 2nd cross Respondents affidavit was valid yet the resolution authorising the deponent to represent the cross respondents was signed by the deponent himself and not even confirmed by the Company Secretary. 2. The Magistrate Court grossly erred at law in not granting judgment in favour of the appellant on the basis that there are material disputes of fact when in fact there were none as there was a signed agreement between the parties spelling out how and when everything can take place in relation to the payment of taxes, and despite the fact that the cross respondents had even abandoned such point in limine of material disputes of fact." The cross appellant seeks relief wherein the appeal will succeed and the judgment of the Court a quo substituted with an order as originally applied for with some variations. During oral submissions, Mr Maunze impugned the cross appeal. He submitted that the notice of appeal fails to identify which part of the judgment is being appealed against. Further that the notice of appeal which effectively is noted as a part appeal seeks substantive relief, which a part appeal can not at law achieve. Order 31 Rule 3 and (4)(a) of the Magistrates Court Rules provides as follows:- "(3) A cross appeal shall be noted by the delivery of notice within seven days after the delivery of the notice of appeal. (4) A notice of appeal or of cross appeal shall state— (a) whether the whole or part only of the judgment or order is appealed against and, if part only then what part Clearly in this case the part which is appealed against is not identified, contrary to the Rules of Court. That however is not the end of the matter. The cross appellants seek substantive relief in a matter where the Court a quo did not deal with the merits of the case. This Court cannot substitute a judgment rendering relief that was not addressed and resolved by the Court a quo. In the circumstances the cross appeal lacks merit. The main and cross appeals raise various grounds which have been regurgitated in this judgment. I take the considered view that the Court a quo rendered a decision that did not effectively dispose of the matter. That decision is attacked by both the main appellants and the cross appellant. The decision is attacked because the material disputes of fact issue was raised but later abandoned. Effectively the Court a quo rendered a decision on an issue that had been abandoned. The abandonment of the preliminary issue of material disputes of fact was abandoned by the appellants in the main appeal in the supplementary heads of argument. The relevant excerpt is at page 107 of the record in paragraph 1.3 which reads as follows; "1.3. Lastly, the 1st and 2nd respondents abandon their preliminary point about material disputes of fact" — The abandonment is expressed in very clear terms. By rendering a decision upholding an abandoned point in limine the Court a quo fell into grave error and misdirected itself. HH 02-26 HCH 4244/24 In Shorai Mavis Nzara & Others v Cecilia Kashumba N. O & Others SC 18/18 at page 11 UCHENA JA expressed himself thus:— "It is clear from the Court a quo's order that some of the orders it granted had not been sought by either party. It is also clear that parties had not made submissions for or against those orders. They were granted mero motu by the Court a quo. It did so without seeking the parties views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by evidence led. The function of a Court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the Court's mind but has not been raised by the parties or addressed by them either in their pleadings in evidence or in submissions from the bar, the Court is at liberty to put the question to the parties and ask them to make submissions on the matter.” The Court went further and failed to address other preliminary issues before it. The issues of security costs of a peregrine, and the joinder of the now first appellant were advanced but never determined by the Trial Court. The Court a quo effectively dealt with a preliminary issue that had been abandoned and was effectively not before it. The Court a quo rendered a decision upholding the same abandoned point in limine. Other points in limine were raised and were ignored by the Court a quo. In the circumstances of this matter, there is need to remit the matter to be determined afresh, before a different Magistrate. On the issue of costs we are of the view that to be fair to the parties each party should bear its own costs. The replete errors by the Court a quo were not of either party's making. IT IS ORDERED AS FOLLOWS:— 1. The main appeal be and is hereby allowed. 2. The cross appeal is dismissed. 3. The matter is remitted to the Court a quo for a hearing de novo before a different Magistrate. 4. Each party shall bear its own costs. WAMAMBO J:………………………………….. MAWADZE DJP agrees……………………………………. HH 02-26 HCH 4244/24 Jiti Law Chambers, legal practitioners for the main appellants and for respondents in the cross appeal. Ndlovu, Pratt Law Chamber,s legal practitioners for the respondent in the main appeal and cross appellant.