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Citation
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Judgment date
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| May 2016 |
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A magistrate cannot decide contested merits at a pre-trial conference where parties have not agreed; matter remitted for proper pre-trial.
Civil procedure — Pre-trial conference — Order 19 Magistrates' Court (Civil) Rules — purpose is case-management and settlement, not determination on merits — magistrate’s misdirection in ordering eviction at pre-trial where parties not ad idem — remittal for proper pre-trial conference.
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31 May 2016 |
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Payments to accounts nominated by a fraudster did not discharge the defendant’s debt; Turquand rule inapplicable where no actual agency.
Contract for supply of goods – payment into varied bank accounts – fraud by third party purporting to be company agent – apparent authority and Turquand rule inapplicable where fraudster not authorised – company not bound by fraudster’s representations
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30 May 2016 |
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Applicant awarded 70% of the matrimonial home after respondent's long desertion; needs and conduct outweighed contributions.
Matrimonial property division — s 7 Matrimonial Causes Act — needs and expectations versus direct contributions — desertion/abandonment — valuation and buy-out option — 70:30 award of matrimonial home.
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26 May 2016 |
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Concessionary school-fees for employees’ children constitute a taxable employment benefit; valuation is by employer’s cost, but waived amounts were upheld for PAYE assessments, with limited reassessment where children attended other schools.
Income tax — Benefit in kind — Waiver of school fees for employees’ children — Whether concessionary schooling is an "advantage or benefit" under s 8(1)(f) (and s 8(1)(b)) — Valuation of benefit: cost to employer versus waived amount — PAYE withholding liability of employer — Assessments where benefit arises from inter-school agreements
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20 May 2016 |
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Spoliation refused where applicants failed to prove statutory or constitutional authority to occupy gazetted agricultural land.
Spoliation — Gazetted Lands (Consequential Provisions) Act — unlawful occupation of gazetted land — meaning of "lawful authority" (offer letter, permit, lease) — s 291 Constitution (continuity of occupancy rights) — necessity to prove lease or agreement with State — courts will not assist litigants acting in defiance of statute.
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19 May 2016 |
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Claimant failed to prove ownership of goods attached in execution; claim dismissed with costs.
Interpleader proceedings – onus on claimant to prove ownership – invoices insufficient proof of delivery or transfer – property in judgment debtor’s possession – registration of trust not determinative.
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19 May 2016 |
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Whether an overly evidentiary, prolix declaration should be struck out and whether an arbitration clause ousts court jurisdiction.
Civil procedure – Pleadings – Exception and strike out – Voluminous, evidentiary and prolix declaration contrary to r 99 – Defendant entitled to concise statement of material facts; Arbitration – Arbitration clause versus non‑exclusive jurisdiction clause – Arbitration not mandatory absent clear intention that it be first instance procedure
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18 May 2016 |
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Plaintiffs failed to prove a lease or meeting of minds with the defendant; claim for arrears and eviction dismissed.
Contract law – Lease – existence of lease – offer and acceptance; meeting of minds; privity of contract; proof of terms; improvements and claim for set-off/lien; entitlement to arrears, holding-over damages and eviction
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18 May 2016 |
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Summary judgment refused where lis pendens and unclear identity of the cause of action between related suits raised triable issues.
Civil procedure – summary judgment – lis pendens/res judicata – multiplicity of actions – guarantor liability; necessity of clarity on cause of action and security before granting summary judgment
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18 May 2016 |
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Applicant failed to show prima facie entitlement to stay execution pending rescission; execution allowed.
Civil procedure — urgent application for stay of execution pending rescission of default judgment — joint and several liability; res judicata; requirements for interim interdict — prima facie right; irreparable harm; balance of convenience
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18 May 2016 |
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Court declared applicants lawful shareholders, refused direct transfer of company property, found respondent barred and practitioner’s affidavit unauthorised.
Civil procedure — service at domicilium by placing in letterbox — return of service prima facie proof — r 233(2) bar for failure to file opposing papers — authority required for practitioner to depose and oppose (r 227) — disputed entitlement to company shares vs direct transfer of company property — company property dealt with under Companies Act
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18 May 2016 |
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The appellant’s eviction claim was not prescribed and suing the respondent (not the estate) was appropriate; absolution was wrongly granted.
Property law – eviction – cause of action arises when owner becomes aware of material facts; prescription – continuous wrong doctrine; Civil procedure – absolution from the instance – inappropriate where plaintiff proves material facts to require defendant’s answer; Succession/representation – estate not necessary party where property was alienated in deceased’s lifetime and surviving spouse exercises de facto control
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18 May 2016 |
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Bank’s sale of immovable security without satisfying s 38 prerequisites and joining registered title holder was unlawful.
Agricultural Finance Corporation Act s 38 – statutory powers to take possession and sell security – s 38(2) subject to s 38(3) and events in s 38(1)(c),(d),(e) – immovable property – unlawful self-help – protection and joinder of third-party title holder.
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18 May 2016 |
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Buyer entitled to refund and improvement costs (less borehole vandalism); seller’s forfeiture and reconvention claims failed.
Instalment sale of land – enforceability of forfeiture/penalty clauses – parole evidence and s 7 Contractual Penalties Act – proof of oral terms – damages for unauthorised alterations and vandalism – assessment of relief under s 9(3).
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18 May 2016 |
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Last‑minute challenge to execution was not urgent; matter removed from roll and costs awarded against the applicant.
Urgency — self-created urgency; Order 40 r 331 — joinder of creditors in execution and participation in proceeds; Provisional sentence — effect of tax directive; Stay of execution — prerequisites and delay; Abuse of process; Certificate of urgency requirements.
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18 May 2016 |
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Challenge to arbitral award on public policy grounds dismissed where applicant’s arbitration concession established the loan’s validity.
Arbitration — setting aside arbitral award — public policy (Article 34(2)(b)(ii) Model Law) — concession in arbitration — acceptance of cession implies acceptance of underlying instrument — mere error of law/fact insufficient; must be palpable inequity — new issues not raised before arbitrator inadmissible on review.
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18 May 2016 |
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An application to rescind a judgment previously challenged and dismissed is barred by res judicata; costs de bonis propiss awarded.
Rescission of judgment – res judicata – functus officio – prior unsuccessful rescission bars subsequent application seeking same relief – default judgment remains binding until set aside or appealed; costs de bonis propiss; referral to Law Society.
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18 May 2016 |
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Claimant failed to prove ownership of goods attached in execution; attachment confirmed and costs awarded.
Interpleader/attachment in execution — onus on claimant to prove ownership of attached goods — proof on balance of probabilities — inconsistent dates and lack of documentation fatal to claim — attachment confirmed; costs on legal practitioner and client scale.
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18 May 2016 |
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Tenant breached lease by cutting trees without consent; plaintiff awarded commercial-value damages; reconventional claims dismissed.
Lease law – tenant bound by signed written lease despite clerical errors (caveat subscripto) – unlawful cutting of trees in breach of lease – valuation of trees (commercial quotations v Forestry Commission) – malicious prosecution requires malice; acquittal alone insufficient – defamation requires proof of publication.
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18 May 2016 |
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Whether a 2013 agreement and conduct interrupted prescription for an earlier unpaid commercial debt under the Prescription Act.
Prescription Act — s15(d), s16: period and commencement of prescription for debts — s18: interruption by express or tacit acknowledgment — commercial conduct (supplying on cash-on-delivery while servicing old debt) can constitute acknowledgment interrupting prescription.
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18 May 2016 |
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Court upheld rape conviction based on child testimony and medical signs of penetration, dismissing appeals against conviction and sentence.
Evidence — credibility of child witness; Sexual offences — proof of legal penetration; Medical evidence — hyperpigmentation as corroboration; Evaluation of child testimony — cultural and developmental considerations; Sentencing — appropriateness of 14-year term for rape.
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18 May 2016 |
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Employee's conviction for theft of trust property upheld on cumulative circumstantial evidence and breach of cash-handling duties.
Criminal law – Theft of trust property – Circumstantial evidence – Duty to account for money received in course of employment – Standard of proof beyond reasonable doubt – Conviction on cumulative circumstantial facts appropriate where alternative explanation not reasonably possible.
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18 May 2016 |
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Seller convicted of fraud for misrepresenting availability of land already ceded to another purchaser.
Criminal law – Fraud – Double sale/cession of rights in State land – Misrepresentation as to availability of land – Knowledge and intention to induce purchaser – Circumstantial evidence and credibility findings – Non‑calling of complainant/executor not necessarily fatal – Amendment of charge to identify actual prejudiced person.
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18 May 2016 |
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Conviction quashed where the State failed to prove the prevailing international cross rates, an essential element of the offence.
Exchange control — Adherence to international cross rates — Whether the prevailing international cross rate is an essential element of the offence — Prosecution obligation to prove applicable cross rate — Effect of failure to lead such evidence on safety of conviction.
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18 May 2016 |
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Failure to give 60‑day statutory notice is fatal to proceedings against ZIMRA, which is an agent of the State.
Customs and Excise Act s196 – mandatory 60‑day notice to sue the State/Commissioner/officer – ZIMRA as agent/organ of State – failure to give notice fatal to proceedings; preliminary point in limine upheld.
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18 May 2016 |
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Urgent stay of execution struck off for unexplained delay; bank consent to bond cancellation undermined applicant's position.
Civil procedure — Urgent chamber application — urgency requires explanation for delay; execution — stay of sale in execution pending realization of proceeds; mortgagee consent — misrepresentation affecting bond cancellation; costs for non-urgent applications.
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12 May 2016 |
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Applicants failed to prove possession required for mandament van spolie; application dismissed with ordinary costs.
Property law – mandament van spolie – requirements of peaceful and undisturbed possession and unlawful deprivation – evidentiary burden – joint possession not pleaded – lease and receipts as evidence of possession
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11 May 2016 |
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Applicant's delay and failure to seek tax deductions at quantification rendered its urgent application for stay of execution inadmissible.
Urgency—self-created urgency and delay in launching urgent relief; Tax law—employer's duty to deduct and remit income tax at quantification stage; Court orders—finality of court orders and limits on post-judgment tax directives; Pleading—material non-disclosure does not automatically invalidate urgent relief but may attract censure.
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11 May 2016 |
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A liquidator must obtain court leave under s221(2) to continue litigation; guarantees based on a non-existent principal are invalid.
Companies law – liquidation – s 221(2) – liquidator must obtain leave of court to bring or continue proceedings; Locus standi – substitution notice insufficient; Contract and suretyship – principal debtor non-existent — guarantees and mortgage security premised thereon invalid; Prescription – general three-year rule; mortgage-secured debts thirty-year prescription; burden to prove date of default.
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11 May 2016 |
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Whether the Minister may lawfully suspend a mayor under s114 pending Parliament’s enactment of s278’s independent-tribunal regime.
Constitutional law; local government; Urban Councils Act s114 (suspension/investigation) validated; Constitution s278 (removal) requires Parliament to establish independent tribunal; suspension distinct from removal; Minister may lawfully suspend but cannot dismiss without statutory tribunal.
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11 May 2016 |
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Urgent application to eject occupiers from mining claims struck off for lack of urgency due to inexcusable delay.
Urgent chamber application — urgency and unreasonable delay; certificate of urgency — who may sign; procedural compliance — Form 29C; statutory remedies under Mines and Minerals Act (not decided).
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11 May 2016 |
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Court found prescription raised factual disputes and referred the matter to trial; procedural set-down was sufficient.
Procedure – Order 21 r138 – setting down special pleas and exceptions; Prescription – whether prescription can be decided on the papers or requires evidence where factual disputes exist; Exception – sufficiency of declaration, vagueness and caveat subscriptor issues; referral to trial where material facts are disputed.
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11 May 2016 |
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Appointment of an administrator without the statutory inquiry, report and consultation breached administrative justice and was declared unlawful.
Co-operative Societies Act ss 113 & 120 — statutory inquiry and report required before appointment of administrator; Administrative law — s 68 Constitution and Administrative Justice Act s 3 — right to reasons, consultation and fair administrative process; Locus standi — management committee recognised by Ministry; Declaratory relief and invalidation of administrative action.
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11 May 2016 |
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Claimant proved ownership of most attached property; Mercedes E200, television and fridge declared executable.
Interpleader — attachment pursuant to execution — ownership of goods acquired in prior marriage — claimant’s burden of proof on ownership — credibility and falsehoods concerning specific items — declaration of executability of certain items.
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11 May 2016 |
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Request to refer recusal and fair‑hearing questions to the Constitutional Court dismissed as frivolous; no reasonable apprehension of bias shown.
Constitutional procedure – s 175(4) referral – meaning of constitutional matter (s 332) – requirement for evidential basis for referral (Mwonzora) – procedural propriety of notices – frivolous and vexatious standard for referrals – recusal and reasonable apprehension of bias – judicial independence and dual administrative/judicial roles of Chief Justice.
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11 May 2016 |
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Judge may hear urgency despite another judge's prima facie non‑urgency endorsement; provisional expulsion challenge not urgent due to adequate internal remedies.
Civil procedure — Urgency: requirements and irreparable harm; internal remedies — association disciplinary procedures and Congress as satisfactory alternative; jurisdiction — another judge may hear urgency where initial endorsement was prima facie and judge indisposed; review relief not suited to urgent roll; access to courts and fair hearing considered.
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10 May 2016 |
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Accused convicted of murder; diminished responsibility plea rejected for lack of medical proof and pervasive dishonesty.
Criminal law — Murder (s 47(1)(a)) — death by asphyxia/broken larynx — evidence of intent — confirmed warned and cautioned statement — s 314 uncontroverted evidence — diminished responsibility (s 218) not established — credibility of accused.
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10 May 2016 |
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An unsuspended arbitral award should be registered for enforcement unless stayed, set aside, or successfully appealed.
Arbitration — Registration and enforcement of arbitral awards — Pending appeal does not suspend execution absent a stay — Labour Act s 92E(3) — Registration not a review or appeal
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9 May 2016 |
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Former employee lacked a bona fide defence and locus standi to challenge the will; summary judgment for eviction and costs granted.
Succession law; summary judgment — bona fide defence; locus standi to challenge a will; occupation by former employee; eviction from deceased's estate property.
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4 May 2016 |
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A statutory disciplinary order is a judgment in a broad sense but not a 30-year judgment debt; the claim had prescribed.
Health Professions Act s117 – recovery of costs and penalties ordered by regulatory disciplinary committees; Quasi-judicial tribunals – determinations as "judgments" in a broad sense; Judgment debt vs cause of action – distinction for prescription; Prescription Act – commencement of prescription and applicable periods; Enforcement procedure – need for court action to obtain executable judgment.
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4 May 2016 |
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Claims arising by June 2011 prescribed; arbitration does not interrupt prescription and lis pendens upheld for remaining claim.
Prescription Act s15(d) — three‑year prescription for contractual/delictual debts; s19 — judicial interruption of prescription does not include arbitration; s17 — arbitration delays prescription only if claim validly referred in terms of reference; lis pendens — pending labour arbitration/appeal precluded High Court adjudication of award-related claim.
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4 May 2016 |
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Insufficient evidence of fraudulent misrepresentation and no binding BSGR guarantee; accused acquitted and discharged.
Criminal law – fraud – misrepresentation as essential element; corporate veil inapplicable to personal criminal liability of directors; conditional offers versus acceptance; parol evidence rule and written contracts; sufficiency of evidence and inspection in loco.
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4 May 2016 |