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Citation
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Judgment date
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| 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 peaceful possession for mandament van spolie; claim dismissed with costs.
Property law — Spoliation (mandament van spolie) — requirements: peaceful and undisturbed possession and unlawful deprivation — evidentiary sufficiency — joint possession — costs.
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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 must be registered for enforcement; an appeal does not automatically suspend execution.
Arbitration — Registration of arbitral award as High Court order — Enforcement — Appeal to Labour Court does not automatically suspend execution — Stay under s92E(3) Labour Act required — Grounds to refuse registration limited to set-aside, stay or Article 36 defects.
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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 |
| April 2016 |
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Applicant granted interim interdict preventing police seizure of vehicle pending ownership determination.
Civil procedure – urgent interim interdict; property and possession dispute; police seizure of potential exhibit; balance of probabilities for interim relief.
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29 April 2016 |
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Court ordered equal 50:50 division of the matrimonial home, custody to the applicant and limited maintenance by the respondent.
Matrimonial property – Division and apportionment under s 7 Matrimonial Causes Act – Recognition of direct and indirect contributions (homemaking and childcare) – 50:50 division ordered – Custody and access – Maintenance obligations, valuation and buy-out procedure.
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28 April 2016 |
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A trustee cannot avoid execution by denying legal personality where it acted as owner and employer; attached property executable.
Execution and attachment – school trading name and legal personality – owner and employer status – alter ego/approbation and reprobation – executability of attached assets – costs on higher scale.
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28 April 2016 |
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Written tenancy letter constituted the lease; tenant liable for arrears and holding-over despite municipal licence issues.
Lease — written tenancy letter — landlord’s duty to deliver premises fit for purpose — municipal licensing requirements — tenant’s withholding of rent — holding-over damages — cancellation and ejectment — counterclaim for loss of profits dismissed.
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27 April 2016 |
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Plaintiff's speculative, non-expert evidence failed to prove negligence causing the fire; absolution granted and costs awarded.
Delict/negligence — cause of fire; need for expert evidence to establish causation; res ipsa loquitur not applicable; absolution from the instance; failure to prove prima facie case.
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27 April 2016 |
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A Labour Court order setting aside the foundational arbitral award precluded registration of a subsequent related award.
Arbitration — registration of arbitral award — High Court’s role limited to registrability — effect of Labour Court order setting aside earlier award — Rule 229C — Article 34 (setting aside and public policy).
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27 April 2016 |
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Mandament van spolie denied where applicant surrendered vehicles, delay suggested acquiescence, and dispute was contractual.
Spoliation (mandament van spolie) — possession and unlawful deprivation — surrender/indemnity form — acquiescence through delay — employment/contractual dispute — alternative remedies.
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27 April 2016 |
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Sale disguised as lease was illegal; defendant entitled to remain pending payment for improvements and statutory protections barred eviction.
Property law – sham transaction: sale disguised as lease to avoid s 39 subdivision-permit requirement – illegality (s 39 RTCP Act) – ex turpi causa bars enforcement; commercial rent regulations (s 22 SI 676/1983) – statutory tenant protection; improvement lien and unjust enrichment; in pari delicto considered.
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27 April 2016 |
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Applicants failed to prove wilful breach of a consent order; generator delivery constituted a new cause of action, not contempt.
Contempt of court — consent order — sealing of entrance and cessation of building operations — requisites of contempt (order; service; non-compliance; wilfulness and mala fides) — evidential burden and standard of proof — new cause of action vs ongoing breach — regularisation under s27 Regional Town and Country Planning Act.
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27 April 2016 |
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Applicant failed to prove extraordinary hardship or make a reasonable, bona fide offer; application dismissed with attorney–client costs.
Execution — attachment of dwelling; Order 40 r 348A(5a) and (5e) — interpretation of conjunctive "and"; requirement to show great hardship plus one of subrule (5e)(b) grounds; reasonableness and bona fides of settlement offers; abuse of process; attorney–client costs.
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27 April 2016 |
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Sentence for intercourse with a 14‑year‑old was manifestly lenient; review withheld certificate for inadequate deterrence and public interest consideration.
Criminal law — Sexual intercourse with young person — Sentencing — Application of Beadle guide and Zinn triad — Public interest and deterrence — Manifestly and shockingly lenient sentence — Review by withholding certificate.
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27 April 2016 |
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Fixed-term contracts ended; former employees unlawfully occupied employer premises—court ordered interim removal and restraint.
Employment law – fixed-term contract – effluxion of time – tacit renewal by conduct – employer not obliged to provide actual work – unlawful self-help by former employees – interim possession/eviction relief.
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27 April 2016 |
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Applicant’s contractual right of first refusal is valid; sale and transfer to a third party interdicted pending its proper exercise.
Property law – Right of first refusal/pre-emption – Interpretation and enforcement of contractual clause providing negotiated price or valuer-determined market price; requirement of full disclosure and honest dealing; interim interdict to prevent transfer pending exercise of pre-emptive right; credibility of affidavits and consequences of falsehoods.
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27 April 2016 |
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Application to be excused from pro deo appointment dismissed for failure to prove unfair or defective allocation system.
Criminal procedure – pro deo appointments – allocation of pro deo counsel – registry allocation system – judicial notice of administrative practice – insufficiency of founding affidavit to establish unfair or discriminatory appointment.
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20 April 2016 |
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Senior bank employee had implied and ostensible authority; bank liable on guarantees despite alleged unproven fraud.
Bank guarantees – actual, implied and ostensible authority of senior employee – reliance on façade of regularity – statutory corporation’s enabling Act and delegation – insufficiency of unproven fraud allegations to defeat third-party reliance.
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15 April 2016 |
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Delay in seeking urgent stay rendered application non-urgent; verbal sub-tenancy undermined prospects of success.
Civil procedure – Urgency – Certificate of urgency – Delay and negligent abstention to act – Kuvarega principle; Stay of execution – rescission pending – prima facie prospects – verbal sub-tenancy where head lease prohibits sub-letting.
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13 April 2016 |
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Plaintiff lacked standing and failed to prove loss; absolution from the instance granted with costs.
Civil procedure – Absolution from the instance – Locus standi – Separate juristic personality of a company – Proof of damages – Plaintiff failed to establish loss; absolution granted.
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13 April 2016 |
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Absolution granted where plaintiff failed to prove a concluded, non‑vague agreement and sued incorrect parties.
Contract formation — vagueness and lack of ad idem; unsigned/subject-to-negotiation agreement; failure to join correct payor; absolution from the instance for want of evidence.
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13 April 2016 |
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Applicants despoiled of specified mining claims entitled to interim restoration of possession despite defective urgency certificate.
Contract mining agreement – scope of agreement – claims in Appendix I – whether Tolrose Mine covered; Spoliation – restoration of possession – interim relief; Urgent procedure – defective certificate of urgency and court’s discretion to hear merits despite non-compliance; Procedural objections – in limine points versus merits of the case; Enforcement – Sheriff empowered to enlist police assistance.
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7 April 2016 |
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Court reduced excessive cumulative stock-theft sentences, affirming concurrent sentencing under s343 and substituting shorter effective terms.
Criminal law — Stock theft — Mandatory minimum sentences under s114(2)(e) — Concurrent versus consecutive sentences — s343 Criminal Procedure and Evidence Act — Sentencing discretion — Excessive cumulative sentences set aside on review and substituted.
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7 April 2016 |
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Circumstantial evidence established the accused’s guilt for murder with constructive intent; life imprisonment imposed.
Criminal law – Murder – Circumstantial evidence – Self‑defence – Theft after killing – State summary under s 66(6) – Warned and cautioned statement not relied upon – Sentence: life imprisonment.
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7 April 2016 |
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First accused convicted of culpable homicide for negligently assaulting and failing to seek treatment for deceased; second accused acquitted.
Criminal law – Murder v culpable homicide – constructive intent and foreseeability – negligence in assault and failure to seek medical attention – evidentiary weight of external post‑mortem – acquittal where accused’s story is reasonably possibly true.
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7 April 2016 |
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A sheriff cannot sell a whole indivisible co-owned property when a writ directs attachment of only the judgment debtor's undivided half.
Co-ownership; execution of judgment against undivided share; sheriff exceeding writ; protection of co-owner's real rights; incompetence of writ attaching an undivided half in indivisible property; s71(3) Constitution - protection from compulsory deprivation.
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6 April 2016 |
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Court refused to set aside arbitral award, finding no public-policy breach or procedural unfairness by the arbitrator.
Arbitration — setting aside award — public policy — palpable inequity standard — breach of natural justice — limited judicial review under Model Law — factual findings of delay and failure to lodge bill of entry — contributory negligence not amounting to public policy breach.
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6 April 2016 |