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Citation
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Judgment date
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| January 2011 |
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Summons against a peregrinus issued without prior attachment/leave is void; attachment and settlement based on it are null.
Civil procedure — Jurisdiction founded by attachment ad fundandam jurisdictionem — Peregrinus defendants — High Court Act s15 — Requirement to show presence of defendant or property within Zimbabwe before issuing process — Nullity of order and proceedings founded on invalid attachment
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26 January 2011 |
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High Court refused consolidation involving a withdrawn Magistrates' Court matter; review rendered moot and application dismissed with costs.
Civil procedure – consolidation of actions – High Court may consolidate separate High Court actions but cannot consolidate Magistrates' Court matters with High Court matters; withdrawal and abandonment of underlying proceedings render related review applications moot; parties should pursue confirmation/discharge of provisional orders and set main actions down for trial.
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26 January 2011 |
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A probation officer lacked reasonable grounds to remove a child; an existing custody order cannot be overridden without independent credible evidence.
Children’s Act s14 – removal to place of safety – requirement of reasonable grounds; duty of probation officer to investigate; evidentiary weight of reports procured by interested parties; interaction between statutory removal powers and existing court custody orders.
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26 January 2011 |
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Magistrate’s excessive firearm sentence and duplicative pointing counts were corrected on review, reducing aggregate imprisonment to six years.
Criminal law – Firearms Act s4(4)(b) – statutory maximum sentence – duplication of convictions – pointing a firearm at multiple persons as single transaction – amendment of counts – concurrency of sentences – review of magistrate’s sentencing.
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26 January 2011 |
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Cancellation of mining claim was ultra vires for failing to follow statutory procedure; applicant remains lawful registered holder.
Mining law – cancellation of certificate of registration – non-compliance with s50(2)–(3) – procedural fairness – overpegging disputes to be dealt with under ss353–354 – cancellation ultra vires and void ab initio
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19 January 2011 |
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Customary marriage recognised for succession; where two wives lived separately each entitled to her house, plaintiff awarded matrimonial house and effects.
Administration of Estates Act – recognition of customary marriages for succession – parity with civil marriages; where deceased survived by two wives living separately, each entitled to house and household goods she occupied; proof of customary marriage and cohabitation; executor/master directed to transfer property.
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19 January 2011 |
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Tenant failed to prove a 15-year verbal lease or statutory tenancy; eviction and attorney-and-client costs ordered.
Eviction — Notice to terminate lease — Unilateral effect of notice; Verbal lease — essential terms (identity of property, duration, rent) required; Burden of proof on party alleging oral long-term lease; Statutory tenancy — requirement to pay rent and pay rent into court; Commercial Rent Regulations (SI 32/07) — protection not available to non-paying occupant; Costs — awarded on legal practitioner and client scale.
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12 January 2011 |
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Magistrate erred by relying on irrelevant prior convictions and imposing excessive imprisonment for a statutory fineable touting offence.
Criminal law — Road Motor Transportation Act s40 (touting) — statutory penalty: fine (level 4) or imprisonment not exceeding 3 months — sentencing: preference for fine where statute allows; improper reliance on irrelevant prior convictions renders sentence excessive — review and substitution of sentence.
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12 January 2011 |
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Making pupils stand for unpaid school fees is ill-treatment under the Children’s Act; conviction confirmed, sentence reduced.
Children’s Act s7(1) – ill-treatment/neglect – making pupils stand for unpaid fees; sufficiency and corroboration of pupil evidence; s4 defence (lack of means) – inapplicable where conduct is deliberate punishment; schools may not coerce minors to recover parental fees.
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12 January 2011 |
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Urgent stay application dismissed for self-created non-urgency, material non-disclosure and non-joinder; statutory remedies available.
Urgency – self-created delay and inaction; Stay of execution pending appeal; Interlocutory orders not appealable; Duty of full disclosure and joinder of subsequent tenants; Rent Board powers to consider recurrent expenses; Alternative remedies — appeal to Administrative Court or review in High Court.
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5 January 2011 |