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Citation
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Judgment date
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| December 2006 |
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A notice of appeal failing to state the relief sought is incurably defective and leads to the appeal being struck off the roll.
Civil procedure – Appeal – Notice of appeal must state exact relief sought – Defective notice of appeal is incurably bad and cannot be validated by later grounds or heads – Proper remedy is application for condonation and filing a proper notice – Litigant bears consequences of attorney’s negligence.
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31 December 2006 |
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Court grants divorce, awards mother custody and relocation rights, finds father hid assets, orders specific asset division and costs.
Divorce — Custody: sole custody to mother where parental acrimony, lack of trust and manipulation make joint custody impracticable — Expert psychological reports influential; child welfare paramount. Removal/relocation: mother permitted permanent removal of children to UK after specified date. Matrimonial assets: court requires full and frank disclosure; adverse inference for evasive conduct; court will not abrogate jurisdiction to foreign courts — allocation of specified properties and proceeds. Maintenance and interim arrangements regulated by consent order; costs including expert fees awarded to successful party
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19 December 2006 |
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Review of taxation dismissed: attorney authorised; Taxing Officer not clearly wrong; application dismissed with costs.
Civil procedure — Review of taxation — Rule 314 governs taxation reviews; Rule 257 not applicable — Authority of legal practitioner to depose on behalf of litigant — Standard for interfering with Taxing Officer (gross unreasonableness/clearly wrong) — Costs consequent to postponement — Discretion on higher scale and de bonis propriis costs.
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19 December 2006 |
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Specific performance refused because payment abroad breached exchange control; provisional liquidation granted for just and equitable deadlock.
Exchange control – contract requiring payment abroad – illegality and unenforceability; Contract performance – mora ex persona and requirement of demand before repudiation; Specific performance – refusal where contract illegal; Companies – provisional winding-up on just and equitable ground (deadlock/mismanagement); Recusal application – prior arbitrator acting as counsel and conflict of interest
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5 December 2006 |
| November 2006 |
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Court granted leave to execute pending appeal, finding the Deputy Sheriff erred and the respondent’s appeal lacked prospects.
Civil procedure – Execution pending appeal – Leave to execute pending appeal – Discretionary equitable remedy – Factors include prospects of success, irreparable harm and balance of convenience (Tranos Toziva test); Sheriff’s duties – Section 20(1) High Court Act – duty to execute writs; improper halting of execution by Sheriff; appeal frivolous and lacking prospects
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30 November 2006 |
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The applicant’s conviction under UK institute bye‑laws was set aside because those rules are not applicable domestically.
Professional discipline — applicability of foreign institute’s Charter and Bye‑laws — constituent bodies under Public Accountants and Auditors Act — ministerial approval and gazetting of by‑laws — invalidity and nullity of proceedings — court entitled to raise applicability mero motu
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29 November 2006 |
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An article alleging misconduct of a public figure was defamatory; privilege and justification failed due to reckless, unverified publication.
Defamation — defamatory meaning; public-figure reporting; privilege — limits and abuse (reckless publication, failure to verify unsigned minutes, omission of comment); justification — burden to prove substantial truth and public benefit; damages assessed with regard to comparable awards and currency revaluation
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29 November 2006 |
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Maintenance assessed by earning capacity where resignation was a ploy to avoid obligations; father ordered to pay $150,000 per child.
Family law – Divorce – Maintenance – Resignation to avoid maintenance – Court may assess maintenance by reference to earning capacity rather than reduced actual earnings – Application of share-allocation guideline (Gwachiwa/Beswick) – Custody and ancillary matters regulated by recorded settlement.
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21 November 2006 |
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Appeal allowed; eviction set aside due to material factual disputes, questionable Certificate of Authority, and need for oral evidence on tenancy.
Procedure — eviction proceedings — application vs summons where material disputes of fact; Estates — Certificate of Authority validity and Master’s jurisdiction; Review — High Court’s power to review patent irregularities on appeal; Tenancy — lease under power of attorney and statutory tenancy on co-owner’s death; Joint ownership and entitlement to occupation.
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14 November 2006 |
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Whether a magistrate may sentence under s334(7) when the trial magistrate is not truly "absent"; held improperly assumed jurisdiction.
Criminal procedure – section 334(7) – assumption of sentencing jurisdiction – meaning of "in the absence of the magistrate who convicted the offender" – assessment by time, space and circumstances – need to consider recorded evidence and opportunity to address in mitigation – jurisdictional defect remedied by setting aside sentence and remitting for re-sentencing.
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14 November 2006 |
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Prior judgment ordering transfer subject to interest precludes later cancellation; res judicata upheld, claim dismissed.
Res judicata – special plea in abatement – prior judgment ordering transfer subject to interest – election to abide by contract – exception timing and procedural irregularity.
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14 November 2006 |
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Taxing officer’s allowance of counsel’s fees as a reasonable disbursement upheld; terminology repeal did not remove tariff distinction.
Taxation of costs — disbursements to counsel instructed by a legal practitioner — Order 38 Rule 308 — taxing officer’s discretion and review under Rule 314 — repeal of "advocate/attorney" terminology does not abolish tariff distinction — High Court (Fees and Allowances) (Amendment) Rules 2003 para 8
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7 November 2006 |
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Adulterous partner found to have known husband was married; plaintiff awarded damages for contumelia and partial loss of consortium.
Adultery damages – knowledge of marital status – ‘diligent ignorance’ – continuation of adulterous relationship after summons – loss of consortium and contumelia – assessment and quantum of damages
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7 November 2006 |
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Whether a provincial magistrate has jurisdiction to determine surviving-spouse status under the amended Administration of Estates Act.
Administration of Estates Act (Act No. 6 of 1997) – Part IIIA – repeal of section 68 – jurisdiction of provincial magistrate to determine intestate customary-law succession disputes withdrawn – Master’s powers and appealability of Master’s decisions – referral by executor – nullity of magistrate’s ruling – condonation refused where Master not a party
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7 November 2006 |
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Mandatory minimum sentencing under the Stock Theft Act requires explanation and recording of special circumstances; failure requires resentencing.
Criminal law – Stock Theft Act (Chapter 9:18) – mandatory sentencing under s12 – requirement to explain and record "special circumstances" – particulars of offence in charge sheet – separation of trials and proper record-keeping.
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7 November 2006 |
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Property acquired during the marriage found jointly owned; husband awarded half the monetary value following valuation.
Matrimonial property — Division of matrimonial assets — Credibility of competing accounts of contribution — Joint acquisition found — Equal division and valuation procedure ordered.
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7 November 2006 |
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The applicant lacked locus standi to seek a VAT-exemption declarator on behalf of stockbrokers; application dismissed with costs.
Administrative law – locus standi – standing to sue on behalf of others – public interest v private interest litigation – requirement of direct and substantial legal interest; Tax law – VAT exemption claim by stockbrokers – representative application by non-members.
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7 November 2006 |
| October 2006 |
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Driver’s negligence attracts vicarious liability; plaintiff’s delay in repairs limited recoverable damages despite defendant failing to prove contributory negligence.
Motor vehicle collision — vicarious liability for driver’s negligence — contributory negligence (onus on defendant) — mitigation of loss; delay in repairs; quantification of damages; repair estimates and evidence of spare parts availability
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31 October 2006 |
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Residuary beneficiaries lacked locus standi to vary the will; the trust remains capable of formation and disputed shares require further evidence.
Wills — locus standi of residuary beneficiaries to seek variation; Trust formation — testamentary trustee, executor may act as trustee; Administration of estates — recourse to the Master and statutory remedies; Property disputes — ownership of shares requires evidential proof, Companies Act presumption not determinative here
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31 October 2006 |
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An acknowledgement of debt does not waive the in duplum rule absent evidence of a genuine compromise or informed waiver.
In duplum rule – acknowledgement of debt – compromise and waiver – whether an AOD displaces in duplum – interest capped at capital – default judgment
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31 October 2006 |
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Court dismisses challenge to will as unarguable, holding will revoked prior wills and no evidence of undue influence.
Succession — validity of will — alleged undue influence — long‑term pressure versus influence at execution — construction of revocation clause — Order 11 dismissal for frivolous or vexatious actions; burden on alleging party to prove undue influence.
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31 October 2006 |
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Urgency requires objective irretrievable prejudice; eviction applications must cite and afford hearing to actual occupiers.
Civil procedure — Urgent applications — objective test of urgency: need to act when matter cannot wait because delay causes irretrievable prejudice — distinction between interim protective relief and final relief — necessity to cite actual occupants in eviction proceedings
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30 October 2006 |
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Whether an oral agreement created a binding sale when parties disagreed on inclusion of tender boats and Reserve Bank clearance.
Contract formation — consensus ad idem; oral agreement; sale of vessel; inclusion of tender boats as essential term; Reserve Bank clearance as condition precedent; no unequivocal acceptance — absolution from instance
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24 October 2006 |
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Dispute over pledged shares falls within Debenture Trust Deed arbitration clause; proceedings stayed and referred to arbitration.
Arbitration clause; Debenture Trust Deed; definition of Security; pledge and appropriation of shares; material non‑joinder (liquidator); stay and referral to arbitration under Model Law Article 8(1)
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22 October 2006 |
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Payment to a seller's (unregistered) agent transfers ownership on delivery; unregistered agents hold funds as account-holder's money.
Property law — ownership of money — payment to agent effects transfer on delivery; unregistered estate agency — no trust account; tracing/commixtio of funds in bank account
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12 October 2006 |
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Failure to justify late filing of notice of opposition and heads of argument led to automatic bar and summary judgment in default.
Civil procedure – summary judgment – notice of opposition filed out of time – condonation – requirement of reasonable explanation and supporting affidavit from practitioner – prospects of success – lis pendens argument – late heads of argument – automatic bar – summary judgment granted in default.
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12 October 2006 |
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Applicant’s failure to show irreparable harm and to provide security for costs led to dismissal of the urgent application.
Forestry seizure of goods – urgent chamber application – urgency requires irreparable prejudice – peregrinus/security for costs – review procedure (Order 33) and proper citation of Attorney-General/Minister.
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11 October 2006 |
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Failure to give reasons for a maintenance decision vitiates the order and warrants remittal for a fresh inquiry.
Judicial duty to give reasons — absence of reasons vitiates judgment and frustrates appeal — maintenance proceedings — remittal for fresh inquiry under s8 Maintenance Act — procedural fairness; effect of inflation on remedy
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10 October 2006 |
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Failure to give reasons for a maintenance decision vitiates the order and warrants a fresh s8 inquiry given changed circumstances.
Civil procedure — Maintenance variation — Requirement that courts give reasons for decisions — Absence of reasons vitiates order — Remedy: set aside and remit for fresh inquiry under s 8 Maintenance Act — Effect of inflation on maintenance orders — Costs where decisive point raised mero motu
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10 October 2006 |
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Parol evidence cannot introduce an oral suspensive condition; cancellation without demand was invalid; specific performance ordered.
Contract for sale of land; parol evidence rule; oral suspensive condition precedent inadmissible; seller must put purchaser in mora before cancellation; specific performance and Deputy Sheriff authorised to sign transfers
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9 October 2006 |
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Acceptance of a severance package while seconded amounted to implied waiver of right to reinstatement and arrears.
Labour law – secondment – employee remains employed by original employer; retrenchment and severance – acceptance of severance as implied waiver of employment rights; waiver by conduct; unjust enrichment.
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4 October 2006 |
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A s7 matrimonial redistribution claim is a personal right and does not survive to be enforced by a deceased spouse’s executor.
Succession – appointment and removal of executor dative – administrative role of the Master; Matrimonial Causes Act s7 – redistribution claims are personal (in personam) not real rights – non‑transmissibility after litis contestatio; validity of marriage – customary marriage status and Registrar of Marriages’ investigatory role
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3 October 2006 |
| September 2006 |
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Accused's confirmed confession, eyewitness and medical evidence established intent; self-defence rejected and convicted of murder with actual intent.
Murder – mens rea inferred from single wound to a vital part of the body; Self-defence – requirements of unlawfulness, imminence, necessity and proportionality; Admissibility and evidential weight of a confirmed warned and cautioned statement; Post-mortem evidence – blunt force trauma to skull; Eyewitness evidence corroboration.
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30 September 2006 |
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An unregistered customary-law spouse is a statutory spouse for estate and pension purposes; both customary and civil wives share entitlement.
Succession and pensions – recognition of unregistered customary-law marriages for estate purposes – Administration of Estates Amendment Act No.6 of 1997 – effect of subsequent civil marriage – pension fund rules versus statutory recognition of customary spouses
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19 September 2006 |
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A lawyer’s letter accusing a senior military officer of abusing office was held maliciously defamatory; plaintiff awarded damages, counterclaim dismissed.
Defamation – publication by lawyer’s letter – imputations of abuse of office and misuse of military personnel – malice – credibility of witnesses – assessment of damages for defamation of senior state/military official.
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19 September 2006 |
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Creditor failed to prove the individual respondent committed an act of insolvency or that sequestration would benefit creditors.
Insolvency law – sequestration – act of insolvency (s11(f)) – definition of ‘debtor’ – corporate personality and veil-piercing – onus on creditor to prove advantage to creditors for sequestration – insufficiency of payments-to-company evidence.
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12 September 2006 |
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Sequestration dismissed: applicant failed to prove the respondent was a debtor or committed an act of insolvency; corporate payments not attributed to him.
Insolvency — sequestration — meaning of "debtor" under Insolvency Act — s11(f) act of insolvency (suspension/notice) — advantage to creditors (s13) — piercing corporate veil — attribution of company payments to individual debtor.
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12 September 2006 |
| August 2006 |
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Loan held payable in US dollars; ZW$ tender did not discharge debt; costs awarded on ordinary scale.
Foreign-currency judgments — implied currency of payment; Tender in local currency — insufficient without creditor's agreement; Official versus parallel exchange rate — unfair enrichment concern; Costs — ordinary scale where clause not specific.
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23 August 2006 |
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An employer is not vicariously liable where an employee carried unauthorised passengers in breach of a prohibition limiting his employment sphere.
Vicarious liability — unauthorised passengers — prohibition limiting sphere of employment — frolic of his own — test of degree — employer not liable
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22 August 2006 |
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Spousal maintenance and a life usufruct awarded where matrimonial property largely excluded due to prior inheritance and limited marital contribution.
Divorce – spousal maintenance – assessment of quantum and duration (until death or remarriage) – matrimonial property – exclusion of inherited or pre-marriage shares under s7(3) Matrimonial Causes Act – life usufruct as alternative relief – res judicata and prior magistrates’ maintenance application.
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22 August 2006 |
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An inadequately pleaded review alleging bias and gross irregularity failed where the magistrate's credibility findings were reasonable.
Criminal procedure – Review under High Court Act ss 26–27 – adequacy of grounds pleaded – bias and gross irregularity – credibility findings – handwriting expert evidence not required where signature undisputed – review inappropriate where appeal available.
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15 August 2006 |
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Applicant granted spoliation relief restoring possession of employer-issued vehicle wrongfully repossessed by respondent.
Spoliation — unlawful dispossession — employer's self-help — restoration of status quo ante — peaceful possession and forcible deprivation — interim possession order
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8 August 2006 |
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"Lawful issue" in a mutual will includes children born out of wedlock if recognized by law and by the testator.
Succession — mutual will — interpretation of "lawful issue" — whether term includes extra‑marital children recognised by law and the testator — armchair rule of construction — beneficiaries to benefit equally.
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8 August 2006 |
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Delay in psychiatric examination attributed to accused; bail refused due to serious charges and risk to public safety.
Criminal procedure – bail – refusal where accused charged with multiple murders and claims of diminished responsibility; delay in psychiatric examination – attribution of delay to accused; right to a fair hearing within reasonable time – accused’s responsibility to pursue special defence evidence; no court order for psychiatrist where registrar’s letter merely requested mental examination.
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1 August 2006 |
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Where arbitration cannot produce an enforceable cancellation of registered title, the High Court may hear the dispute despite an arbitration clause.
Arbitration clause – Jurisdiction of High Court; Deeds Registry Act s8(1) – cancellation of registered transfer only by court order; Arbitration Act (Act 6 of 1996) Article 35 – enforcement of awards (no conversion to court judgment); unenforceability of arbitral awards to effect cancellation of registered title; court may hear matter where arbitration would be futile.
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1 August 2006 |
| July 2006 |
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Barring for failure to plead requires serving Form No.9 and filing its endorsed copy; the bar is not automatic and defective procedure defeats default judgment.
Civil procedure – barring for failure to plead – Order 12 Rules 80–81 and Form No.9 requirements – bar not automatic; distinction from automatic bar for failure to enter appearance (Rules 17 and 50) – effect of defective endorsement and late filing on entitlement to default judgment
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27 July 2006 |
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Non-compliance with S.I.371/85 rendered the applicant's suspension a nullity and entitled him to back pay.
Labour law – Suspension without pay – Statutory Instrument 371/85 s3(1) – requirement to apply 'forthwith' to Labour Officer – failure renders suspension nullity; Repeal by S.I.130/2003 – inability to cure; Procedural bar – late filing of opposing papers.
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25 July 2006 |
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Divorce granted; court held war-compensation-funded house was matrimonial property and distributed the two homes equitably.
Family law – Divorce – irretrievable breakdown – Matrimonial Causes Act s7 – distribution of matrimonial property – exclusion of assets of particular sentimental value – contributions (financial and non-financial) to acquisition and improvement – equitable apportionment of immovable property.
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25 July 2006 |
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Exemption clauses do not shield the defendant from liability for gross negligence; plaintiff awarded inflated replacement value.
Contract law – security services – guard negligence and supervisory failures – fundamental breach/gross negligence – exclusion clauses inapplicable; Damages – replacement value in hyperinflation; mitigation of loss.
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25 July 2006 |
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Applicant failed to prove supplier-export under VAT Act; Commissioner wrongly cited; application dismissed with costs.
Tax law – VAT zero-rating of exports – meaning of “exported” (consigned/delivered by supplier to address in export country) – onus on supplier to prove export status; Civil procedure – correct party to sue – Zimbabwe Revenue Authority v Commissioner General; Administrative law – estoppel against State officials; Delegated legislation – regulations ultra vires and non‑retrospective; Pleading – new cause of action cannot be raised in heads of argument.
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25 July 2006 |