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Citation
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Judgment date
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| June 2016 |
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Agreements void for currency illegality and non-payment; applicant entitled to relief and title deed return; application granted with costs.
Property / contract law – share sale and investment agreement – validity affected by currency uncertainty and illegality (foreign currency without Exchange Control approval) – non-payment as failure of condition precedent – rescission and return to status quo ante – locus standi and validity of director resignation documents – prescription not applicable.
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30 June 2016 |
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Applicant failed to show good cause under s9 to vary consent divorce order; disputed facts require trial.
Family law — Variation of consent order under Matrimonial Causes Act s9 — 'Good cause' requires material change of circumstances — Disputed facts and allegations of nondisclosure cannot be decided on affidavits — Consent orders not reopened for mere regret.
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30 June 2016 |
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A will that prejudices a legally married surviving spouse’s rights and bequeaths to non-existent beneficiaries is invalid.
Wills Act s8 — formalities and Master’s discretion (s8(5); Wills — disinheritance of surviving spouse — s5(3)(a) — public policy; Bequests to non-existent beneficiaries; Intestacy; Constitutional protection of spouses' rights.
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30 June 2016 |
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A delisting order was rescinded because an offer-letter holder was not notified and the Minister withdrew opposition.
Civil procedure – Rescission of judgment (r 449(a)) – Judgment erroneously granted in absence of interested party; Offer letter as sufficient interest to require notice; Effect of withdrawal of opposition by Minister; State land delisting and constitutional context (s72, s289).
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29 June 2016 |
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Secondary evidence can establish a lost sale agreement and justify the court-ordered transfer of immovable property.
Property law – Transfer of immovable property – Lost written contract – Secondary evidence admissible to prove contract on balance of probabilities – Developer’s failure to pass transfer – Court power to order transfer and to authorise Sheriff to sign – Effect of rei vindicatio – Deeds Registries Act departures in exceptional circumstances.
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29 June 2016 |
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Resignation by a police member must comply with Police Act approvals and internal remedies, or court relief will be denied.
Police Act s22 — resignation subject to statutory notice and Commissioner General’s approval; exhaustion of internal remedies before High Court; engaging other employment without authority (para 37) — disciplinary consequence; interdict requires adequate evidence.
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29 June 2016 |
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A vague, non‑specific notice of appeal that fails to specify findings appealed against is fatally defective and will be struck off with costs.
Civil procedure – appeal – notice of appeal must specify grounds and findings appealed against – vague or rambling grounds render notice fatally defective – incurably bad notice is a nullity – appeal struck off the roll where no condonation sought.
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29 June 2016 |
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Suspension letter invalid where s 114 ground not specified; re-suspension suspended and declared null pending appeal.
Administrative law; Urban Councils Act s 114; suspension of councillors — requirement to specify enumerated statutory ground; res judicata — distinct cause of action; material non-disclosure in urgent applications; interim relief and competency of broad interdictions; interaction with constitutional removal procedure (s 278).
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29 June 2016 |
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Defendants failed to comply with statutory siting and EIA requirements; mining suspended pending compliance and Mining Commissioner investigation.
Mines and Minerals Act – requirement for siting works plan and EIA – notice to occupier – conversion of mill/site to blocks – interference with farming operations – referral to Mining Commissioner for investigation.
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29 June 2016 |
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Plaintiff who stopped the buyer collecting felled timber bears loss; buyer liable only for admitted unpaid amount.
Contract performance and interruption – disputed harvest quantities – liability for uncollected timber – causation of damage by veld fire – effect of plaintiff’s conduct in stopping buyer from collecting felled timber.
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29 June 2016 |
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The appellant was misjoined; the pension fund’s separate corporate personality required it be sued, not the employer.
Pension and Provident Funds Act s 6 – Pension fund separate corporate personality – Misjoinder – Claims against fund must be brought in its corporate name – Exceptions to separate legal personality not established – Magistrate’s failure to give reasons an irregularity.
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29 June 2016 |
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Claims to property and goods attached in execution were dismissed for lack of proof; attachment confirmed and properties declared executable.
Interpleader — proof of ownership required in attachment proceedings; trust donations post-dating guarantees cannot defeat creditor rights without consent; distinction between title to immovable property and proof of ownership of attached movables; execution of extant judgment unaffected by earlier provisional orders.
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29 June 2016 |
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Spoliation remedy restores possession; urgency justified and ownership disputes are irrelevant to mandament van spolie.
Property law — Mandament van spolie — Spoliation focuses on possession not title — Urgency — Self-help unlawful — Executors/Executrix dative seeking restoration of possession.
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27 June 2016 |
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High Court lacks jurisdiction to stay execution of a labour arbitral award; appeal or rescission does not suspend execution.
Labour law; enforcement of arbitral awards; High Court jurisdiction; Labour Court exclusivity; execution not suspended by appeal or rescission; quantification of awards.
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27 June 2016 |
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Alleged unlawful exclusion of the applicant from office did not meet the objective test for urgent relief; matter removed from the roll.
Civil procedure – Urgency – Objective test of urgency (time and consequences) – Irreparable prejudice required; Employment law – No general obligation on employer to provide work; Interim interdictory relief – Alleged illegality alone insufficient for urgency; Local government – Council resolution and ministerial rescission contested.
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24 June 2016 |
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A trade union lacked authority and locus standi to seek or organise collective action without mandated member consultation.
Labour law – Trade union authority and locus standi – Mandatory member consultation under s35 Labour Act before collective job action – Requirement to rely on constitution or evidence of mandate when instituting proceedings.
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23 June 2016 |
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Past directors can be personally liable under s 318(1) for reckless trading despite non‑executive status or resignation before maturity.
Companies Act s 318(1) — personal liability of past/present directors for reckless, grossly negligent or fraudulent trading; directors’ duties — non‑executive directors’ liability; evidentiary limits on heads of argument; Bankers Acceptances — time‑bound obligations and director responsibility; interest and costs awarded.
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22 June 2016 |
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Applicant failed to prove entitlement to a lump-sum death benefit under the employer’s self-assurance pension scheme.
Employment law – contractual interpretation of employee benefits – Self Assurance/insurance plan – whether death benefit payable as lump sum or as monthly pensions; documentary evidence authenticity; justus error defence.
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22 June 2016 |
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No interest due on refunded tax where overpayment resulted from the applicant's defective provisional tax estimate.
Income Tax Act s48(3) – interest on overpaid refundable tax – Commissioner liable only if refund delayed beyond 60 days and overpayment not due to incomplete/defective return or taxpayer error – provisional tax underestimation amounts to taxpayer error – no interest payable on refund.
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22 June 2016 |
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Plaintiff entitled to refund for undelivered culverts after defendant's breach; transport dispute did not invalidate the contract.
Contract law – sale of goods – purchase order as offer and novation; delivery versus collection; payment into third-party account and Exchange Control Regulations – not rendering contract simulated; breach for failure to procure goods from manufacturer; right to cancel and claim refund; summons as notice of cancellation; costs on attorney-and-client scale.
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22 June 2016 |
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Maintenance order remitted for proper inquiry into parents' finances; interim R380 maintenance to continue.
Maintenance law – custodial parent – employment away from children not determinative of custody; Maintenance Act s13(C) – duty to call documents and investigate income; magistrate’s duty to give reasons and disclose formula for maintenance; remittal for proper enquiry; interim maintenance preserved.
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22 June 2016 |
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Plaintiff's failure to prove vehicle diminution and business loss warranted absolution from the instance with costs.
Motor vehicle collision — Damages measured by diminution between pre- and post-accident market values; need for expert/valuation evidence; loss of business requires invoices/trip sheets; discovery is not production; absolution from the instance where damages not proved.
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22 June 2016 |
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Court granted urgent interdict preventing creditor's advertised foreclosure sale, holding sale without court order unlawful.
Civil procedure – urgent chamber application – Form 29 vs Form 29B – validity of certificate of urgency signed by representing counsel – urgency criteria – foreclosure sale; property law – sale without court order as unlawful self-help.
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22 June 2016 |
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Summary judgment granted where respondent’s unqualified acknowledgement of debt defeated any bona fide defence; punitive costs awarded.
Civil procedure – summary judgment – bona fide defence – unqualified acknowledgement of debt – vicarious liability for employee fraud – costs on attorney-and-client scale.
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22 June 2016 |
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Defendant's self‑defence rejected; deliberate driving-over to facilitate escape proven — special $13,918 and general $5,000 awarded.
Deliberate vehicle assault – intentional infliction of grievous bodily harm – credibility and probabilities – medical evidence of life‑threatening abdominal injuries – proof and quantification of special damages – general damages for pain, suffering and loss of earning capacity – future medical expenses not proved – rejection of self‑defence and contributory negligence/apportionment.
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22 June 2016 |
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22 June 2016 |
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The accused were convicted of murder for a joint brutal assault; State outlines under s66(6) must not contain conclusive summaries.
Criminal law – Murder – Common purpose – Presence, association and participation – Subjective foresight of death or serious injury – s47(1)(b) Criminal Law (Codification & Reform) Act – Procedure – s66(6) Criminal Procedure & Evidence Act – content of State outline; s198 opening address – Voluntary intoxication as mitigatory factor.
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17 June 2016 |
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Whether assignments and trust deeds accepted by a curator bind the liquidator and are enforceable against the respondent.
Banking Act s55(2)(e) – curator’s acts – tacit RBZ approval; validity and enforceability of assignments and security trust deeds; foreign investor purchases of Bankers Acceptances – exchange control; Companies Act s330 – establishing place of business; Insolvency Act – undue preference/impeachable transactions; liability and joinder of liquidator – suit against liquidator without leave.
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15 June 2016 |
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Municipal disconnection of water over a disputed bill without judicial adjudication breaches administrative justice and is unlawful.
Constitutional law — right to water and administrative justice — municipal power to disconnect supplies on 24 hours' notice — interpretation of water by‑laws — requirements of fair administrative procedure; unlawful self‑help where debt quantum disputed; final interdict granted.
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15 June 2016 |
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Plaintiff failed to prove existence or validity of an alleged will or his beneficiary status; absolution granted with costs.
Succession — validity of will — proof and production of alleged will — beneficiary status — absolution from the instance — forensic signature evidence; intestacy consequences.
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15 June 2016 |
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Default judgment obtained after defective service on a corporation was set aside under Rule 449; applicants to file opposing papers within 10 days.
Civil procedure – rescission of default judgment – defective service on a body corporate – Rule 39(2)(d) – Rule 449 rescission for judgments erroneously granted in absence of party – reasonableness of delay – fraud allegations not decided at rescission stage.
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15 June 2016 |
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Rescission denied: applicant’s explanation and defence lacked credibility and prospects of success; costs awarded to respondent.
Civil procedure — Rescission of default judgment — r 63 High Court Rules — "good and sufficient cause": reasonableness of explanation for default; bona fides and prospects of defence — Legal practitioner negligence and litigant’s responsibility — Proof of service/filing of further particulars — Loan agreement, bank statements and interest variation clause (in duplum considered).
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15 June 2016 |
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Court ordered restitution of payments made under a contract declared void for illegality, valuing ZW$5bn as £12,800 and awarding £32,800 plus interest and costs.
Contract law — Illegality (void ab initio) — Restitution to prevent unjust enrichment — Status quo ante — Valuation of demonetised currency for restitution — Set-off and damages unavailable where contract is void.
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15 June 2016 |
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Summary judgment granted where respondent's bald denial failed to raise an arguable defence to invoice-backed claim.
Civil procedure – Summary judgment – Prima facie proof by invoices and delivery notes – Bald denial of liability not a bona fide defence – No triable issue raised – Summary judgment granted.
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15 June 2016 |
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Applicant granted interim mandamus van spolie to restore possession; contempt claim against respondent dismissed.
Spoliation (mandamus van spolie) – urgency – unlawful dispossession – officer of court (Sheriff) acting without court authority – restoration of status quo ante – contempt of court claim dismissed for lack of specific coverage.
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15 June 2016 |
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Removal of urgent application to ordinary roll amounted to withdrawal; applicant ordered to pay attorney‑client costs.
Practice and procedure – Urgent applications – Party‑instigated removal from urgent roll equating to withdrawal – wasted costs – award of attorney‑and‑client costs where urgency certification and conduct are baseless; constitutional referral does not automatically suspend cost consequences.
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15 June 2016 |
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Whether a constitutional land-acquisition provision can defeat a prior court order and vested occupation rights.
Constitutional law – land acquisition (s 16B) – retrospectivity and vested rights – effect on prior court orders; constitutional protection of continued occupation (s 291); prohibition on multiple farm alienation (s 293(2)); judicial review of purported s 16B acquisitions.
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15 June 2016 |
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Church election declared invalid due to constitutional breaches, including lack of quorum and procedural irregularities.
Voluntary association – Constitution governs internal elections – AGC quorum requirement – Procedural irregularities vitiating election – Court’s role limited to constitutional interpretation, not making ecclesiastical appointments.
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13 June 2016 |
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Non-release of trust funds on demand without justification creates urgency and entitles the proprietor to immediate remittal.
Trust funds – entitlement to release on demand – urgency of application where practitioner refuses remittal – need for feenote or court order to justify withholding – referral to Law Society and delay.
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13 June 2016 |
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An arbitral award registered against a party lacking legal personality is void; legal capacity may be raised at any stage.
Arbitration and enforcement — registration of arbitral awards — legal capacity of parties — award and registration against non-legal persona a nullity; locus standi/legal capacity may be raised at any stage; costs discretion where lay litigants mistaken.
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10 June 2016 |
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Court-ordered liquidator must obtain court leave to sue; unliquidated counter-claims require leave; set-off applies only to liquidated mutual debts.
Companies Act – liquidation by court – s 221(2)(a) require court leave for liquidator to sue; s 218(4)(a) Master’s authority limited to cases where Master appointed liquidator and to urgent collections; counter-claim against company in liquidation requires leave under s 213; set-off doctrine applies only to mutual, liquidated debts; unliquidated claims must be counter-claims.
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8 June 2016 |
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Applicants’ rescission under r449 failed; court required common law rescission with prima facie solvency and joinder of creditors, application dismissed.
Companies Act s227 – setting aside/staying winding‑up proceedings; distinction between supervening events and procedurally assailable orders; rescission under common law requires reasonable explanation and prima facie solvency; Order 49 r449 not appropriate for assailable winding‑up orders; joinder of creditors; leave to sue under s213.
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8 June 2016 |
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Failure by a respondent to file heads under r 238(2a) triggers an automatic bar; proviso does not excuse late filing.
Civil procedure – High Court Rules r 238(2a) – heads of argument – exclusion of vacation days – peremptory automatic bar for late filing – proviso narrowly construed – condonation required for late filing.
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8 June 2016 |
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Application for admission as amicus curiae dismissed for lack of leave, procedural non‑compliance and apprehended collusion.
Procedure — Amicus curiae — locus standi/real and substantial interest — judicial management/stay requiring leave — High Court Rules 226 & 241 compliance — s 167(c) Constitution and leave of Constitutional Court — impartiality/collusion concerns.
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8 June 2016 |
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A pre-trial judge may enter judgment where lease breaches are established and no genuine triable issues remain.
Pre-trial conference — Judge may enter judgment where no triable issues; Lease — unauthorised alterations and subletting breach; Rule 182.
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8 June 2016 |
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Dismissal for want of prosecution upheld where respondent gave no reasonable explanation and flagrantly breached court rules.
Civil procedure — want of prosecution — r 236(3) & (4) — upliftment of bar — condonation — requirements: reasonable explanation, prospects of success, bona fides; flagrant breach of rules justifies dismissal.
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8 June 2016 |
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Appeal against attempted murder conviction and sentence dismissed; trial court's factual findings and sentence affirmed.
Criminal law – attempted murder – conduct of accused (driving at high speed with victim clutching bumper; overtaking) – assessment of credibility and corroboration – substantial compliance with notice of appeal – appellate interference with sentence limited to misdirection, irregularity or shockingly excessive sentences.
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8 June 2016 |
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Court refused to interdict ministerial invocation of s51, citing statutory power and appeal remedy to Labour Court.
Labour law — section 51 Labour Act — Minister's power to supervise trade union elections where national interest demands — interim interdict — availability of appeal to Labour Court under s51(3) — balance of convenience.
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8 June 2016 |
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Delay and provocation mitigated sentence, but a short custodial term was required to uphold the constitutional value of life.
Criminal law — Culpable homicide — Sentence — Prosecutorial delay and right to fair trial — Mitigation: plea, first offender status, provocation, assistance to victim — Constitutional protection of life — Partial suspension of sentence.
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7 June 2016 |
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Sentence of $200 for culpable homicide caused by driving on wrong side was manifestly too lenient and was increased with a suspended term.
Criminal law — Culpable homicide (s 49) — Sentence review — Manifestly lenient fine — Road traffic negligence: crossing centre line, excessive speed, death and multiple injuries — Substitution of heavier fine and wholly suspended custodial term.
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6 June 2016 |