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Citation
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Judgment date
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| November 2016 |
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Bail pending appeal refused where appeal prospects were poor and there was a real risk of absconding.
Bail pending appeal — prospects of success on appeal; risk of absconding; sentencing discretion — no misdirection; presumption of innocence not operative for bail consideration.
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29 November 2016 |
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Circumstantial evidence of flight and concealment established the appellant’s knowledge of transporting stolen meat; mandatory nine-year sentence affirmed.
Criminal law – Stock theft – Circumstantial evidence – R v Blom test – Flight and concealment as indicia of knowledge – Mandatory minimum sentence s114(2)(b).
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29 November 2016 |
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An immediate six-month prison term for a brief suffocating assault was excessive and substituted with a small fine or short default imprisonment.
Criminal law — Sentencing — Domestic violence (physical abuse) — Excessive custodial sentence — Appeal/review court substituted fine or short default imprisonment — Relevant precedents (Mugwenhi; Chikovero).
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29 November 2016 |
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Whether excessive corporal punishment causing a child's death amounted to culpable homicide and what sentence was appropriate.
Criminal law – Culpable homicide v. murder – Death from repeated corporal punishment – Child abuse and parental/chastisement boundaries – Sentencing: mitigation (youth, remorse, remand) versus aggravation (extreme violence, recklessness).
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27 November 2016 |
| October 2016 |
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An applicant may not rescind a long-standing default judgment to obtain substantive relief against third parties without timely joinder.
Rescission of judgment – Order 49 Rule 449 – application for rescission cannot be used to obtain substantive relief against third parties – double sale doctrine (first in time stronger) – retrospective interest not affected by earlier judgment – requirement of timeliness and finality in litigation.
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13 October 2016 |
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Applicant failed to prove ownership of fixtures; interdict against liquidator dismissed for lack of clear or prima facie right.
Company law – liquidation – interdict pendente lite – dispute over ownership of fixtures and fittings on leased premises – Rule 232 (notice) – s213 Companies Act (leave to sue company in liquidation) – parol evidence rule – balance of convenience.
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13 October 2016 |
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Applicants' urgent interdict dismissed: defective urgency certificate, material disputes of fact, and failure to establish prima facie right.
Civil procedure — Urgent applications — Certificate of urgency must disclose when urgency arose; unreasonable delay defeats urgency — Motion proceedings inappropriate where material disputes of fact exist — Interim interdict — necessity to show prima facie right, injury and balance of convenience.
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6 October 2016 |
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Mass termination to replace indefinite contracts with performance-based agreements was an unlawful retrenchment; applicants reinstated or to be compensated.
Labour law — retrenchment — mass termination and replacement with performance-based contracts — unlawful circumvention of retrenchment regulations; declaratory relief; repudiation of contract.
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6 October 2016 |
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Court permitted joinder of a party with substantial interest by departing from procedural rule under Rule 4C, ordering co-joinder.
Civil procedure — Joinder under Order 87(2)(b) — Rule 87(3) procedural requirements vs Rule 4C discretion to depart — substantial interest required for joinder — interlocutory interdict and appeal without leave.
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6 October 2016 |
| September 2016 |
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Summary judgment for municipal rates where respondent’s vague defences failed and payments interrupted prescription.
Municipal rates and water charges – summary judgment – bona fide defence – High Court Rule 67 (filing further affidavits) – Prescription Act s18(1): interruption by part payment and acknowledgement of debt.
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29 September 2016 |
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Whether execution of a default judgment should be stayed pending resolution of applications to uplift an automatic bar.
Civil procedure — Stay of execution — Automatic bar (Rule 83) — Upliftment of bar (Rule 84) — Prima facie right, irreparable harm, balance of convenience — Default judgment obtained after bar — Interim relief.
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29 September 2016 |
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Denial of access to disciplinary trial record breached the applicant’s right to a fair hearing; appeal set aside and record ordered provided.
Administrative law; audi alteram partem; Police disciplinary proceedings; right of accused to record of proceedings; section 35(1) Police Act; procedural fairness; review; stay of board of inquiry.
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29 September 2016 |
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A breached suspended sentence must be activated; courts cannot further suspend it except under s358 procedures.
Criminal procedure – suspension of sentence – breach of condition – s358 Criminal Procedure and Evidence Act – bringing suspended sentence into effect – limits on further suspension.
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29 September 2016 |
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Confession corroborated by IMEI tracing and recovered property led to conviction for murder with constructive intent and a 20-year sentence.
Criminal law – Murder – Confession – Admissibility and corroboration – Circumstantial evidence and IMEI cellphone-tracing – Indications and recovery of property – Murder with constructive intent (dolus eventualis) – Sentencing: aggravating circumstances (robbery; victim pregnant) and youth mitigation.
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23 September 2016 |
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Applicants failed to prove a prima facie lease/right of occupation; sub-tenants’ rights were extinguished and alternative s39 remedy existed.
Interim interdict — prima facie right — sub-tenants’ rights subordinate to head-tenant — eviction under Magistrates’ Court order — alternative remedy: s39 Magistrates’ Court Act (rescission/stay of execution) — statutory tenant status (Commercial Rent Regulations).
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22 September 2016 |
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Interim interdict granted preventing removal of the applicant’s cattle pending challenge to enforcement of an earlier eviction order.
Urgent interim interdict — enforcement of prior eviction judgment — compliance with earlier order — dirty hands doctrine — locus standi of co‑operative’s representative — adequacy of alternative remedies (damages) — balance of convenience.
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15 September 2016 |
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Interim stay granted on sale in execution of deceased’s property; costs against curator denied absent proof of misconduct.
Execution and sale in execution – sale of immovable property registered in deceased’s name – administration of estate – curator bonis – interim stay pending confirmation – costs de bonis – discretion under r 240 – necessity of proof of dishonest or discreditable conduct before adverse costs order.
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15 September 2016 |
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Re-entry onto land after lawful eviction constitutes contempt; alleged pegging did not create a bona fide dispute.
Contempt of court – re-occupation after lawful eviction – enforcement of consent eviction order – boundary pegging by Ministry of Lands – disputes of fact in motion proceedings – duty to obey court orders.
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15 September 2016 |
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Vague, unparticularised claims of duress do not defeat summary judgment based on a signed acknowledgement of debt.
Civil procedure — Summary judgment — Opposing affidavit must disclose a bona fide defence with sufficient particularity — Duress requires proof of imminent unavoidable threat — Caveat subscripto binds signatory.
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15 September 2016 |
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Child eyewitness and forensic evidence proved murder; court imposed life imprisonment despite aggravating factors.
Criminal law – Murder – Child eyewitness reliability and corroboration – Post‑mortem consistency with eyewitness account – Aggravating circumstances and sentencing discretion (death penalty vs life imprisonment).
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14 September 2016 |
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Applicant failed to establish urgency for a spoliation application; founding affidavit lacked disclosure and costs were awarded to respondent.
Urgent chamber applications — certificate of urgency must be premised on founding affidavit — founding affidavit must disclose urgency and dates; spoliation — applicant must show peaceful possession and wrongful dispossession, but merits not reached where urgency and full disclosure absent; answering affidavit cannot cure defective founding affidavit in urgent proceedings.
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8 September 2016 |
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Interim interdict granted where sheriff confirmed sale despite improper service of confirmation notices under High Court rules.
Civil procedure – urgent interim interdict – sale in execution – confirmation of sheriff's sale – service of notices – High Court Rules 356 and 359 – domicilium and attempted service.
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1 September 2016 |
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An interim interdict cannot be granted to restore possession once the applicant’s property rights have already been taken away by eviction.
Civil procedure — Interim interdict — Requisites: prima facie right, irreparable harm, balance of convenience, absence of alternative remedy — Interim interdict not available for past invasions of rights — Eviction prior to hearing precludes restoration by interdict; executrix’s capacity and alleged mala fides raised but not determinative.
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1 September 2016 |
| July 2016 |
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Conviction set aside where State failed to rebut accused’s plausible ownership explanation and relied on uncalled witness' statements.
Criminal law — Possession of property reasonably suspected of being stolen (s125) — burden of proof — onus cannot be shifted to accused — inadmissibility/insufficiency of hearsay from uncalled material witness — conviction unsustainable where State fails to rebut a reasonably possible defence.
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7 July 2016 |
| June 2016 |
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Claimant trust failed to prove ownership of a seized vehicle; trustee lacked capacity and the vehicle was declared executable.
Civil procedure – interpleader (Order 30 R205A/Rule 207); burden on claimant to prove ownership; trusts and locus standi; trustee’s capacity to sue; registration book not proof of ownership; costs against unsuccessful claimant.
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23 June 2016 |
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Applicant’s eviction order confirmed; respondent held in contempt and fined for unlawfully re‑occupying property.
Civil procedure – enforcement of eviction – contempt of court for re‑entering after lawful eviction and dismissal of appeal – spoliation – sanctions (fine/default imprisonment) – sheriff and police assistance – legal practitioner misconduct/admonition.
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23 June 2016 |
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The Secretary lacked jurisdiction to cancel a mining registration on appeal; cancellation suspended pending review.
Mining law — Appeal from Mining Commissioner — s361 (appeal to High Court) — Secretary for Mines lacks appellate jurisdiction — s341(2) administrative correction inapplicable — Cancellation of registration void — Interim suspension pending review.
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23 June 2016 |
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Delayed Prosecutor-General application for leave to appeal acquittal dismissed for lack of point of law and unreasonable delay.
Criminal law — Appeal against acquittal — s61 Magistrates' Court Act — leave to appeal — timeous filing and condonation — perverse acquittal standard — distinction between points of law and factual re-evaluation.
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23 June 2016 |
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Appellant's conviction for soliciting a bribe upheld: police trap lawful, evidence admissible, custodial sentence appropriate.
Criminal abuse of duty – Soliciting and receiving bribe – Police 'trap' – entrapment doctrine – admissibility of evidence – Constitution s68(1) administrative fairness and s70(3) exclusionary rule – sentence for public officer corruption.
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23 June 2016 |
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Where the prosecution discontinues after plea, the accused is entitled to acquittal; courts may not substitute uncharged offences without evidence.
Criminal procedure — prosecutor as dominus litis — court may not substitute an uncharged offence without evidence or lawful amendment — accused entitled to acquittal where prosecution discontinues after plea — improper leading questions by magistrate amounting to miscarriage of justice.
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23 June 2016 |
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Appeal against rape conviction dismissed: consent was vitiated by force and the complainant was found credible.
Criminal law – Rape – Consent vitiated by force and circumstances – Credibility assessment – Appellate review for misdirection.
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23 June 2016 |
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Conviction for rape upheld on medical and contemporaneous evidence; sentence reduced for trial court’s failure to consider mitigation.
Criminal law – Rape – Medical evidence corroborating forced penetration – Cautionary rule in sexual offences displaced – Sentencing misdirection for ignoring mitigation – Appeal court intervention to substitute sentence.
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23 June 2016 |
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An ex parte provisional spoliation order obtained by material falsehood and non-disclosure was discharged and punitive costs awarded.
Spoliation — urgent/ex parte relief — duty of full disclosure — material non-disclosure and falsehood — provisional/interim order left unfinalised — provisional order discharged — punitive costs (legal practitioner and client).
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23 June 2016 |
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High Court declines jurisdiction over chieftainship appointment disputes, which must be resolved by the President under section 283.
Constitutional law – section 283 – disputes over appointment, succession and removal of traditional leaders – presidential resolution on provincial assembly recommendations – jurisdiction of courts – reviewability of selection process vs. non-justiciability of presidential appointment – gender discrimination in customary succession.
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20 June 2016 |
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Summary judgment granted for municipal water and rates arrears where respondent's prior admission and vague defence failed to disclose a bona fide defence.
Summary judgment — municipal rates and services arrears — prior admission of liability and payment plan — opposing affidavit must disclose bona fide defence with particularity — mere challenge to quantum, request for particulars or audit insufficient to resist summary judgment — costs on attorney-and-client scale.
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16 June 2016 |
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Applicant granted urgent interim interdict restoring water supply after respondents unlawfully disconnected service in alleged pursuit of arrears.
Constitutional right to water; spoliation and self-help; interim interdict; urgency; authority’s duty to seek legal remedies for arrears rather than disconnect supply.
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16 June 2016 |
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Whether a superintendent with less than three years in rank lawfully had jurisdiction and whether the disciplinary hearing was procedurally fair.
Police disciplinary proceedings – jurisdiction of presiding officer under s34 Police Act – uncoded Police Rules versus statutory provision – alleged bias in disciplinary hearing – right to legal representation and procedural fairness.
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16 June 2016 |
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Magistrates' Courts lack jurisdiction to grant declaratory orders; such relief is vested in the High Court absent a constitutional rights claim.
Declaratory relief – Jurisdiction – Magistrates’ Court lacks power to grant declaratory orders – High Court Act s14 – Constitution s85(1) enforcement of fundamental rights – requirement to plead infringement of constitutional rights – Magistrates’ Court as creature of statute – monetary jurisdiction considerations.
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16 June 2016 |
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Refusal to sign renewal lease and breaches justified summary judgment, eviction and attorney‑and‑client costs.
Summary judgment; repudiation by refusal to sign renewal lease; statutory tenancy and arbitration clause; non‑waiver/non‑variation clause; breach of licence conditions; attorney‑and‑client costs.
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16 June 2016 |
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Contractual annuity obligations survive hyperinflation; plaintiff entitled to payment in functional currency (USD) and awarded USD 13,123.67.
Retirement annuity – hyperinflation and vis major – contractual performance not discharged by commercial/economic deterioration – payment in functional currency (USD) – use of historical RBZ conversion rates to quantify loss.
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16 June 2016 |
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Sentencing courts must consider fines and community service before imposing imprisonment for first offenders under s36(1) Immigration Act.
Immigration Act s36(1) – sentencing: where statute permits fine or imprisonment court must consider fine; community service inquiry required; first offender; guilty plea; sentencing misdirection.
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16 June 2016 |
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Conviction for a fatal road collision quashed where evidence was insufficient and the appellant entitled to the benefit of the doubt.
Criminal law – Road traffic accident – Sufficiency and credibility of eyewitness evidence – Standard of proof beyond reasonable doubt – Benefit of doubt – Conviction under s 49(b) Criminal Law (Codification and Reform) Act quashed where evidence unreliable.
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16 June 2016 |
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High Court set aside an arbitral award for lack of proper notice and remitted the dispute for re-arbitration.
Arbitration — default by absent party — arbitrator’s powers under Article 25; functus officio principle; Labour Court rescission limited to its own orders (s92C); High Court power under Article 34 to set aside awards for lack of notice or inability to present case; remittal for re-arbitration; costs — each party to bear own costs.
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16 June 2016 |
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Accused found not guilty by reason of insanity and remitted for treatment under the Mental Health Act.
Criminal law — Insanity/mental disorder — Seizural disorder causing episodic violence — Special verdict under Mental Health Act s29(2) — Not guilty by reason of insanity — Custody pending transfer to special institution for treatment
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14 June 2016 |
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A conviction based solely on uncorroborated accomplice evidence against the applicant is unsafe and must be set aside.
Criminal law — Accomplice evidence — Cautionary rule — Need for independent corroboration — A witness cannot corroborate himself — Misdirection vitiating conviction — Appeal upheld; conviction set aside and acquittal entered.
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13 June 2016 |
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Accused acquitted where self-defence was reasonably established and circumstantial evidence failed to exclude other inferences.
Criminal law – Murder – Self-defence (defence of person) – Requirements under section 253 – Circumstantial evidence – R v Blom test – Evidential value of exhibit produced in terms of section 314 – Forensic examination and identification of weapon.
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10 June 2016 |
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Winding up granted where equal shareholder-directors’ deadlock, fabricated share documents and dishonest conduct made liquidation just and equitable.
Company law — Winding up (s206(g)) — just and equitable ground established by director-shareholder deadlock and dishonest conduct; locus standi of contributory; fabricated share documents; punitive costs for abuse of process.
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9 June 2016 |
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Urgency not established for spoliation application where applicant knew of Assistant Master’s edict and failed to explain delay.
Practice—Urgent applications—spoliation—urgency must exist when need to act arises; unexplained delay defeats urgency (Kuvarega principle). Master of the High Court—edicts and reports as relevant guidance on estate disputes and possession pending appointment of executors. Procedure—duty of candour in certificate of urgency; court guided but not bound by Master’s report.
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9 June 2016 |
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Urgent interdict against police transfers refused for procedural non‑compliance, lack of prima facie right, and absence of irreparable harm.
Administrative law — interim interdict — requirements for urgency — employer prerogative to transfer police personnel — right to written reasons under s68 and Administrative Justice Act requires request — irreparable harm absent where transfers are challengeable and reversible.
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9 June 2016 |
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A convicted person may be admitted to bail pending an application to reinstate an appeal under Rule 22 and s123.
Criminal procedure – Bail pending application for reinstatement/leave to note fresh appeal – Rule 22(4) Supreme Court (Magistrates' Court) (Criminal Appeals) Rules – s123(1)(b)(iii) Criminal Procedure and Evidence Act – judge’s power to grant bail.
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9 June 2016 |