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Citation
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Judgment date
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| December 2017 |
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Bail pending appeal refused where guilty plea was properly canvassed, appeal had poor prospects, and abscondment risk was high.
Bail pending appeal — prospects of success vs risk of abscondment; guilty plea — proper canvassing of essential elements; mandatory minimum sentence — "special circumstances"; afterthought defence and mitigation evidence.
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13 December 2017 |
| November 2017 |
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Per stirpes succession permits grandchildren of a predeceased child to inherit by representation under both common and customary law.
Succession law — per stirpes (representation) — intestate succession — applicability under common law and customary law — Administration of Estates Act s68F — vesting at death — grandchildren of predeceased child entitled to inherit.
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29 November 2017 |
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29 November 2017 |
| September 2017 |
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Conviction upheld but review certificate withheld due to defective record, improper restitution order, and manifestly lenient global sentence.
Criminal law – fraud and theft of trust property – recording of plea and endorsement of sentence – requirement to endorse sentence and record individual sentences – restitution to corporate complainant (not representative) – manifestly lenient/global sentence – review and withholding of certificate.
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27 September 2017 |
| August 2017 |
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Court substituted prospecting convictions for possession where facts showed ore removal and protected unrepresented accused facing mandatory sentences.
Criminal law – Mines and Minerals Act – distinction between prospecting and possession/removal of ore – plea of guilty procedure – rights of unrepresented accused facing mandatory minimum sentences – substitution of conviction and sentence on review.
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3 August 2017 |
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Accused convicted of murder; provocation and diminished responsibility not established; sentenced to 20 years imprisonment.
Criminal law — Murder v provocation — Whether loss of self-control/diminished responsibility established — Credibility of child witness — Post-mortem evidence (head trauma) — Foreseeability of death/constructive intent (s47(1)(b)).
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2 August 2017 |
| July 2017 |
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Accused convicted of murder; provocation and self-defence rejected, voluntary intoxication mitigatory only, sentenced to 15 years.
Criminal law – Murder (s 47(1)(b)) – Provocation and self‑defence – Constructive intent/realisation of risk – Voluntary intoxication mitigatory only – Gender‑based violence considered in analysis and sentencing.
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31 July 2017 |
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Rescission granted for a default judgment where a fundamental identity error occurred; execution judgment not rescindable as applicant attended the hearing.
Civil procedure – Rule 449(1)(a) – Rescission of judgments erroneously sought or granted; identity/joinder errors; presence of party bars rescission; res judicata requires same parties; delay in bringing rescission applications.
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26 July 2017 |
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Registration of an arbitral award is proper where the award is extant and duly quantified; jurisdictional objections should be pursued by appeal or review.
Arbitration — Registration of arbitral award — s98 Labour Court Act — requirements for registration (party, award relates, certified copy) — award must be extant — quantification/amendment of award — functus officio and jurisdiction to correct/quantify — prescription and abuse of process.
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26 July 2017 |
| June 2017 |
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Misnaming of the principal debtor was non-material and correctable; rescission of the default judgment refused.
Rescission of judgment – Rule 449(1)(a) – misdescription of party name – non-material error – correction vs rescission; locus standi of merged/liquidated company; proof required to impugn default judgment.
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30 June 2017 |
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An out‑of‑time purported amendment introducing a fresh appeal against conviction is a nullity; mistake of law did not excuse mandatory sentence.
Criminal procedure – Appeals – Amendment of notice of appeal – Distinction between permissible amendment and introduction of a fresh, out‑of‑time appeal – Rules 6 and 22; Gold Trade Act – Possession of gold without permit – Mandatory minimum sentence – Reasonable mistake of law not established – "Special circumstances" absent; Review powers – Not exercised where appeal is incompetent.
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29 June 2017 |
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Court refused absolution, finding prima facie locus standi and an acknowledgement of debt, and ordered the trial to continue.
Civil procedure — Absolution from the instance — Test at close of plaintiff's case — Locus standi of parent company to sue for subsidiary’s claim — Acknowledgement of debt — Prima facie evidence — Trial to proceed.
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28 June 2017 |
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Municipal by‑laws do not permit removal of leased advertising structures without judicial determination of contract termination.
Contract/Lease law – Renewal option and tacit continuation – Municipal by‑laws – Interim interdict – Urgency – Extra‑judicial termination prohibited; court must determine lawful termination.
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28 June 2017 |
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Plaintiff’s failure to discharge debts and cancelation of security prevented performance; no implied obligation to place DOCs existed.
Contract law — Implied terms — Whole-agreement clause; Grower’s obligations to order DOCs — Prevention of performance / mora debitoris — Anticipatory breach — Mitigation of loss — Counterclaim for interest and collection commission — Costs on higher (attorney/client) scale.
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28 June 2017 |
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Urgent application to stay eviction dismissed for lack of urgency and absence of locus standi.
Civil procedure — Urgent chamber application — urgency requirements; Locus standi — subtenant status and right to litigate where cession invalid; Eviction — effect of magistrate’s eviction order and inability to restore status quo after execution absent palpable miscarriage of justice; Estate administration — review available only to persons with direct legal interest.
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21 June 2017 |
| May 2017 |
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An agreement of sale creates only personal rights; a judgment creditor's caveat prevails absent special circumstances.
Property law — agreement of sale vs registration — real rights in immovable property — judgment creditor’s caveat and judicial lien — upliftment of caveat requires special circumstances.
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31 May 2017 |
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Acquisition of agricultural land under section 72 by Gazette publication is valid; applicants failed to prove illegality or bias.
Constitutional and administrative law — Acquisition of agricultural land under s72 — Gazette publication suffices as notice — Land Acquisition Act s5 proviso — judicial review available for illegality, irrationality or procedural impropriety — compensation limited to prior improvements.
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31 May 2017 |
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Uncorroborated verbal agreements plus the written mandate sufficed to establish a prima facie case; absolution dismissed.
Civil procedure – absolution from the instance – prima facie case required; Interpretation of written mandate limiting commission; Alleged verbal agreement to vary written mandate – evidential sufficiency of uncorroborated testimony.
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31 May 2017 |
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Amendment allowed to correct trust-account error; mis-citation not fatal and prescription not shown to bar the claim.
Civil procedure – amendment of pleadings (Order 20 r 132) – mis-citation of rule not fatal – prescription (Prescription Act s 16) – debt due when creditor aware of debtor and facts – trust account; release of purchase money before transfer.
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31 May 2017 |
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Appellant failed to prove ownership in interpleader; acquisition included liabilities and appeal dismissed with costs.
Interpleader; onus on claimant to prove ownership of attached property; acquisition of business as going concern includes liabilities and trade name; imperfect citation/trading style; presumption goods at judgment debtor's address belong to debtor; costs on attorney-and-client scale for dishonest conduct
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31 May 2017 |
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Summary judgment refused because an innocent purchaser raised a bona fide defence and triable issues despite prior judgment.
Civil procedure – summary judgment (Rule 64) – requirement of no bona fide defence; Property law – double sales; innocent purchaser and indefeasible title; res litigiosa and effect of prior judgment; balance of equities.
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31 May 2017 |
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Single-incident domestic assault incorrectly charged under Domestic Violence Act; conviction substituted to ordinary assault and sentence reduced.
Criminal law — Charge framing under Domestic Violence Act — Correct citation of s 3(1)(a) read with s 4(1) — Domestic Violence Act intended for repeated/patterned abuse — Single-incident domestic violence may be ordinary assault — Substitution of conviction and sentence on review; mitigation where medical evidence absent.
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31 May 2017 |
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Failure to apply Road Traffic Act s64(3) and to establish negligence in plea rendered the sentence manifestly inadequate.
Road Traffic Act s64(3); culpable homicide arising from driving; plea proceedings—requirement to establish particulars and degree of negligence; mandatory licence cancellation and driving prohibition; sentencing review and remittal.
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31 May 2017 |
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Interest accrues on judgments silent on interest, but must be recovered by appropriate proceedings; existing writs cannot be used to seize for interest.
Prescribed Rate of Interest Act s 5 — interest on judgments silent on interest — interest accrues but recovery requires separate/court process; writ of execution only enforces what the judgment orders; agent liability absent fraud.
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31 May 2017 |
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Sentencing for culpable homicide balancing negligence, violence, guilty plea and first‑offender mitigation.
Culpable homicide; sentencing — balancing recklessness and brutality against guilty plea and first‑offender status; limited mitigation from intoxication or provocation.
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30 May 2017 |
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Summary judgment granted where debtor’s email acknowledged the debt and no proof of payment was produced.
Civil procedure — summary judgment — bona fide defence — acknowledgment of debt — interruption of prescription — condonation of procedural defect under r 4C — sufficiency of corporate citation as "body corporate".
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26 May 2017 |
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A convicted appellant was granted bail pending appeal after showing reasonable prospects of success and low abscondment risk.
Bail pending appeal – s 123 Crim. Proc. & Evid. Act – s 115C burden on convicted appellant to show interests of justice on balance of probabilities – prospects of success – credibility findings and misdirection – risk of abscondment; military service as tie to jurisdiction.
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26 May 2017 |
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Failure to comply with Order 40 requirements for objecting to a sheriff's sale defeats an application to set aside confirmation.
Execution — Sale in execution — Order 40 r 356, r 359 — Requirement to file timeous, competent objection to confirmation — Sheriff acts under writ and within rule‑book — Informal letters do not stay execution — Application must stand on founding affidavit.
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25 May 2017 |
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Court granted leave to execute against a company under provisional judicial management where execution would not defeat its purpose.
Companies Act s301(1) – provisional judicial management – stay of execution – court's discretion to grant leave to execute – balancing creditors' interests – enforcement against banks.
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24 May 2017 |
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Court finds purported sale to nephew a sham; awards plaintiff 35% of matrimonial stand and specific movable items.
Family law – Matrimonial property – Division on divorce under Matrimonial Causes Act s 7(4) – Sham/secret sale to third party to defeat spouse’s claim – Evidentiary burden to show lack of bona fides – Valuation and buy-out/sale mechanism.
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24 May 2017 |
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Customary shelter rights are personal, not real, so a purchaser may evict occupying family members; transfer cannot be set aside.
'Rei vindicatio' – ejectment – owner’s right to exclusive possession; customary law – Shona customary right to shelter – personal right v. real right; sale in execution – procedural objections and joinder; counterclaim irregularity; costs on attorney-and-client scale.
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24 May 2017 |
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Provisional spoliation order granted where school tuck‑shop lessee was unlawfully deprived of possession by added locks.
Property law — Spoliation — requirements of peaceful and undisturbed possession and unlawful deprivation; Commercial Premises (Rent) Regulations SI 676/1983 — definition of commercial premises; s 24 prohibition on self-help; s 22 notice requirements; provisional spoliation order granted.
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24 May 2017 |
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Urgent interdict to prevent filling CEO post refused for lack of urgency and existence of alternative remedies.
Urgent applications — criteria for urgency — irreparable prejudice — alternative remedies — employment law: suspension, withdrawal of disciplinary charges, purported termination — interim interdict to prevent appointment to office.
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24 May 2017 |
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Plaintiff's rei vindicatio succeeds; defendant's fraud claim unproven; eviction granted, holding-over damages denied.
Property law – rei vindicatio – proof of ownership and title – allegations of fraud in prior sale – innocent purchaser protection – eviction – holding-over damages not established.
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24 May 2017 |
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Applicant, in default proceedings, established entitlement to adultery damages (contumelia and loss of consortium) and was awarded US$8,000 with interest and ordinary costs.
Adultery damages — contumelia and loss of consortium — default judgment under Order 32 r 226(2)(d) — quantum factors (status, duration of marriage, deterrence, comparable awards) — costs: ordinary versus legal practitioner and client scale.
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24 May 2017 |
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Failure to pay for agreed services does not trigger arbitration; special plea dismissed and costs awarded to applicant.
Contract law – dispute resolution clauses – arbitration and mediation – whether non-payment constitutes a dispute requiring arbitration – court jurisdiction – abuse of process – contractual costs provision (legal practitioner and client).
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22 May 2017 |
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Registered owners' real rights prevail; untransferred purchaser has only personal contractual remedies against the seller.
Property law – rei vindicatio – registered ownership prevails over untransferred purchaser's personal contractual rights; remedy against seller for breach of contract; court may dismiss unopposed application where legal principles defeat claim.
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22 May 2017 |
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Interlocutory interdict granted to restrain farming on disputed land pending final determination; Land Commission does not oust High Court jurisdiction.
Interlocutory interdict — requirements (prima facie right, irreparable harm, absence of alternative remedy, balance of convenience) — lis alibi pendens — Land Commission jurisdiction does not oust High Court — boundary dispute — interim relief pending final determination.
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22 May 2017 |
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Application not urgent and spoliation not shown where goods were removed under a valid writ and interpleader remedy available.
'Urgency' – requirements for abridgement of court rules; Mandament van spolie – two requirements (peaceful possession and forcible/wrongful dispossession); Execution of writ – lawful execution negates spoliation; Interpleader proceedings (Order 30) as alternative remedy; Delay in instituting proceedings defeats urgency.
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19 May 2017 |
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Appellant failed to prove ownership; directors’ inter‑company conduct justified refusing to uphold interpleader claim and appeal was dismissed with costs.
Company law – separate legal personality – interpleader – ownership of assets – execution against judgment debtor – lifting the corporate veil – directors’ conflict and connivance – interim relief not definitive on ownership.
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19 May 2017 |
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Attempted murder conviction upheld; sentence found unduly lenient and review certificate withheld.
Criminal law – Attempted murder – Constructive intent (subjective foresight) – Actus reus and mens rea established by pouring boiling water – Sentencing review – Unduly lenient sentence – Review and withholding of certificate.
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19 May 2017 |
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Private association meetings are not subject to POSA public‑meeting permission; police may be notified but cannot prohibit them.
Public Order and Security Act – meaning of "public meeting" and "meeting" – private association meeting not a public meeting – police role limited to notification and security, not permission – unlawful interference with constitutional rights to assembly and association.
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19 May 2017 |
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A default judgment against one co-defendant does not extinguish the respondent’s claim against the other co-defendant.
Magistrates' Court — Default judgment — Order 11(4)(9) — Continuation against non-defaulting defendants; Functus officio — default judgment not final on merits; Stated case — Order 19 — admissions dispense with proof of quantum; Pleadings — liberal approach in magistrates' court; Stipulatio alteri — no vinculum juris without offer and acceptance; Costs — no attorney-and-client costs awarded.
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18 May 2017 |
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Delay without satisfactory explanation justifies dismissal under r 236(3); poverty and subsequent filings did not excuse default.
Rule 236(3) – dismissal for want of prosecution – good and sufficient cause – adequacy of explanation for delay (poverty not automatically excusable where legal representation remains) – relevance of prospects of success – inability to purge default without leave.
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17 May 2017 |
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Applicant holding the operating licence obtained a provisional interdict to restore licensed premises and restrain respondents' interference.
Administrative/licensing law – operating licence held by trading individual – locus standi – urgency – interim interdict: prima facie right, irreparable harm, absence of alternative remedy, balance of convenience – unlawful eviction and alteration of licensed premises.
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17 May 2017 |
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Court granted interim interdict to protect management rights and members’ subscription funds pending final determination.
Management agreement; interim interdict; urgency; Form 29B; prima facie right; irreparable harm; preservation of status quo; joinder where respondent controls disputed funds.
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17 May 2017 |
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Executor dative entitled to interim stay preventing confirmation of sale where validity of directors’ appointment and hypothecation is disputed.
Company law – validity of directors’ appointment – hypothecation of company property – executor dative’s locus standi – stay of execution pending declaratory action – urgency and interdictory relief to prevent confirmation of sale in execution.
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17 May 2017 |
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Urgent anti-dissipation relief dismissed for lack of urgency, absence of legal interest, material non-disclosure and abuse of process.
Practice — Urgency — requirements for certificate of urgency; Anti-dissipation interdict — need for prima facie evidence of likely dissipation; Interim relief — must differ in effect from final relief; Abuse of process and material non-disclosure; Costs — attorney and client scale.
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17 May 2017 |
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Court declined to dismiss a stay application for want of prosecution, preserving a substantive rescission/joinder challenge for hearing.
Civil procedure – Dismissal for want of prosecution – r 236(3) High Court Rules – Court’s discretion – Delay and immediate filing after notice – Procedural irregularity/default judgment – Interrogation under r 449 – Costs in the cause.
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17 May 2017 |
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Claimant failed to prove ownership of an attached vehicle; appeal dismissed for lack of merit.
Civil procedure — interpleader — proof of ownership on balance of probabilities — authenticity and alteration of documentary evidence — attachment in execution — possible collusion — costs.
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17 May 2017 |