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Citation
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Judgment date
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| May 2006 |
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Application to remove a child to alleged father's custody dismissed: illegitimacy and child's best interests prevail.
Paternity — illegitimate father’s rights — child born during another’s marriage; Custody — best interests of the child; Parental authority of surviving spouse; Appropriateness of removing child prior to paternity testing; Cross‑border relocation for schooling
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31 May 2006 |
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Whether respondent’s sole home should be sold: court enforces pre‑trial agreement and awards respondent the house with compensation to applicant.
Matrimonial property — s7 Matrimonial Causes Act — division of assets where marriage out of community of property; pre-trial minute and in loco inspection as factor in equitable division; procedural requirement to seek leave to amend pleadings for late claims; custody and access
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31 May 2006 |
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Court refused postponement of divorce trial, finding defendant’s reasons dilatory and proceeded in his absence.
Civil procedure — postponement application — witness unavailability and bereavement insufficient if untimely or dilatory — litigant must seek indulgence personally — failure to file synopsis and absence from pre-trial justifies proceeding in absence
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31 May 2006 |
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Plaintiff entitled to specific performance; court rejects defendant’s claim the sale was a sham and orders transfer, costs, and Deputy Sheriff backup.
Property law – agreement of sale – validity and enforceability of written agreement – simulated/disguised transaction (in fraudem legis) – evidence of payment and receipts – specific performance – Deputy Sheriff authorised to sign transfer if default
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31 May 2006 |
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Plaintiff entitled to cancellation of mortgage bond after discharging secured debt despite creditor's refusal citing currency depreciation.
Property law – Mortgage bond – Cancellation upon discharge of secured debt – Tender of balance – Creditor may not refuse valid payment because of currency depreciation – Acceptance of plaintiff's evidence on balance of probabilities
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31 May 2006 |
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The respondent was held in contempt for failing to cancel a mortgage and return title deeds, fined and ordered to pay costs.
Contempt of court — non‑compliance with order to cancel mortgage and return title deed — delays and misleading conduct by respondent — Deeds Registries Regulations (lost documents procedures) — wilful default — fine and attorney‑and‑client costs
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31 May 2006 |
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A judgment obtained while related applications and a consolidation application are pending may be set aside under Rule 449 as erroneously sought.
Civil procedure – Rule 449(1) rescission/correction of judgment – judgment erroneously sought or granted where related applications pending and consolidation sought; Rule 449(2) notice requirement; improper reliance on Order 32 Rule 236(3) and (4)
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31 May 2006 |
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Accused struck elderly deceased with a stool; court accepted prosecution evidence and convicted him of murder with constructive intent.
Criminal law – Murder – constructive intent – assault with weapon (wooden stool) – credibility of witnesses – effect of intoxication on criminal responsibility – causation of fatal head injuries.
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31 May 2006 |
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Conviction for consensual sexual intercourse with a minor upheld based on complainant’s credible evidence and corroboration.
Criminal law — Sexual offences — Consensual sexual intercourse with a minor (s.3(a)) — Corroboration requirement in sexual offence prosecutions — Complainant credibility and corroborative witnesses — Sufficiency of evidence where pregnancy and birth corroborate relationship.
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31 May 2006 |
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Agent could sue as principal, but plaintiff failed to prove quantum or defendants' liability for the stolen scrap.
Agency — agent’s capacity to sue under exception where agent acts as principal; Contract and custodial liability — bonded warehouse operator’s duties; Security contractor’s obligations; Proof of quantum and burden of proof in claims for lost goods; Credibility of evidence and false statements in pre-action correspondence.
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31 May 2006 |
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Divorce granted; court awarded the stand to the applicant and the vehicle to the respondent based on unchallenged contribution evidence.
Family law – Divorce – Default judgment – Just and equitable distribution of matrimonial property – Assessment of direct and indirect contributions – Exclusive award of immovable property where applicant’s unchallenged evidence proves primary financial contribution
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23 May 2006 |
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Failure to determine the degree of negligence before sentencing culpable homicide by driving renders the sentence unjust.
Criminal law — culpable homicide — negligent driving — degree of negligence (ordinary, gross, recklessness) — sentencing — requirement to determine degree of negligence (S v Mapeka) — review for real and substantial justice.
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17 May 2006 |
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Repeated stabbings showed constructive intent to kill; charge should have been attempted murder and sentence was grossly lenient.
Criminal law — Attempted murder — Constructive intent and subjective foreseeability — Multiple stab wounds to vital parts — Appropriateness of charge and manifestly inadequate sentence — Review under s.57 Magistrates Courts Act.
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17 May 2006 |
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Applicant failed to establish suitability for bail pending review due to risk of absconding and rendering review academic.
Bail pending review — burden on applicant to show suitability — concurrent review and bail applications — seriousness of offence, possession of incriminating items and risk of absconding — interest of justice and requirement to stand trial
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10 May 2006 |
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Attempted flight and assault on arrest established a real risk of abscondment, justifying denial of bail pending trial.
Bail pending trial – presumption of innocence – seriousness of offence insufficient alone to refuse bail – real likelihood of abscondment evidenced by attempted flight and assault on arrest – refusal of bail.
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10 May 2006 |
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Court dismissed bail‑pending‑appeal application, holding it improper to grant bail when not seized of the reserved appeal.
Criminal procedure – bail pending appeal – jurisdiction of court hearing bail application – appellate judgment reserved – improper to grant bail in a court not seized of appeal; application should be made to judge who heard appeal.
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10 May 2006 |
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Multiple challenges to extra‑curial statements must be determined in a single consolidated trial within a trial unless exceptional circumstances exist.
Criminal procedure – trial within trial – admissibility of extra‑curial statements – consolidation of trials within trial where multiple accused object – exceptions only where impracticable or unexpected – judicial discretion.
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9 May 2006 |
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Sentence set aside where magistrate failed to canvass and record special circumstances under Section 12 Stock Theft Act.
Criminal law – Stock Theft Act (as amended) – Section 12 mandatory requirement to canvass and record special circumstances before sentencing – Failure to comply renders sentence irregular – Conviction confirmed, sentence set aside and matter referred for resentencing.
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3 May 2006 |