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Citation
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Judgment date
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| October 2010 |
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Children’s court lacked jurisdiction to appoint guardians where a natural parent may exist; such appointments are nullities and are set aside.
Guardianship of minors – Section 9 Guardianship of Minors Act – children’s court jurisdiction limited to minors with no natural guardian or tutor testamentary – High Court as upper guardian; requirement for written reasons in juvenile court records; appointments made without jurisdiction are nullities and liable to be set aside
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28 October 2010 |
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Failure to substitute and serve the deceased seller’s estate barred default judgment; bona fide purchaser prevailed under Titles Registration Act.
Death of a party — effect on legal practitioner’s mandate and service; substitution under r 85A — service requirements; default judgment — necessity of valid service on estate; Titles Registration and Derelict Lands Act s 3 — service by advertisement and relief; bona fide purchaser for value and long possession; court’s discretion to order registration and authorize deputy sheriff to sign cession
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28 October 2010 |
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The claimant is entitled to receive percentage-based estate fees in the currency the estate account was lodged (United States dollars).
Estate administration — curator and executor remuneration — percentage-based awards — taxation by Master — multi-currency regime — payment in currency of lodged estate account (S.I.54/07; Admin of Estates Act ss 56, 96).
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27 October 2010 |
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Decree of divorce granted; mother awarded custody and maintenance; court apportioned matrimonial assets, excluding company and third‑party registered assets.
Family law – divorce – irretrievable breakdown; custody of minor children; maintenance – quantum and payment terms; division of matrimonial property – contributions, company-owned assets, assets registered in third parties’ names; reliability of disputed documentary evidence; costs where parties lack candour.
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27 October 2010 |
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Court apportioned liability (70%/30%) where unsecured cargo and an overhanging excavator caused a fatal road accident.
Road traffic accident — negligence in securing loads — abnormal/overhanging load — permit conditions, escort and beacon requirements — causation and common‑sense apportionment of blame — contributory negligence — damages and interest (5%); refusal of Z$ funeral claim due to dollarisation
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26 October 2010 |
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Estate agent was a stakeholder, plaintiff failed to prove payment to seller, claim dismissed with costs.
Agency of estate agent — stakeholder versus vendor’s mandatary; acceptance of deposit not proof of authority to conclude sale or pay vendor; necessity of proof of payment to vendor; validity of contract variation and cession consent
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26 October 2010 |
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Cancellation for non-payment upheld; tenant’s set-off and oral variation claims rejected; no referral to trial.
Lease law – non-payment of rent – cancellation under clause providing alternative grounds – set-off claim defeated by express allocation of repair obligations and entire agreement clause – parole evidence rule – motion proceedings; no trial required.
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26 October 2010 |
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The applicant's property claim was dismissed as prescribed because summons was issued after the three-year prescription period.
Prescription Act (Cap. 8:11) — prescription of actions for transfer/cession of immovable property — s15 three‑year prescription period; s16 commencement when debt due; s7 interruption by process must occur before prescription elapses.
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26 October 2010 |
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Respondents held in contempt for wilful non-compliance with order to deliver 47,500 litres of fuel; corporate fined.
Contempt of court – ad factum praestandum – failure to deliver goods – mens rea/wilfulness required for contempt – Nulla Bona return not a per se excuse – corporate contemnor cannot be imprisoned; fine and suspended custodial sentences imposed.
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26 October 2010 |
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Court ruled re‑indictment and committal valid until set aside and refused indefinite postponement of trial pending unprosecuted appeal.
Criminal procedure — Re‑indictment after dismissal for want of prosecution — ss321, 322 and s160(2) — Effect of irregularities in indictment on High Court trial — s65(i)(v) — Postponement pending appeal — finality of proceedings.
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26 October 2010 |
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Whether re‑indictment under s65/66 permits trial despite alleged procedural irregularities and a pending appeal.
Criminal procedure – Treason – Re‑indictment under s 65 read with s 66 – Effect of ss 321/322 on re‑indictment – s 66 renders irregularities in bringing accused to High Court nugatory – s160(2) six‑month committal period – stay pending appeal – dominus litis – judge‑shopping.
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26 October 2010 |
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The applicant failed to prove that the respondent instituted disciplinary proceedings maliciously or without reasonable and probable cause.
Delict — malicious proceedings/malicious prosecution — requirement of absence of reasonable and probable cause and malice; vicarious liability for improper modes of performing authorised duties; disciplinary procedure and compliance with National Employment Code; arbitral award setting aside internal finding on procedural defects
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25 October 2010 |
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An agent acting under an unrestricted power of attorney lacked locus standi where the executor abdicated duties without Master’s approval under s 28; eviction application dismissed.
Administration of estates – executor’s powers – special power of attorney – delegation versus abdication – requirement for Master’s approval under s 28 for assumption of executorship; Civil procedure – locus standi – standing to prosecute estate claims; Res judicata – prior dismissal for lack of jurisdiction does not bar fresh proceedings on merits
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20 October 2010 |
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Divorce award of a 50% share without registration does not create a real right binding third‑party purchasers.
Family/matrimonial property — award of monetary or share interest on divorce does not create a proprietary right against third parties absent registration; personal rights inter se — purchaser for value without notice not bound; procedural non‑compliance of counter‑claim (Order 18 r 121(1)).
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20 October 2010 |
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Appellate court treated related stock-theft counts as one, rejected "special circumstances" and reduced an excessive 45-year term to 18 years (5 suspended).
Criminal law – Stock theft – multiple counts forming a continuing criminal enterprise – counts to be treated collectively for sentence; mandatory minimum sentence – "special circumstances" required to avoid minimum; manifestly excessive sentence – appellate substitution of globular sentence.
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20 October 2010 |
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Court allowed amendment, pierced corporate veil for diversion of funds, denied specific performance and awarded USD damages.
Amendment of pleadings – court’s wide discretion; irregular notice allowed where no prejudice and not mala fide – Contract interpretation – parol evidence and absence of term making performance conditional on foreign currency allocation – Corporate veil – lifting where company is alter ego and funds diverted – Specific performance – impossibility where goods discontinued – Damages – market substitute valuation in foreign currency
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19 October 2010 |
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Applicant’s spoliation claim dismissed as an improper attempt to vary an extant High Court provisional interdict.
Civil procedure — mandament van spolie — urgency — provisional/interim interdict — functus officio — a judge cannot vary or nullify a prior High Court order of a judge of parallel jurisdiction
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19 October 2010 |
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Registration of arbitral award granted; appeal not suspensive and public-policy defence narrowly applied.
Labour law; registration of arbitral awards (s98(14)); s92E – appeal does not suspend award; public policy defence narrowly construed; merits of arbitrator’s decision not examinable on registration absent palpable inequity.
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19 October 2010 |
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Magistrate may order and execute eviction under s 3(5) despite an appeal if satisfied the appeal is frivolous or for delay.
Administrative and criminal procedure — Gazetted Land (Consequential Provisions) Act s 3(5) — Magistrates’ court jurisdiction to issue and execute eviction orders — s 40(3) Magistrates Court Act — execution pending appeal where appeal frivolous or for delay — functus officio — monetary jurisdiction not limiting s 3(5) evictions
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12 October 2010 |
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Assessment of loss of support where income records were incomplete; court estimated future earnings and discounted for contingencies.
Damages — fatal injury — assessment of loss of support in absence of full income records — use of estimates/‘plucking a figure’ — components: poultry profits, tobacco income, property development profits — contingency discount — claim for repair costs dismissed for failure to prove quantum
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12 October 2010 |
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Application to stay execution based on alleged local-currency payment dismissed; debt held still owing and costs awarded.
Execution of judgment – stay of execution – allegation of payment in local currency to discharge foreign currency judgment – conversion principles – verification by Sheriff – forged supporting document undermining claim – onus and balance of probabilities – dismissal and costs.
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12 October 2010 |
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Bail refused: strong State case and high abscondment risk outweighed delay and personal ties.
Bail — armed robbery — likelihood of abscondment — strength of State case (accomplices' statements and possession of victim’s property) — inordinate delay not determinative.
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12 October 2010 |
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Stay granted of an ex parte interim order that displaced elected union leadership and directed police to arrest without discretion, pending appeal and trial.
Civil procedure – ex parte interim order – stay of execution pending appeal – enforcement by contempt while disputes of fact referred to trial – orders directing police to arrest and effect on statutory discretion and constitutional rights – union leadership disputes and bank account access
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11 October 2010 |
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An arbitral award may be registered as a High Court order despite a pending appeal unless suspended or set aside.
Labour law – registration of arbitral awards – s 98(14) Labour Act – registration permissible despite pending appeal unless award suspended or set aside – enforcement of award; reinstatement and back pay; stay of execution to be sought in Labour Court.
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6 October 2010 |
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Disputed customary succession and appointment require trial evidence; review on affidavits inappropriate; papers converted to pleadings.
Customary law — succession to chieftainship — disputed facts regarding age, eligibility and nomination — review inappropriate where viva voce evidence required — matter referred to trial; papers converted to pleadings; costs in the cause; Traditional Leaders Act compliance.
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6 October 2010 |
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Applicant lacked locus to obtain spoliation/eviction against lawful occupants of gazetted State land; material disputes of fact required oral evidence.
Land law – Spoliation – possession versus title; Constitutional Amendment No.17/Schedule 7 effect on status of land; locus standi to seek eviction from gazetted State land; urgent chamber applications inappropriate where serious disputes of fact require oral evidence
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5 October 2010 |
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Leave to execute pending appeal refused where divergent authorities gave respondent realistic prospects of success and balance of convenience favored stay of possession.
Spoliation (mandament van spolie) – unlawful occupation as defence – divergent High Court authorities – leave to execute pending appeal – prospects of success and balance of convenience; Land acquisition – s16B & Schedule 7 vesting title in State – relevance to spoliation proceedings
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5 October 2010 |
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Convicted sodomy applicant granted bail pending appeal because the appeal was reasonably arguable on credibility and evidential deficiencies.
Criminal law — Bail pending appeal — Guiding principles: prospects of success, risk of absconding, delay, right to liberty — Appeal reasonably arguable due to credibility issues, non-production/washing of exhibit, delayed medical exam, inadequate exploration of possible motive — Bail granted.
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5 October 2010 |
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Applicant failed to show changed circumstances after prior bail refusal; delay by registrar insufficient to justify release.
Criminal procedure – bail pending trial – requirement to show material change after earlier refusal; seriousness of sexual offences and protection of minors; registry delay insufficient to warrant bail.
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5 October 2010 |
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Applicant failed to prove respondent's wilful contempt amid competing mining and land-rights and insufficient evidentiary record.
Contempt of court — wilful defiance required for contempt — interplay between mining permits and judicial interdicts — pending rescission application does not automatically suspend an order — evidentiary insufficiency where maps/ministerial affidavits absent
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4 October 2010 |
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Registration of a labour arbitral award is procedural and must be granted unless stayed or set aside.
Labour law – Registration of arbitral awards under s 98(14) Labour Act – registration procedural and for enforcement – noting an appeal does not suspend award – requirements for registration: competent arbitrator, award in money, extant award, parties identified, arbitrator's certificate.
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4 October 2010 |