FORM OF PROCEEDINGS

APPLICATION vs ACTION PROCEEDINGS

 TWO BASIC FORMS OF INSTITUTING
PROCEEDINGS
• THERE ARE TWO BASIC FORMS OF PROCEEDINGS WHICH MAY BE USED
FOR INSTITUTING PROCEEDINGS IN THE HIGH COURT:
i) MOTION PROCEEDINGS (BY WAY OF NOTICE OF APPLICATION OR
AFFIDAVIT EVIDENCE)
ii) ACTION PROCEEDINGS: COMMENCED BY THE ISSUANCE OF
SUMMONS
BASIC DIFFERENCES BETWEEN ACTION AND
APPLICATION PROCEEDINGS

• ACTION PROCEEDINGS • APPLICATION/MOTION PROCEEDINGS

• COMMENCED VIA SERVICE OF • ON NOTICE OF MOTION
SUMMONS
• PARTIES ARE DESIGNATED APPLICANT
• PARTIES ARE DESIGNATED PLAINTIFF AND RESPONDENT
AND DEFENDANT
• DISPUTE IS GENERALLY DECIDED ON
• DISPUTE IS GENERALLY IS DECIDED AFFIDAVIT EVIDENCE
ON ORAL EVIDENCE IS LED FROM
WITNESSES
 WHEN TO USE APPLICATION (MOTION)
PROCEEDINGS

• 1. WHEN THERE ARE NO MATERIAL DISPUTES OF FACT

AN EXAMPLE WOULD BE WHEN IT IS A STRAIGHT FORWARD MONEY
CLAIM AND CLAIMANT DOES NOT ANTICIPATE ANY OPPOSITION.
2. WHEN DIRECTED BY STATUTE
 WHEN APPLICATION PROCEEDINGS
IMPERMISSIBLE

• 1. MATRIMONIAL MATTERS
• 2. CLAIMS FOR UNLIQUIDATED DAMAGES (THESE HAVE TO BE
ASSESSED AND QUANTIFIED BY THE COURT)
• 3. CLAIM FOR PROVISIONAL SENTENCE Rule 14 OF H/C RULES
SPECIFICALLY PROVIDES THAT THIS SHOULD BE BY WAY OF SUMMONS
• 4. CIVIL IMPRISONMENT SEE O41R368
 WHEN THERE IS A CHOICE TO PROCEED
EITHER BY WAY OF ACTION OR APPLICATION

• GUIDELINE: GENERALLY IT IS LESS EXPENSIVE TO USE ACTION

PROCEEDINGS THAN APPLICATION PROCEEDINGS. IN SUCH
CIRCUMSTANCES THE APPLICANT WILL BE PENALISED IN COSTS IF HE
USES APPLICATION PROCEEDINGS WHEN HE OUGHT TO HAVE USED
ACTION PROCEEDINGS FOR EXAMPLE WHERE THE CLAIM IS
STRAIGHTFORWARD & CLAIM IS FOR THE PAYMENT OF MONEY AND NO
OPPOSITION IS ANTICIPATED.
 REGAL TRADING CO. LTD v COETZEE 1956
(1) SA

• HELD, “ A CREDITOR SHOULD NOT USE APPLICATION PROCEEDINGS IN

A LIQUIDATED MONEY CLAIM IF SHE IS AWARE THAT THE CREDITOR
DOES NOT CONTEST THE CLAIM AND IS LIKELY TO DEFAULT”
 MILLER v ROUSOT 1975 (1) RLR 3

• THE CASE INVOLVED PAYMENT OF INTEREST

• THE APPLICANT USED APPLICATION PROCEEDINGS. THE RESPONDENT HAD
PREVIOUSLY RAISED FLIMSY EXCUSES IN AN ATTEMPT TO AVOID PAYMENT
OF THE SAME.
• HELD: IN VIEW OF THE PERCULIAR CIRCUMSTANCES THE RESPONDENT HAD
TO BE MADE AWARE HOW STRONG THE APPLICANT’S CASE AGAINST HIM
WAS ON THE AFFIDAVIT HENCE APPLICATION PROCEEDINGS WERE HELD
APPROPRIATE
ZIMBABWE UNITED FREIGHT CO. LTD v S&T
IMPORT AND EXPORT LTD 1981 ZLR 361

• THE APPLICANT BROUGHT AN APPLICATION ON NOTICE OF MOTION

SEEKING JUDGMENT FOR A CERTAIN SUM OF MONEY.
• IT WAS ARGUED ON BEHALF OF THE RESPONDENT THAT THE
APPLICANT SHOULD HAVE USED ACTION PROCEEDINGS
• HELD: APPLICANT HAD NOT SHOWN A STRONG CASE FOR PROCEEDING
BY WAY OF NOTICE OF MOTION AND COSTS WERE AWARDED AS IF
APPLICANT HAD PROCEEDED BY WAY OF ACTION.
WHAT CONSTITUTES A MATERIAL
DISPUTE OF FACT?
SUPA PLANT INVESTMENTS (PVT) LTD V EDGAR
CHIDAVAENZI 2009 (2) ZLR 132 (H)

Held, per MAKARAU JP (as she then was) “A material dispute of fact arises
when such material facts put by the applicant are disputed and traversed by
the respondent in such a manner as to leave the court with no ready answer to
the dispute between the parties in the absence of further evidence”
 MATERIAL DISPUTE OF FACT cont’d

• A MATERIAL DISPUTE OF FACT ARISES WHEN RESPONDENT DENIES

MATERIAL ALLEGATIONS MADE BY DEPONENTS FOR THE APPLICANT
AND PRODUCES POSITIVE EVIDENCE TO THE CONTRARY
• THE QUESTION AS TO WHETHER A REAL AND GENUINE DISPUTE OF
FACT EXISTS IS A QUESTION FOR THE COURT TO DECIDE: SEE ISMAIL &
ANOR v DURBAN CITY COUNCIL 1973 (2) SA 362 (N) AT 374
 MATERIAL DISPUTE OF FACT cont’d

• RESPONDENT’S ALLEGATION OF THE EXISTENCE OF A DISPUTE OF FACT ALONE IS

NOT SUFFICIENT AND THE COURT SHOULD MAKE A DETERMINATION AS TO
WHETHER OR NOT SUCH A DISPUTE OF FACT ACTUALLY EXISTS. PETERSON v
CUTHBERT & CO LTD 1945 AD 420 at 428
(OTHERWISE THE RESPONDENT MAY RAISE FICTITIOUS ISSUES OF FACT TO DELAY
PROCEEDINGS)
WHERE THERE ARE NO DISPUTES OF FACT THE COURT HAS NO DISCRETION NOT TO
HEAR APPLICATION: ROOM HIRE CO. v JEPPE STREET MANSIONS 1949 (3) SA 1155
 MATERIAL DISPUTE OF FACT CONT’D

• ROOM HIRE CO. v JEPPE STREET MANSIONS 1949 (3) SA 1155

• THIS WAS AN APPEAL FROM THE DECISION OF THE WLD DECLARING THE
TENANCY BY THE APPELLANT OF CERTAIN PREMISES BELONGING TO THE
DEFENDANT TO BE NULL AND VOID UNDER S8 0F ORDINANCE 46 OF 1903. THE
GROUNDS ON WHICH THE TENANCY WAS DECLARED NULL AND VOID WAS THAT
THE PREMISES WERE ALLEGEDLY BEING USED AS A BROTHEL. THE COURT HAD
ALSO ORDERED THE EJECTMENT OF THE APPELLANT FROM THE PREMISES. THE
APPLICANT HAD RESISTED THE APPLICATION TO EJECT HIM ON THREE GROUNDS
NAMELY:
 ROOM HIRE CO. v JEPPE STREET
MANSIONS cont’d

1. THAT THERE WAS A MATERIAL DISPUTE OF FACT WHICH COULD NOT

BE RESOLVED ON AFFIDAVIT EVIDENCE
2. THE EVIDENCE ADDUCED ON THE AFFIDAVIT WAS INSUFFICIENT TO
ESTABLISH THE ALLEGED IMPROPER USE OF THE PREMISES
3. ….
 ROOM HIRE CO. v JEPPE STREET
MANSIONS cont’d
• HELD; THE PRINCIPAL WAYS IN WHICH A DISPUTE OF FACT MAY ARISE
ARE: 1. WHEN THE RESPONDENT DENIES ALL THE MATERIAL
ALLEGATIONS MADE BY THE VARIOUS DEPONENTS ON THE
APPLICANT’S BEHALF AND PRODUCES OR WILL PRODUCE POSITIVE
EVIDENCE BY THE DEPONENTS OR WITNESSES TO THE CONTRARY
2. WHEN THE RESPONDENT ADMITS THE APPLICANT’S AFFIDAVIT
EVIDENCE BUT ALLEGES OTHER FACTS WHICH THE
APPLICANTDISPUTES
 ROOM HIRE CO. v JEPPE STREET
MANSIONS cont’d
• 3. WHEN THE RESPONDENT CONCEDES THAT HE HAS NO KNOWLEDGE OF THE
MAIN FACTS STATED BY THE APPLICANT, BUT DENIES THEM, PUTTING THE
APPLICANT TO THE PROOF AND HIMSELF GIVES OR PROPOSES TO GIVE
EVIDENCE TO SHOW THAT THE APPLICANTS AND HIS DEPONENTS ARE BIASED
AND UNTRUTHFUL OR OTHERWISE UNRELIABLE, AND THAT CERTAIN FACTS
UPON WHICH THE APPLICANT RELIES TO PROVE THE MAIN FACTS ARE UNTRUE.
THE ABSENCE OF ANY POSITIVE EVIDENCE POSSESSED BY A RESPONDENT
DIRECTLY CONTRADICTING THE APPLICANT’S MAIN ALLEGATIONS DOES NOT
RENDER THE MATTER FREE OF A REAL DISPUTE OF FACT
 ROOM HIRE CO. v JEPPE STREET
MANSIONS

• THE COURT CONCLUDED THAT A REAL DISPUTE HAD BEEN SHOWN

AND THAT THE COURT A QUO SHOULD HAVE HEARD ORAL EVIDENCE IN
TERMS OF THE RULES
 CAROLE PATRICIA WILLIAMS AND ANOR v
MALCOLM SYDNEY WILLIAMS ORS HH-12-02
• “IN THIS CASE THE APPLICANTS MUST HAVE KNOWN THAT THERE WERE
DISPUTES OF FACT AS THEY HAD INITIALLY ISSUED OUT SUMMONS IN CASE
NO. HC15403/98 RELATING TO THE SAME PARTIES AND ON SIMILAR ISSUES.
THE RESPONDENTS’ OPPOSING AFFIDAVIT HAS RAISED THE SAME
DISPUTED ISSUES AS THEY HAD PLEADED IN THE EARLIER CASE. THIS CASE
WAS SUBSEQUENTLY WITHDRAWN BY THE PLAINTIFFS (APPLICANT IN THIS
CASE). ALTHOUGH THE APPLICANTS SOUGHT TO DEAL WITH THEM IN THE
REPLYING AFFIDAVIT, THESE ARE ISSUES WHICH CAN ONLY BE PROPERLY
DEALT WITH BY ADDUCING EVIDENCE.”
 WHEN TO USE APPLICATION (MOTION)
PROCEEDINGS cont’d

• ONLY PERMISSIBLE IF THERE ARE NO GENUINE DISPUTE OF FACT

• SEE: EX-COMABATANT SECURITY CO. v MSU 2006(1) ZLR 531
• CLAIM WAS BASED ON AN ORAL CONTRACT THE TERMS OF WHICH WERE
DISPUTED AND INVOLVED AN ALLEGATION OF BREACH OF CONTRACT. THE
QUANTUM ARISING FROM THE BREACH WAS ALSO IN DISPUTE
HELD: THAT IT WAS IMPROPER TO USE APPLICATION PROCEEDINGS
 WHEN TO USE ACTION PROCEEDINGS

• WHEN THE DISPUTE INVOLVES MATERIAL DISPUTE OF FACT INCAPABLE

OF RESOLUTION ON AFFIDAVIT EVIDENCE
• MATRIMONIAL MATTERS
• CLAIMS FOR UNLIQUIDATED DAMAGES
• WHEN DIRECTED BY STATUTE e.g. 1. claim for provisional sentence i.e.
O4R20 2. civil imprisonment O41 R20
 MATERIAL DISPUTE OF FACT cont’d

• APPLICATION PROCEEDINGS HAVE BEEN USED IN VARIOUS TYPES OF

CASES WHERE THERE WERE NO DISPUTES OF FACT: e.g. in
APPLICATIONS FOR EJECTMENT
FINAL INTERDICTS
CANCELLATION OF SALE OF LEASE
STRAIGHTFORWARD MONEY CLAIMS (IF DAMAGES ARE NOT CLAIMED)
ETC.
 MATERIAL DISPUTE OF FACT cont’d

• R BAKERS P/L v RUTO BAKERIES P/L 1948(2) SA 626 (T)

Held, a bare denial may suffice without giving evidence in support of the denial
unless the applicant can show that the denial is mala fide and unsupportable
 MATERIAL DISPUTE OF FACT CONT’D

• SOFFIANTINI v MOULD 1956 (4) SA 150

FACTS: The appellant was the owner and lessor of certain premises and the
respondent was the lessee. The appellant was interfering with the respondent’s
occupation of the premises. The respondent applied for and was granted an
interdict restraining the appellant from interfering with his occupation of the
premises. The appellant appealed against the granting of the interdict in that: i)
There was a genuine dispute of fact which could not be resolved on affidavit
evidence and ii) the judge a quo should have directed oral evidence to be heard
 SOFFIANTINI v MOULD cont’d

• HELD: “It is necessary to make a robust common sense approach to dispute

on motion (application proceedings) as otherwise the effective functioning
of the court can be hamstrung and circumvented by the simple and blatant
strategy. The court must not hesitate to decide an issue of facts on affidavit
merely because it may be difficult to do so. Justice can be defeated or
seriously impeded by an over fastidious approach to a dispute raised in
affidavit”
 ZIMBABWE BONDED FIBREGLASS P/L v
LEECH1987(2) ZLR 338 at 339 C-E
• THE COURT SAID “ IT IS, I THINK WELL ESTABLISHED THAT IN MOTION
PROCEEDINGS A COURT SHOULD ENDEAVOUR TO RESOLVE DISPUTES RAISED
IN AFFIDAVIT WITHOUT HEARING OF EVIDENCE. IT MUST TAKE A ROBUST AND
COMMON SENSE APPROACH AND NOT AN OVERFASTIDIOUS ONE; ALWAYS
PROVIDED THAT IT IS CONVINCED THAT THERE IS NO REAL POSSIBILITY OF
ANY RESOLUTION DOING AN INJUSTICE TO THE OTHER PARTY CONCERNED.
CONSEQUENTLY THERE IS A HEAVY ONUS UPON AN APPLICANT SEEKING
RELIEF IN MOTION PROCEEDINGS, WITHOUT THE CALLING OF EVIDENCE,
WHERE THERE IS A BONA FIDE AND NOT MERELY ILLUSORY DISPUTE OF FACT”
THE PLASCON-EVANS RULE
PLASCON-EVANS PAINTS LTD v van RIEBECK
PAINTS (pty) Ltd 1984 (3) SA 624 (A)

• Held, “… WHERE IN PROCEEDINGS ON MOTION DISPUTES OF FACT

HAVE ARISEN ON THE AFFIDAVITS, A FINAL ORDER, WHETHER IT BE
AN INTERDICT OR SOME OTHER FORM OF RELIEF, MAY BE GRANTED
IF THOSE FACTS AVERRED IN THE APPLICANT’S AFFIDAVITS WHICH
HAVE BEEN ADMITTED BY THE RESPONDENT, TOGETHER WITH THE
FACTS ALLEGED BY THE RESPONDENT, JUSTIFY AN ORDER….
PLASCON-EVANS PAINTS LTD v van RIEBECK
PAINTS (pty) Ltd (cont’d)

• … THE POWER OF THE COURT TO GIVE SUCH FINAL RELIEF ON THE PAPERS
BEFORE IT IS, HOWEVER, NOT CONFINED TO SUCH A SITUATION. IN CERTAIN
INSTANCES THE DENIAL BY THE RESPONDENT OF A FACT ALLEGED BY THE
APPLICANT, MAY BE SUCH AS TO RAISE A REAL, GENUINE OR BONA FIDE
DISPUTE OF FACT… IF IN SUCH A CASE THE RESPONDENT HAS NOT AVAILED
HIMSELF OF HIS RIGHT TO APPLY FOR THE DEPONENTS CONCERNED TO BE
CALLED FOR CROSS-EXAMINATION… AND THE COURT IS SATISFIED AS TO
THE INHERENT CREDIBILITY OF THE APPLICANT’S FACTUAL AVERREMENT…
PLASCON-EVANS PAINTS LTD v van RIEBECK
PAINTS (pty) Ltd (cont’d)

• … IT MAY PROCEED ON THE BASIS OF THE CORRECTNESS THEREOF AND

INCLUDE THIS FACT AMONG THOSE UPON WHICH IT DETERMINES
WHETHER THE APPLICANT IS ENTITLED TO THE FINAL RELIEF WHICH HE
SEEKS. MOREOVER THERE MAY BE EXCEPTIONS TO THIS GENERAL
RULE, AS FOR EXAMPLE WHERE THE ALLEGATIONS OR DENIALS OF THE
RESPONDENT ARE SO FAR FETCHED OR CLEARLY UNTENABLE THAT THE
COURT IS JUSTIFIED IN REJECTING THEM MERELY ON THE PAPERS.
 SAVANHU v MARERE NO & ORS 2009(1) ZLR
320 (S)

HELD, PER MALABA DCJ, “AS THE PROCEEDINGS WERE BY WAY OF A

COURT APPLICATION AND THERE WERE DISPUTES OF FACT THE FINAL
RELIEF COULD ONLY HAVE BEEN GRANTED IF THE FACTS STATED BY THE
FIRST RESPONDENT TOGETHER WITH THE ADMITTED FACTS IN THE
APPELLANT’S AFFIDAVIT JUSTIFIED SUCH AN ORDER. PLASCON EVANS
LTD v VAN RIEBECK PAINTS (PTY) LTD 1984 (3) SA 623 (A) at 634 H-635 B
 OPTIONS AVAILABLE TO A COURT
FINDS THAT THERE ARE MATERIAL
DISPUTES OF FACT
 OPTIONS AVAILABLE TO THE COURT

• IT HAS FOUR OPTIONS

• 1. IT CAN DISMISS THE APPLICATION
• 2. THE COURT CAN ORDER THE PARTIES TO GO TO TRIAL IN TERMS OF RULE
46 (10) OF THE HIGH COURT RULES
3.THE COURT CAN HEAR ORAL EVIDENCE ON THE ISSUE IN DISPUTE IN TERMS
OF Rule 58(12)
• 4. TAKE A ROBUST APPROACH AND DECIDE THE MATTER ON AFFIDAVIT
EVIDENCE
 MUSEVENZO v BEJI & ANOR HH-268-13

• HELD; IN MOTION PROCEEDINGS, A COURT SHOULD ENDEAVOUR TO RESOLVE

THE DISPUTE RAISED IN THE AFFIDAVITS WITHOUT HEARING EVIDENCE. IT
MUST TAKE A ROBUST AND COMMON SENSE APPROACH AND NOT AN
OVERFASTIDIOUS ONE, ALWAYS PROVIDED THAT IT IS CONVINCED THAT THERE
IS NO REAL POSSIBILITY OF ANY RESOLUTION DOING AN INJUSTICE TO THE
OTHER PARTY CONCERNED. CONSEQUENTLY THERE IS A HEAVY ONUS UPON
AN APPLICANT SEEKING RELIEF IN MOTION PROCEEDINGS, WITHOUT THE
CALLING OF EVIDENCE WHERE THERE IS A BONA FIDE AND NOT MERELY
ILLUSORY DISPUTE OF FACT.
 MUSEVENZO v BEJI & ANOR (cont’d)

• WHERE THERE IS A GENUINE DISPUTE OF FACT ON THE PAPERS THE COURT CAN
PROCEED IN ONE OF SEVERAL WAYS:
• 1. IT CAN TAKE A ROBUST VIEW OF THE FACTS AND RESOLVE THE DISPUTE ON THE PAPERS;
• 2. IT CAN PERMIT OR REQUIRE ANY PERSON TO GIVE ORAL EVIDENCE IN TERMS OF R229B
OF THE HIGH COURT RULES IF IT IS IN THE INTEREST OF JUSTICE TO DO SO
• 3. IT CAN REFER THE MATTER TO TRIAL, WITH THE APPLICATION STANDING AS THE
SUMMONS OR THE PAPERS ALREADY FILED OF RECORD STANDING AS PLEADINGS OR
• 4. IT CAN DISMISS THE APPLICATION ALTOGETHER IF THE APPLICATION SHOULD HAVE
REALISED WHEN LAUNCHING THE APPLICATION
 OPTION1
• MASAKUSA v NATIONAL FOODS LTD &
ANOR 1983 (1) ZLR 232
DISMISS THE APPLICATION
 MASAKUSA v NATIONAL FOODS LTD &
ANOR 1983 (1) ZLR 232
• THE FOLLOWING WAS SAID” NOW IN THE PRESENT CASE I HAVE NOT THE SLIGHTEST
DOUBT THAT THE APPLICANT SHOULD HAVE REALISED THAT A SERIOUS DISPUTE OF
FACT WAS TO DEVELOP AS BETWEEN HIMSELF AND BOTH RESPONDENTS. SHOULD I
NEVERTHELESS, IN THE INTEREST OF SAVING COSTS AND GENERALLY GETTING ON
WITH THE MATTER, CONDONE THE WRONG PROCEDURAL APPROACH? IN MY VIEW IT
WOULD BE WRONG TO DO SO. THERE ARE A NUMBER OF REASONS. IN THE FIRST PLACE
THIS IS A VERY CLEAR EXAMPLE OF THE WRONG CASE OF PROCEDURE. THE CONFLICTS
OF FACT WERE GLARING AND OBVIOUS AND WERE IN FACT REFERRED TO IN THE
APPLICANT’S AFFIDAVIT. IN THE SECOND PLACE THE CLAIM FOR DAMAGES WAS
CLEARLY ILLIQUID AND WOULD PATENTLY NEED EXAMINATION BY WAY OF EVIDENCE”.
 • Rule 46 (10)
• CHIRINDA v CHITEPO &
ANOR SC42/92
OPTION 2
• DULY’S (PVT) LTD v BROWN
REFER MATTER TO SC 172/1993
TRIAL
• JONGANI v KADENHE SC
24/92
 Rule 46 (10) provides as follows:

• “Where in any application, including an application for provisional sentence or for the
arrest of a person or the attachment of property, there is conflict of evidence and the
matter cannot be decided without hearing oral evidence, the court may –
• (a) order that such oral evidence as the parties may desire to produce be heard
forthwith or on such a date as the court may fix;
• (b) Order that the matter should stand over for trial as if the proceedings had been
commenced by summons, in which event the court may give directions as to
 Court may give directions under Rule 46 (10)

• (i) dispensing with all pleadings or any particular pleading; or

• (ii) dispensing with the oral evidence of any person who has given or may give
evidence upon affidavit
(c) Make such other orders or give such other directions as the court considers are
most conducive to the speedy and inexpensive determination of the matters in
issue”
DISPUTES OF FACT: REFER MATTER TO TRIAL
CHIRINDA v CHITEPO & ANOR SC42/92
• IN THE HIGH COURT APPELLANT HAD BROUGHT AN APPLICATION SEEKING CESSION
AND INTEREST IN CERTAIN IMMOVABLE PROPERTY WHICH SHE SAID WAS SOLD TO HER
IN 1985 BY ONE GIDEON CHITEPO
• RESPONDENTS WERE DECEASED’S HEIR AND CHIUNGWIZA TOWN COUNCIL.
• CHITEPO HAD DIED IN 1989 BEFORE CESSION HAD BEEN EFFCTED.
• THERE WERE SEVERAL DISPUTES OF FACT INCLUDING THE SIGNATURE OF CHITEPO ON
THE AGREEMENT OF CESSION WHICH APPEARED TO DIFFER FROM OTHER DOCUMENTS
WHICH HE HAD SIGNED DURING HIS LIFETIME, AND HIS REAL NAME WHICH DIFFERED
FROM HIS DEATH CERTIFICATE AND OTHER DOCUMENTS
 CHIRINDA v CHITEPO & ANOR cont’d

• THE HIGH COURT HAD DISMISSED THE CLAIM ON THE BASIS THAT THE CHITEPO’S
SIGNATURE ON THE AGREEMENT OF CESSION DIFFERED MATERIALLY FROM THAT ON HIS
DRIVER’S LICENCE.
• ON APPEAL THE SC HELD THAT THE DISPUTE SHOULD HAVE BEEN REFERRED TO TRIAL
BECAUSE: 1. IT WAS APPARENT THAT THE DECEASED’S SIGNATURE VARIED ON SEVERAL
OTHER DOCUMENTS SIGNED BY HIM DURING HIS LIFETIME. 2. THAT THE DAUGHTERS OF
THE DECEASED WHO WERE WITNESSES TO THE AGREEMENT OF CESSION CLAIMED THAT
THEY HAD DONE SO UNDER DURESS.
• HELD THEREFORE THESE MATTERS COULD ONLY BE INVESTIGATED AT TRIAL. APPEAL
SUCCEEDED.
 BHURA v LALLA 1974 (2) SA
336

OPTION 3
BARKLIE v MASANGO HH
324/84
HEAR EVIDENCE ON ZIMBABWE BONDED FIBRE
DISPUTE
GLASS P/L v PEECH 1987 (2)
ZR 338
 BHURA v LALLA 1974 (2) SA 336

• THE DISPUTE BEFORE THE HIGH COURT INVOLVED THE MANNER IN WHICH A CERTAIN
DECEASED ESTATE WAS BEING ADMINISTERED. IN PARTICULAR THE QUESTION WAS
WHETHER TO SET ASIDE THE SALE OF CERTAIN IMMOVABLE PROPERTY ON THE BASIS
THAT IT HAD BEEN SOLD BY THE EXECUTORS OF THE ESTATE AT AN UNREASONABLY
LOW PRICE. THE JUDGE IN THE HIGH COURT DECLARED THAT THE RESPONDENT HAD
HAD NOT PROVED THAT THE PRICE IN QUESTION WAS UNREASONABLE BUT SET ASIDE
THE SALE ON THE BASIS THAT THE PROPERTY WAS NOT SUPPOSED YTO BESOLD FOR
10 YEARS IN TERMS OF THE WILL OF THE DECEASED AND THAT THE EXECUTORS HAD
FAILED IN THEIR DUTIES IN FAILING TO MORTGAGE THE PROPERTY IN THE INTERESTS
OF THE BENEFICIARY OF THE WILL WHO WAS A MINOR WAS INVOLVED
 BHURA v LALLA cont’d

• HELD ON APPEAL: ON THE QUESTION OF PROCEDURE THAT THE

MATTER SHOULD HAVE BEEN REFERRED TO TRIAL. AND THAT THE
HEARING OF ORAL EVIDENCE ON APPLICATION PROCEEDINGS IS NOT
INTENDED TO CONVERT THE PROCEEDINGS INTO A TRIAL.
 OPTION 4
TAKE A ROBUST AND SHANA v SHANA 1990 (2) ZLR 129
COMMON SENSE
APPROACH AND DECIDE
THE MATTER ON
AFFIDAVIT EVIDENCE
 SHANA v SHANA 1990 (2) ZLR 129

• The applicant and her husband jointly owned the former matrimonial
home which formed part of the property disputed in a pending
matrimonial action. Applicant’s husband was alleged to have forged her
signature on the agreement of sale and transfer documents and applicant
proceeded by notice of motion to set aside the sale and the transfer of the
immovable property. Applicant’s husband denied the forgery in his
opposing affidavit averring that applicant had been a signatory to the
agreement of sale and transfer
 SHANA v SHANA “cont’d)

• Held that whilst there was a material dispute of fact on the papers the
circumstances of the case were such that it was capable of resolution
without viva voce evidence being led.
• The court proceeded to resolve the matter on paper and gave relief to
applicant holding that the signature had been forged