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Citation
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Judgment date
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| December 2011 |
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Conviction quashed where magistrate lacked jurisdiction and failed to apply mind; matter remitted with credit for time served.
Criminal law — aggravated indecent assault v. rape penalty — jurisdiction of magistrate; permissible verdicts (indecent assault); attempted rape; review procedure and delays; sentencing credit for time served.
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28 December 2011 |
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Attorney General’s veto of granted bail under section 121 must be exercised judiciously and supported by evidence.
Criminal procedure – Bail – Section 121(1) Criminal Procedure and Evidence Act – Attorney General’s power to appeal bail – Exercise of discretion must be judicious; speculative prosecution assertions insufficient to deny bail; primary penalty a fine reduces flight risk
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15 December 2011 |
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Rule 348A(5a) does not permit a mortgagor to suspend sale of specially executable property in foreclosure; application dismissed.
Execution – foreclosure – specially executable property – Order 40 Rule 348A(5a) not applicable to sale of mortgaged property; procedural lapse – application filed outside 10-day period; enforcement of judgment creditor's rights; protection of mortgage as real security; public policy and commercial considerations
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14 December 2011 |
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Whether a party congress validly elected new leadership and whether the respondent could lawfully repudiate that result and continue to act as party president.
Party law – validity of party congress – withdrawal from contest – effect on party presidency; Declaratory and interdictory relief – requirements (clear right, irreparable harm, absence of alternative remedy, balance of convenience); Internal party disputes – role of courts and effect of pending external challenges
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14 December 2011 |
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Stay of execution and rescission refused where eviction had occurred, material non-disclosure and BIPA defence untenable.
Civil procedure – Urgent application and interim relief – Duty of full and frank disclosure – Stay of execution incompetent where execution already carried out – Rescission of default judgment requires bona fide defence on merits – Gazetted land and offer letters: BIPAs do not prevent compulsory acquisition; holders of offer letters have right of occupation
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14 December 2011 |
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Court sold the jointly registered matrimonial home and awarded 60% to the plaintiff, 40% to the defendant.
Family law – Matrimonial property – Jointly registered property presumption of equal ownership rebuttable by proof of unequal contributions; credibility of witnesses; just and equitable division; sale of matrimonial home; 60/40 split.
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14 December 2011 |
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Strong prosecution evidence and high risk of abscondment justified refusal of bail pending trial.
Bail—robbery with violence and explosives—identification parade and recovery of incriminating items—strength of State case—risk of abscondment—bail refused.
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7 December 2011 |
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Applicant (union/creditor) established grounds for provisional judicial management due to inability to pay debts and mismanagement.
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7 December 2011 |
| November 2011 |
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Failure to give statutory notice and institution after the three‑month period barred the applicant’s claim for release of the seized vehicle.
Customs and Excise Act s196(1) – mandatory 60‑day notice (State Liabilities Act) before suing Commissioner; s193(12) – three‑month time limit for applications for release of seized goods; failure to give notice and prescription are fatal to claims for return of seized property
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30 November 2011 |
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Applicant who failed to oppose registration of an arbitral award was ordered to pay costs after belated challenge at execution stage.
Labour law – registration of arbitral award (s 98(14)) – stay of execution overtaken by rescission – service and failure to oppose registration – belated objections at execution stage – costs awarded against applicant
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30 November 2011 |
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Spoliation applications dismissed because section 16B vests acquired land in the State and ousts court jurisdiction to challenge acquisition.
Property law – Spoliation – Acquired land – Constitutional section 16B ousts judicial review of land acquisition – Ownership vested in State – BIPA-held land liable to compulsory acquisition – Subdivision of land and defective property description
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30 November 2011 |
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Whether urgent relief can proceed when the underlying review was filed out of time without prior condonation.
Administrative law — Review applications — Order 33 r259 — Eight-week time limit — Condonation must precede review; Urgent procedure — necessity to prove irreparable prejudice; Costs — attorney-and-client scale; de bonis propriis not awarded against inexperienced counsel
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30 November 2011 |
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Municipal-consent absence and failure to lodge claim before estate winding-up barred plaintiff; unassisted minors could not be sued.
Property/contract law – sale of municipal land – municipal written consent to cession/transfer required; Succession law – lodging claims before winding-up (s45(3) Administration of Estates Act) bars late claims; Civil procedure – minors must be sued with guardian assistance; Plea in bar and exception properly dispose of claims lacking requisite consent or compliance.
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30 November 2011 |
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Conviction for corruptly releasing a wanted suspect upheld; custodial sentence reduced to a suspended term due to mitigation and delay.
Criminal law – corruption by public officer – power to arrest for offences committed outside Zimbabwe (s25(2)(e) Criminal Procedure and Evidence Act) – credibility findings of trial court – appellate restraint – sentencing: credit for pre-trial incarceration and mitigation; substitution by suspended sentence due to lapse of time.
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30 November 2011 |
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Court granted provisional stay of execution where a material amendment to the claim lacked service and proof of grant, affecting validity of default judgment.
Civil procedure — stay of execution pending rescission; default judgment obtained on unopposed roll; material amendment to claim; service of notice of amendment; change of claim amount and currency; failure to prove amendment granted; relevance of settlement discussions
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23 November 2011 |
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Denial of applicant's right to call defence witnesses in police inquiry breached natural justice, nullifying dismissal and requiring rehearing.
Administrative law – Police disciplinary inquiry – Natural justice – Right to call witnesses (s18(3)(e) Constitution) – Tribunal’s refusal to hear defence witnesses vitiates proceedings – Remittal for rehearing
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23 November 2011 |
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Court reduced custodial sentence for assault to a fine, emphasizing guilty plea, first offender status, and inadequate sentencing reasons.
Criminal law – Assault (s 89) – Sentence – Guilty plea and first offender status as mitigatory factors – Inadequate reasons by sentencing court – Substitution of custodial sentence with fine.
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23 November 2011 |
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A properly canvassed guilty plea was voluntary; conviction upheld and sentence within magistrate's discretion.
Criminal law – Guilty pleas – Section 271(2)(b) CPA – voluntariness and genuineness of plea – armed robbery – sentencing discretion – aggravating factors (knife-point, common purpose, removal and stripping of vehicle) – mitigation (youth).
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23 November 2011 |
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Convictions upheld; sentence and forfeiture set aside for not complying with section 10 statutory limits, matter remitted for resentencing.
Criminal law — Sentencing — Excessive sentence — Section 10 Copper Control Act caps punishment at level eight fine or imprisonment not exceeding two years; forfeiture — recovered property belonging to utility company should be returned, not forfeited to State.
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23 November 2011 |
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Renewed bail application refused: no fresh facts and real risk of witness interference persisted.
Criminal procedure — Bail — Renewed bail application after refusal — Requirement of fresh facts per S v Aitken — Passage of time as possible fresh fact — Witness interference and risk of abscondment.
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23 November 2011 |
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Appeal against sentence for theft dismissed; breach of trust and cross-border removal were decisive aggravating factors.
Criminal law – Theft – Sentence – Mitigatory factors (first offender, plea of guilty, youth) recognised but outweighed by aggravating features (breach of trust, hiring vehicle and cross-border removal of stolen goods, fortuitous recovery) – No misdirection by trial court.
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23 November 2011 |
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Conviction under common law housebreaking was improper; must charge unlawful entry under section 131 and retrial is ordered.
Criminal law — Section 131 Criminal Law (Codification and Reform) Act 2004 — unlawful entry into premises (replacement of common law housebreaking) — proper charging (unlawful entry and theft as separate counts) — sentencing considerations under s131(2) — conviction set aside and retrial ordered.
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22 November 2011 |
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Court accepted Attorney General's s35 concession, found the rape conviction unsafe and quashed conviction, setting aside sentence.
Criminal appeal; s35 High Court Act — Attorney General concession; unsafe conviction; appeal in chambers; conviction quashed and sentence set aside.
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16 November 2011 |
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Accused acquitted of murder but convicted of culpable homicide under joint liability; sentenced to 7 years (3 suspended).
Criminal law — Murder v culpable homicide; joint enterprise/association (s196 Criminal Law Code) — liability of co-perpetrator; evidential assessment and credibility; vigilante justice and sentencing.
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14 November 2011 |
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Whether documentary and witness evidence proved the respondent’s parentage and entitlement to a share of the deceased’s house.
Succession/property dispute – entitlement to share in deceased’s house – proof of parentage by long birth certificate, citizenship registration and identity card – corroborative witness testimony – credibility upheld on appeal – costs: in forma pauperis, no order as to costs
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9 November 2011 |
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Appeal allowed: conviction unsafe due to inadequate evidence and a fatal incomplete trial record.
Criminal law – theft – insufficiency and contradictions in evidence – relevance of gate pass and absence of documented company policy – procedural irregularity due to incomplete trial record – fair trial concerns.
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9 November 2011 |
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Appellate court upheld custodial sentence for serious assault causing skull fracture; sentencing discretion not disturbed.
Criminal law – Assault (s89(1)(a)) – sentencing – factors: victim’s age/physical condition, degree of force, weapon used, intention – guilty plea and mitigation weighed against aggravating features – appellate interference with sentencing discretion.
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9 November 2011 |
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Appeal against mandatory sentence for unlicensed driving of heavy vehicle dismissed for lack of special reasons.
Road Traffic Act – driving heavy vehicle without appropriate licence – mandatory minimum sentence – concept and scope of ‘special reasons’ in sentencing – inquiry must examine offender and offence – mistake of law by driver unreasonable – appeal dismissed.
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9 November 2011 |
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Messenger of court’s seizure and slaughter of third party’s heifer constituted stock theft; mandatory nine-year minimum sentence upheld and referral refused.
Criminal law – Stock theft (s114 Criminal Law Code) – Elements of taking and intention – Messenger of court acting beyond authority – Claim of right rejected; Sentencing – Mandatory minimum nine years for bovine/equine theft; restitution orders and competence under s368(1) Criminal Procedure and Evidence Act; Constitutional challenge to mandatory sentence – referral under s24(2) refused as frivolous/vexatious.
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9 November 2011 |
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Summary judgment granted where respondents failed to disclose a bona fide defence to a bank’s loan claim; secured properties declared specially executable.
Civil procedure – Summary judgment – Requirement to disclose bona fide defence with material facts; Banking and finance – enforcement of facility agreements – interest charged in accordance with facility terms; Contractual Penalties Act – challenge to interest as punitive; Security – suretyship and special execution of mortgaged properties; Costs – attorney-and-client costs and collection commission
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2 November 2011 |
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Summary judgment granted where opposing affidavit failed to disclose a bona fide defence; mortgaged property declared specially executable.
Civil procedure — Summary judgment — Requirement to disclose a bona fide defence — Defendant’s affidavit must set out material facts with sufficient clarity; bald, vague or sketchy averments insufficient
Company representation — Corporate deponent’s authority — Director’s affidavit cannot represent other companies without written authority
Mortgage — Declaration of immovable property specially executable; judgment for principal, interest and attorney-and-client costs
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2 November 2011 |
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Applicant failed to exhaust domestic remedies; Labour Court had exclusive jurisdiction, so High Court application dismissed and provisional order discharged.
Labour law — Jurisdiction — Exclusive jurisdiction of Labour Court under s89(6) — Exhaustion of domestic remedies — Appeal under employer’s code of conduct — Occupational right to employer housing linked to employment contract
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2 November 2011 |
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Respondent’s indirect domestic contributions justified an equal division of the matrimonial home under section 7(4) of the Matrimonial Causes Act.
Matrimonial property – Division of matrimonial home – Customary marriage – Section 7(4) Matrimonial Causes Act – Direct and indirect contributions – Domestic work and caring duties as indirect contribution – Equal sharing and buy‑out or sale option
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2 November 2011 |
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A wife’s personal rights in her husband’s property do not bind an innocent purchaser absent proof of collusion; provisional order dismissed with costs.
Property law – spouse’s personal rights in husband’s property – do not bind innocent third‑party purchasers without notice; proof of collusion required to defeat purchaser’s title; provisional interdict discharged where applicant fails to prosecute and no collusion is alleged
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2 November 2011 |
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Whether circumstantial evidence, identification and confirmed confessions establish murder with actual intent by the accused.
Criminal law — Murder — Circumstantial evidence and Blom test; Identification — reliability despite parade defects; Warned and cautioned statements — s113 confirmation and admissibility; Ligature strangulation — proof of dolus; Common purpose; Sentence — death.
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2 November 2011 |
| October 2011 |
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Divorce granted; child custody to plaintiff; assets apportioned under s7, including lifting the corporate veil to award company-related value.
Divorce — irretrievable breakdown; custody and access; property division under Matrimonial Causes Act s7; treatment of improvements and farm stock; lifting corporate veil to effect equitable distribution of company-held assets.
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26 October 2011 |
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Rescission under r449(1)(a) refused: judgment not erroneously granted and proceedings were not lis pendens.
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26 October 2011 |
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Accused convicted of intentional murder of his child; late fabricated defence rejected; sentenced to 30 years imprisonment.
Criminal law – Murder of a child – Evidence: post‑mortem findings (manual strangulation, traumatic liver rupture, old rib fractures) – Late fabricated defence – Prior child abuse indicators – Extenuating circumstances (familial psychological pressure) – Sentence: 30 years imprisonment.
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26 October 2011 |
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Appeal against sentence for rape of a three-year-old dismissed; sentence upheld due to age, breach of trust and transmission of syphilis.
Criminal law – Rape – Sentencing under s65(1) and (2) – Factors: victim's age, offender's position of trust, transmission of STI – Appellate interference only for misdirection or manifestly excessive sentence.
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26 October 2011 |
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Identification parade conducted unfairly and identification evidence unreliable, rendering the conviction unsafe.
Criminal law – Identification evidence – Identification parade fairness and procedure – Parade conducted by investigating officers – Failure to call parade attendants – Distinctive physical feature and prior sighting at police station cast doubt on identification – Conviction unsafe.
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26 October 2011 |
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A Deputy Sheriff must institute interpleader proceedings when ownership of attached property is disputed; failure may justify a stay of execution.
Civil procedure – execution – attachment and sale in execution of movable property – interpleader procedure – duty of Deputy Sheriff as officer of the court to file interpleader summons when ownership is disputed – stay of execution to enable claimant to prove ownership
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19 October 2011 |
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Default judgment set aside as it relied on a non-existent appeal; mining decision remitted after surveyor recanted.
Rescission of default judgment – Rule 63(2) good and sufficient cause; Mines and Minerals Act s361 – appeal lies to High Court; administrative decision set aside where based on unreliable/recanted survey report; remittal for fresh survey by unbiased surveyor; costs to lie where they fall
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19 October 2011 |
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High Court lacks jurisdiction to review magistrate's refusal to refer a section 24(2) constitutional matter to the Supreme Court.
Constitutional procedure — section 24(2) referrals to the Supreme Court — jurisdiction of High Court to review magistrate's refusal — magistrate's gatekeeping role re frivolous or vexatious matters — absence of written law under section 24(9)
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19 October 2011 |
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Application for specific performance dismissed for disputed facts, lack of corporate authorisation and contravention of subdivision permit rules.
Civil procedure — motion proceedings vs trial where material disputes of fact exist; Corporate authority — requirement for board/shareholder resolutions for disposal of company assets (Companies Act ss 138, 183); Regional and Town Planning Act s39(1)(b) — agreements affecting subdivision void without prior permit
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19 October 2011 |
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Section 39(2) construed as directory due to fiscal/public convenience; court ordered gazetting of by-elections within 14 days.
Electoral law – s39(2) Electoral Act – interpretation of "shall" – peremptory vs directory; judicial discretion to order gazetting of by-elections; public convenience and fiscal constraints; requirement for affidavit evidence about State funding
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12 October 2011 |
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Challenge to disciplinary conviction based on credibility findings was not reviewable; remedy lies in appeal; application dismissed.
Administrative/judicial review — Police disciplinary appeal — Credibility findings are for trial court — Review confined to absence of jurisdiction, bias, or gross irregularity — Appeal vs review
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12 October 2011 |
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Rape convictions reduced to indecent assault where child testimony and medical evidence failed to establish penetration.
Criminal law — sexual offences against children — reliability and probing of child testimony; requirement for proper medical affidavit/oral evidence (s278); competent verdicts under s275 and Fourth Schedule; indecent assault on a young person (s70); substitution of convictions and sentence reduction.
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12 October 2011 |
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Written acknowledgements of debt are enforceable; non-filing of heads bars respondent and attracts attorney-and-client costs.
Civil procedure — failure to file heads — rule 238(2b) barring respondent; Evidence — written acknowledgements of debt as binding admissions; Postponement — counsel’s leave not a sufficient reason to adjourn; Costs — attorney-and-client costs for abuse of process
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6 October 2011 |
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Court upheld magistrate's decision prioritizing the children's welfare and discharging child maintenance in favour of the respondent's custodial care.
Family law – Custody – Best interests of the child – Repeated surrender of children to respondent – Maintenance – Variation/stoppage where children reside with respondent – Appellate review limited to irrationality or misdirection
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5 October 2011 |
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Sentencing without ascertaining value of forfeited property is invalid; conviction confirmed and matter remitted for re‑sentencing.
Criminal law — Sentencing — Forfeiture of property — Necessity to ascertain value of seized property prior to sentencing; review — sentence set aside for miscarriage of justice; conviction confirmed despite sentencing irregularity.
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5 October 2011 |