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Citation
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Judgment date
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| September 2010 |
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Applicant lacked standing and material factual disputes required oral evidence; amendment of estate distribution dismissed with costs.
Administration of Estates Act (ss 68E, 68F) — executor's distribution — locus standi to represent another — motion procedure versus action where material disputes of fact require viva voce evidence — adequacy of documentary proof.
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29 September 2010 |
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Entering an enclosed yard by opening a gate is criminal trespass, not unlawful entry into premises; conviction and sentence not confirmed.
Criminal law — unlawful entry into premises (s 131) vs criminal trespass (s 132) — meaning of "premises" (s 130) — yard/enclosed area is criminal trespass, not unlawful entry into premises — sentence competence.
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29 September 2010 |
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Court refused applicant's winding-up petition where respondent provided security and assets, making liquidation disproportionate.
Companies Act s205(a) – deeming provision for inability to pay – court’s discretion under s206 and inherent jurisdiction to refuse liquidation – proof of solvency by security (title deeds, bank guarantee) – abuse of process/harassment in winding-up petitions.
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29 September 2010 |
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Court enforces parate executie clause over pledged movable coldrooms, finding no proven undue influence and authorising execution.
Parate executie – enforcement of pledge agreements over movables – validity of clause permitting immediate attachment and sale – undue influence/duress allegations require corroboration – movable versus immovable distinction for fittings – judicial sanction for summary execution.
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28 September 2010 |
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Court awards damages and pension rather than reinstatement after unlawful dismissal, using realistic salary basis and mitigation deduction.
Labour law — summary dismissal later held unlawful — reinstatement vs damages in lieu — quantification of loss across currency/time — mitigation for failure to seek alternative employment — pension entitlement calculation.
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28 September 2010 |
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Plaintiff held solely liable for collision due to reckless overtaking; tractor/trailer defects not causative.
Road traffic — negligence — unsafe overtaking and excessive speed — causation — unlicensed/unregistered tractor and trailer — absence/positioning of rear lighting and chevron — statutory exemptions for farm vehicles — onus of proof — quantum of damages.
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28 September 2010 |
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Lease tacitly renewed; tenant failed to pay rent, eviction granted and landlord entitled to higher-scale costs.
Lease law – tacit relocation/automatic renewal – notice requirement; rent-review clause and expert determination; Commercial Premises (Rent) Regulations 1983 s 22(2) – protection requires continued timely payment; eviction for arrear rent; interpretation of costs clause – attorney-and-client versus party-and-party costs.
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27 September 2010 |
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Guilty pleas and sentences invalid where magistrates failed to canvass essential elements and maintain accurate sentencing records.
Criminal procedure — s 271(2)(b) CP&E Act — canvassing essential elements of guilty pleas; sentencing irregularities — inconsistent records and incompetent community-service orders; improper charge specification; review remedies — quash, set aside, correct, confirm.
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27 September 2010 |
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A customary marriage is not dissolved by separation alone; gupuro required, and a biased executor was removed.
Customary-law marriage — dissolution — requirement of gupuro — separation insufficient; Surviving spouse status for intestate succession; Removal of executor for conflict/bias; Administration of Estates Act s 68 — distribution and polygynous considerations (s 68D/68F).
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22 September 2010 |
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Transfer of property during pending litigation is void; purchaser who knew of the dispute is mala fide.
Property law – transfer of res litigiosa – alienation after litis contestatio invalid; purchaser with prior knowledge is mala fide; rei vindicatio available to true owner; estoppel defence not established.
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21 September 2010 |
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Court allowed insurer to amend plea limiting cover to Zimbabwean Dollars, finding no irremediable prejudice to plaintiffs.
Civil procedure – amendment of pleadings – R.133 – amendments allowed unless mala fide or causing irremediable injustice; Insurance law – policy currency limitation – insurer permitted to plead cover limited to Zimbabwean Dollars; Practical effect – necessity to determine extent of liability; Currency conversion issue unsettled.
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21 September 2010 |
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Lender entitled to judgment for outstanding offshore loan; exchange control approval and interest calculations upheld.
Banking and contract law – Offshore loan facility – validity of summons where contract contemplates manager/accountant certificate – proof of indebtedness on a balance of probabilities – application of LIBOR and establishment fees under written facility – Exchange Control/Reserve Bank approval – supervening impossibility – award of interest and costs.
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21 September 2010 |
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A magistrate cannot alter a pronounced sentence; post-sentencing substitution is invalid and High Court imposed appropriate sentence.
Criminal law – unlawful possession of dagga – large quantity (1,625g) attracting presumption of supply – sentencing – functus officio – magistrate may not alter sentence after pronouncement; record must be referred for High Court review.
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21 September 2010 |
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Magistrate misapplied sentencing principles and failed to follow s271(2) procedure, resulting in unjustified custodial sentences.
Criminal procedure — sentencing — duty to explore non‑custodial alternatives (community service, fines) — change of plea during trial — compliance with s271(2) Criminal Procedure and Evidence Act — excessive custodial sentences — review and withholding of certificate.
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15 September 2010 |
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Where no vaginal penetration is proved, rape convictions can be substituted with attempted rape and community service hours reduced.
Criminal law — Rape — Penetration: slightest penetration suffices but must be proved — Touching outside vaginal orifice ≠ penetration — Attempt to rape (s 189) where execution commenced — Sentence for attempt same as substantive offence (s 192) — Community service hours limited by guidelines.
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15 September 2010 |
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Central bank’s confirmed auction allocations and purchaser’s timely payment created a binding obligation to deliver US$750,000; specific performance ordered.
Contract formation – special allocations under foreign-currency auction – sale of foreign currency by central bank; Specific performance – purchaser entitled to delivery of foreign currency rather than devalued local-currency refund; Estoppel – representation and plaintiff’s reliance; Remedy – interest a tempore morae and costs.
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14 September 2010 |
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Applicant's rescission failed because prior registration divested seller's title and applicant had consented to magistrate's jurisdiction.
Property law — effect of registration — prior registration divests seller of title; subsequent sale/cession by divested seller void — rescission of default judgment — lack of reasonable prospects of success — magistrates' court jurisdiction — party's consent by initiating proceedings.
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14 September 2010 |
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Agent acted beyond a shareholder’s power of attorney; resulting transfers were irregular and titles defective; Master’s report ordered.
Agency and powers of attorney – scope of authority – agent acting ultra vires – company property and shareholder shares – validity of transfers – Turquand rule inapplicable where agent lacks authority – need for Master of the High Court’s report regarding deceased estates.
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14 September 2010 |
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Default judgment rescinded where defence was struck out at pre-trial conference without required oral application.
Civil procedure – rescission of default judgment – r 63 good and sufficient cause – r 449 rescission of erroneously granted orders – pre-trial conferences – r 182(11) requires oral or chamber application to strike out a defence – judge cannot validly strike out defence mero motu.
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14 September 2010 |
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Labour Act grants exclusive jurisdiction to Labour Court; High Court must register labour arbitral awards unless set aside.
Labour law — exclusive jurisdiction of Labour Court (s89(6)) — registration of arbitral award (s98(14) Labour Act) — Arbitration Act applicable only subject to s98 — ss34 and 36 Arbitration Act not available for labour awards — challenges must proceed in Labour Court.
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14 September 2010 |
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Improperly obtained statement and flawed identifications led to the accused's acquittal for murder.
Criminal law — admissibility of extra‑curial statements — voluntariness and undue influence; identification evidence — requirement for proper identification parade; possession of stolen property — insufficiency to prove participation in a violent robbery‑murder absent reliable linkage; foreign seizure/identification — need for witness testimony and documentation; s 198(3) discharge where no prima facie case.
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13 September 2010 |
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The applicant, as executor, retained standing; the respondent’s alleged right of first refusal and rent-withholding failed; eviction and damages granted.
Administration of estates – executor dative’s locus standi pending final liquidation (s 52) – Lease law – right of first refusal/pre-emption requires clear evidence and does not permit withholding rent – Statutory tenancy obligations – rent payable monthly in advance; breach permits lease cancellation and eviction – Remedies: arrear rentals, holding-over damages, interest, legal practitioner and client costs.
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6 September 2010 |
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Police unlawfully assaulted the plaintiff; State held vicariously liable and awarded US$5,000 damages with interest and costs.
Delict — Unlawful assault by police — Vicarious liability of State for employees’ acts committed in course of employment — Proof and quantification of general and special damages (pain and suffering, contumelia, loss of amenities, disability, loss of earnings) — Requirement for medical and documentary proof of injuries and expenses.
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6 September 2010 |
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Court set aside its prior judgment after finding mining titles were procured by fraudulent concealment of incorporation and reservation facts.
Administrative law; mining rights – rescission of judgment procured by fraud – use of shelf companies and non‑incorporation at time of registration – reservation against prospecting (s35) – functus officio and rescission – Rule 449 and inherent jurisdiction – public interest in mineral title registration.
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5 September 2010 |
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Defendant failed to prove return or disposal of consigned goods; plaintiff awarded value, interest and higher costs.
Sale and delivery of goods – consignment – evidentiary onus to prove return or lawful disposal of goods – failure to account for consigned goods – entitlement to interest and higher scale costs.
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5 September 2010 |