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Citation
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Judgment date
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| January 2012 |
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An urgent application founded on deliberate non-disclosure and forum shopping is not urgent and will be dismissed with costs.
Urgent applications — material non-disclosure — duty of candour — forum shopping by re-filing before another judge — urgency vitiated by mala fides — dismissal with costs.
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31 January 2012 |
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Stay of execution granted pending leave to appeal due to Supreme Court clarification that former owners may be divested of land rights.
Land reform – offer letters and rights of occupation – spoliation and execution – stay of execution pending leave to appeal out of time – effect of Supreme Court decision (Commercial Farmers) in divesting former owners – peri-urban land acquisition question.
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31 January 2012 |
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Charge may be amended under s202 to correct particulars where prejudice is absent or curable by postponement.
Criminal procedure — s202 amendment of indictment — variance between charge and evidence — permissible correction of particulars unless mala fide or causing prejudice not curable by postponement — distinguish from impermissible substitution of offence (S v Shand) — postponement as remedy.
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31 January 2012 |
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Accused found not guilty by reason of insanity due to temporal lobe epilepsy supported by EEG and expert evidence.
Criminal responsibility; insanity defence; diminished mental responsibility; temporal lobe epilepsy; EEG evidence; section 29(2) Mental Health Act; special verdict (not guilty by reason of insanity).
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31 January 2012 |
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A company was found in wilful contempt for defying a court retraction order; its officers were not proven personally in contempt.
Civil procedure — Contempt of court — Order ad factum praestandum against a company — Personal service/personal knowledge required for committal of officers — Directors’ liability for company contempt when they cause company to disobey — Counsel’s fees as disbursements; taxation appropriate route — Monetary fine as sanction for corporate contempt.
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31 January 2012 |
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Magistrate failed to impose mandatory firearms sentence and invite special circumstances; review court withholds certificate due to delay and unfairness.
Criminal law — Firearms Act — mandatory minimum sentence — obligation to invite special circumstances — review procedure — delay in lodging record — certification of proceedings as in accordance with real and substantial justice.
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31 January 2012 |
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A defendant cannot obtain dismissal for want of prosecution by chamber application after pleadings close; proper procedural steps required.
Civil procedure — dismissal for want of prosecution — chamber application — Order 9 r 61 inapplicable unless plaintiff barred — Order 32 (application procedure) not a substantive basis to dismiss after close of pleadings — defendant should seek directions (Order 23), discovery (Order 24 r160) or pre-trial (Order 26).
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30 January 2012 |
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Rescission of default divorce judgment dismissed for failure to show good and sufficient cause.
Civil procedure — Rescission of default judgment — Order 9 r 63 — Requirements: reasonable explanation for default, bona fides, prima facie prospects of success; improper commissioning of affidavit; service of set-down on nominated legal practitioners sufficient under r 272(2)(b); division of matrimonial estate under s 7 Matrimonial Causes Act.
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30 January 2012 |
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Court found marriage irretrievably broken; custody to respondent; movables to respondent; Domboshawa stand awarded to minor child.
Divorce – irretrievable breakdown – objective test under s 5(1) Matrimonial Causes Act – sufficiency of plaintiff’s insistence on ending marriage – custody and access – distribution of movable matrimonial property – award and registration of undeveloped immovable property in minor’s name – maintenance governed by existing magistrate order.
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25 January 2012 |
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Applicant awarded 65% of marital home; respondent given 35%, rehabilitative maintenance and child custody/maintenance.
Matrimonial property division – indirect (non‑financial) contributions of spouse – duration of marriage – award of share; Post‑divorce rehabilitative maintenance – need, quantum and duration; Custody and child maintenance; Valuation and buy‑out option; Costs of suit – each party to bear own costs.
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25 January 2012 |
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Whether a donated property is excluded from the matrimonial estate and how to equitably divide the family home.
Family law – divorce on irretrievable breakdown – division of matrimonial estate – s 7(3) exception for assets donated/inherited/sentimental – s 7(4) factors – weighing direct and indirect contributions – valuation, buy-out and sale procedure.
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25 January 2012 |
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Applicant validly cancelled lease for repeated late/lump-sum rent payments; respondent ordered to vacate and pay costs.
Lease – rent payable monthly in advance – unilateral lump-sum and late payments as breach – election to cancel lease – validity of affidavit by legal practitioner under r 227(4) – waiver by acceptance of rent – material disputes of fact.
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24 January 2012 |
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Court granted interim interdict preventing respondents forwarding another candidate for chieftainship pending court determination.
Traditional Leaders Act s3 – clan nomination for chieftainship – executive commission interfering with customary selection – urgency and interim interdict to preserve status quo pending determination.
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24 January 2012 |
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Spoliation claim dismissed because material disputes of fact prevented proof of peaceful possession and forcible dispossession.
Property law — mandament van spolie (spoliation) — requisites: peaceful possession and forcible or wrongful deprivation — lawfulness of possession not required — motion proceedings and disputes of fact: where bona fide material disputes exist, relief should not be granted on papers without hearing evidence — vague interim relief.
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23 January 2012 |
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A post-mortem report by a medical practitioner is admissible on mere production under s 278(2) despite the author's unavailability.
Criminal procedure — Admissibility of medical affidavits — Post‑mortem report admissible on mere production under s 278(2) Criminal Procedure and Evidence Act — notice and court’s power to call author or use interrogatories (s 278(11), (12)).
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22 January 2012 |
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Defective service on corporate applicants warranted an interim stay of execution pending rescission to protect third-party interests.
Civil procedure — Service on body corporate — Order 5 r 39(2)(d) — service valid only at registered office/place of business or on director/secretary/public officer — defective service vitiates default judgment; interim stay of execution pending rescission where prospects of success and balance of convenience favour applicant — protection of third-party rights.
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19 January 2012 |
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Parliament breached standing orders and usurped the CSRO’s disciplinary role; the High Court declared the amended dismissal motion null ab initio.
Constitutional officers – Clerk of Parliament – appointment and supervision by CSRO – MPs lacked locus standi to initiate dismissal; Parliamentary privilege – defective certificate does not oust court jurisdiction; Sub judice – Standing Order 62(d) prohibits debate on matters before courts; Procedural fairness – Officers of Parliament (Terms of Service) Regulations and s48(2) govern dismissal process; Amended motion and biased committee irregular and void.
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19 January 2012 |
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Applicant granted interdict and eviction after respondents unlawfully occupied state land allocated by the Ministry.
Urgent application – possession of state land – lawful allocation by Ministry – unlawful occupation and self-allocation by respondents – lack of locus standi – interdictory relief and eviction authorised – final order in urgent proceedings.
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17 January 2012 |
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Court stayed eviction/cancellation application due to lis alibi pendens; ordered applicant to pay wasted costs.
Civil procedure — lis alibi pendens — stay of proceedings where related matter pending between same parties — identity of question despite differing causes of action — discretion exercised for equity and convenience; costs for multiplicity of suits.
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17 January 2012 |
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Reviewer withholds certificate due to multiple procedural and sentencing irregularities and suspected incompetence or corruption.
Criminal review — sentencing irregularities — failure to specify statutory provisions — mandatory driving prohibition and "special circumstances" inquiry — conflicting community service orders — absence of post-mortem for one deceased — withholding of certificate; concerns of incompetence/corruption.
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12 January 2012 |
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Whether an arbitral award may be registered and executed while an appeal suspends its operation.
Labour law — Arbitration awards — Effect of noting appeal on enforceability of arbitral awards — Registration of awards in High Court while appeal pending — Chamber applications and the duty to consider opposing papers — Interim stay of execution.
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11 January 2012 |
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Agreement to pay repairs in rands found, but plaintiff failed to prove repair values; defendant absolved from instance.
Contract – currency of payment – agreement to pay in foreign currency (rands) lawful; Evidence – proof of value of repairs requires itemisation and witness evidence; Civil procedure – absolution from instance where plaintiff fails to prove essential element of claim; Credibility – assessment of witnesses; Context – multiple currencies in Zimbabwe and commercial probabilities.
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10 January 2012 |
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Beneficiaries awarded property on approved distribution account entitled to evict occupant; cession valid and no genuine factual disputes.
Intestate succession; validity of cession; executor's distribution account and beneficiaries' locus standi; lis pendens; material disputes of fact in motion proceedings; eviction relief.
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10 January 2012 |
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Interdict dismissed for lack of urgency and material non-disclosure; punitive costs awarded.
Urgent interlocutory interdict — urgency and delay — material non-disclosure and mala fides — forum shopping — jurisdiction and remedies under Mines and Minerals Act — mining commissioner intervention — punitive costs (legal practitioner and client scale).
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9 January 2012 |