Nyathi & Ors v Ncube & Ors (HB 68 of 2017; HC 2638 of 2016; XREF HC 2559 of 2016; XREF HC 822 of 2016) [2017] ZWBHC 68 (23 March 2017)

Nyathi & Ors v Ncube & Ors (HB 68 of 2017; HC 2638 of 2016; XREF HC 2559 of 2016; XREF HC 822 of 2016) [2017] ZWBHC 68 (23 March 2017)

Applicants were barred for failure to file heads of argument within the prescribed period and did not seek upliftment of the bar. No basis existed for postponement. The provisional order was discharged and the application dismissed with costs against the applicants.

Citation
[2017] ZWBHC 68
Parties
Applicant: Reverend Clement Nyathi; Applicant: Reverend Joseph Matongo; Applicant: Reverend Able Mephulangogaja; Applicant: Reverend Phibion T Manyowa; Applicant: The Apostolic Faith Mission of Africa; Respondent: Elliot Ncube; Respondent: Estate Late Tony Tshuma (Represented by Sylivanos Ncube as Executrix Dative); Respondent: The Chief Registrar; Respondent: The Sheriff of Zimbabwe; Respondent: The Additional Sheriff of Zimbabwe
Court
Bulawayo High Court
Jurisdiction
Zimbabwe
Judgment Date
23 March 2017
Case Number
HB 68 of 2017 ; HC 2638 of 2016 ; XREF HC 2559 of 2016 ; XREF HC 822 of 2016
Procedural Posture
Opposed Application / Hearing of Return Date for Confirmation or Discharge of Provisional Order
Outcome
Application dismissed, provisional order discharged, costs awarded against applicants.
Legal Topics
Stay of Execution, Rescission of Judgment, Costs De Bonis Propriis, Postponement of Proceedings, Bar for Failure to File Heads of Argument
Source Language
English
Civil Procedure Stay of Execution Rescission of Judgment Costs De Bonis Propriis Postponement of Proceedings Bar for Failure to File Heads of Argument

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Parties

Reverend Clement Nyathi

Applicant

Reverend Joseph Matongo

Applicant

Reverend Able Mephulangogaja

Applicant

Reverend Phibion T Manyowa

Applicant

The Apostolic Faith Mission of Africa

Applicant

Elliot Ncube

Respondent

Estate Late Tony Tshuma (Represented by Sylivanos Ncube as Executrix Dative)

Respondent

The Chief Registrar

Respondent

The Sheriff of Zimbabwe

Respondent

The Additional Sheriff of Zimbabwe

Respondent

Procedural Posture

Opposed Application / Hearing of Return Date for Confirmation or Discharge of Provisional Order

Legal Issues

  1. 1 Whether the applicants were entitled to a postponement of the hearing
  2. 2 Whether the applicants were properly before the court given the bar for failure to file heads of argument
  3. 3 Whether the provisional order staying execution should be confirmed or discharged

Ratio Decidendi

Applicants were barred for failure to file heads of argument within the prescribed period and did not seek upliftment of the bar. No basis existed for postponement. The provisional order was discharged and the application dismissed with costs against the applicants.

Court Disposition

Application dismissed, provisional order discharged, costs awarded against applicants.

Orders

  • Application for postponement dismissed.
  • Provisional order staying execution discharged.