Busangabanye and Another v Matsika and 5 Others (680 of 2022) [2022] ZWHHC 680 (28 September 2022)

Busangabanye and Another v Matsika and 5 Others (680 of 2022) [2022] ZWHHC 680 (28 September 2022)

The court found that while the applicants introduced new facts and evidence in the answering affidavit without a full explanation, the authenticity and relevance of the documents were not seriously challenged, no mala fides was shown, and any prejudice to respondents could be remedied by costs and the opportunity to file additional affidavits. The overriding interest of justice justified admitting the material.

Citation
[2022] ZWHHC 680
Parties
Applicant: Phibeon Busangabanye; Applicant: Transfrontier Investments (Pvt) Ltd; Respondent: Farai Matsika; Respondent: Faramatsi Motors (Pvt) Ltd; Respondent: Edson Gatsi; Respondent: Doves Holdings (Pvt) Ltd; Respondent: Doves Life Assurance (Pvt) Ltd; Respondent: Insurance and Pensions Commission
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
28 September 2022
Case Number
680 of 2022
Procedural Posture
Interlocutory Application / Ruling on Application to Expunge Portions of Answering Affidavit
Outcome
application to expunge dismissed
Legal Topics
Derivative Actions, Affidavit Practice, Adduction of Evidence, Corporate Governance
Source Language
English
Civil Procedure Company Law Derivative Actions Affidavit Practice Adduction of Evidence Corporate Governance

Case Brief

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Parties

Phibeon Busangabanye

Applicant

Transfrontier Investments (Pvt) Ltd

Applicant

Farai Matsika

Respondent

Faramatsi Motors (Pvt) Ltd

Respondent

Edson Gatsi

Respondent

Doves Holdings (Pvt) Ltd

Respondent

Doves Life Assurance (Pvt) Ltd

Respondent

Insurance and Pensions Commission

Respondent

Procedural Posture

Interlocutory Application / Ruling on Application to Expunge Portions of Answering Affidavit

Legal Issues

  1. 1 Whether new facts and evidence in the answering affidavit should be expunged for altering the cause of action
  2. 2 Whether the court should exercise discretion to admit additional evidence filed out of time

Ratio Decidendi

The court found that while the applicants introduced new facts and evidence in the answering affidavit without a full explanation, the authenticity and relevance of the documents were not seriously challenged, no mala fides was shown, and any prejudice to respondents could be remedied by costs and the opportunity to file additional affidavits. The overriding interest of justice justified admitting the material.

Court Disposition

application to expunge dismissed

Orders

  • Application to expunge portions of the answering affidavit is dismissed.
  • Respondents granted leave to file and serve additional affidavits within 10 days.