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Citation
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Judgment date
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| November 2004 |
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Court finds police assaulted detainee in custody; awards compensatory and punitive damages.
Police abuse of detainee – assault while in custody – credibility and corroboration of eyewitness testimony – inconsistencies in police records and testimony – damages for pain and suffering and punitive damages awarded
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23 November 2004 |
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Failure to provide particulars and consider written representations breached procedural fairness, rendering the retirement decision unlawful.
Public Service Regulations s18(4)(e)(ii) and s18(5) – requirement to give notice and consider written representations – procedural fairness and audi alteram partem; recall under foreign service contract – lawful recall; failure to supply particulars – denial of right to be heard; retirement set aside; reinstatement and back pay awarded
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23 November 2004 |
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Valuation contract held unenforceable because the plaintiff lacked a registered estate agent and contravened the Estate Agents Act.
Estate Agents Act s48(1)(b) – prohibition on unregistered persons or companies practicing as estate agents; definition of "practice as an estate agent" (s2) – valuation for sale; s52(3) exemption for quantity surveyors construed narrowly; s53(1) requirement for direct control by a registered estate agent; Rural District Councils Act s79(3) – professional services exemption to council-resolution requirement; illegality renders contract unenforceable
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23 November 2004 |
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Whether custodial sentences without option of fine or suspension for immigration offences constituted a gross irregularity.
Immigration Act offence; sentencing discretion; alternative of fine versus imprisonment; suspension for first offenders not automatic; national security as aggravating factor; review versus appeal (abuse of process)
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16 November 2004 |
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A judge voluntarily recused themself from a trial involving a judicial colleague due to the appearance of bias.
Judicial recusal – reasonable apprehension of bias – judge accused is a judicial colleague – appearance that justice must be seen to be done – voluntary recusal supported by precedent.
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15 November 2004 |
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Custody variation denied: applicant failed to prove transfer would be in the children's best interests despite custodian's surrender of physical custody.
Family law — Variation of custody — Custodian parent leaving children with grandparent — Temporary delegation vs permanent surrender — Onus in variation applications on changed circumstances: must show it is not in children's best interests to remain with custodian and that transfer to applicant would be in children's best interests — Affidavit by legal practitioner has limited probative value if custodian does not depose
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9 November 2004 |
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An employee covered by a registered Code may be validly dismissed on notice where no misconduct is found.
Employment law – Registered Code of Conduct – interplay with contractual notice clauses – termination on notice permitted where no misconduct established – exhaustion of internal remedies not required where no disciplinary decision communicated – Rule 257 compliance and condonation
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9 November 2004 |
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A debtor’s declaration of having no assets to an executing officer can constitute an act of insolvency under s 11(b).
Insolvency Act s 11(b) — debtor’s declaration of no assets to deputy sheriff constitutes act of insolvency; provisional sequestration properly granted; court discretion under s 15(1) to postpone confirmation where debtor subsequently pays judgment and deposits funds for costs; no costs de bonis propriis against creditor’s attorneys
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9 November 2004 |
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Appeal against sentence for premeditated armed bank robbery and firearm possession dismissed; sentence not shocking and within discretion.
Criminal law – Sentence – Armed robbery involving firearm and premeditation – Sentencing discretion – Youth and first‑offender plea as mitigatory factors – Appellate interference only where sentence induces sense of shock – Firearms Act sentencing (fine and suspended term) appropriate under amended law.
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9 November 2004 |
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Extended extraterritorial investigations and strengthened State case justified continued remand; bail was refused.
Bail — constitutional right to trial within reasonable time (ss 13(4), 18(2) Constitution) — section 116(1)(c)(ii) Criminal Procedure — extraterritorial investigations delaying trial — credibility of defence and flight risk — Exchange Control Act charges.
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7 November 2004 |
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A wife has only personal family-law remedies; she does not acquire proprietary rights in her husband’s sole-registered immovable property.
Property law v family law — wife’s rights to immovable property registered in husband’s sole name; registration prima facie title; wife’s remedies personal not proprietary; bona fide purchaser protected; call for reform of outdated common law
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2 November 2004 |
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Use of "VIMCO" on scouring powder infringed registered "VIM" and amounted to passing off; injunction and costs granted.
Trade marks Act s8(1)(a) – trade mark infringement; Passing off – goodwill and likelihood of confusion; Companies Act s24(13) – corporate name change not ordered; Continuing infringement and prescription; Delay not waiver/estoppel.
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2 November 2004 |