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Citation
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Judgment date
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| February 2017 |
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No binding contract: respondent withdrew its offer before the applicant communicated acceptance, claim dismissed.
Contract formation — offer and acceptance; communication of acceptance; withdrawal of offer; evidence of procurement and payment; post-withdrawal conduct; costs
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8 February 2017 |
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Defective and inadequately particularised sheriff’s returns defeated full default judgment; partial judgment granted against certain defendants.
Civil procedure – service of process – Order 5 rr 39, 40 and r 42(2) – defective Sheriff’s returns – defective service renders process of no force or effect – default judgment partially refused; amendments to summons/declaration must be initialled
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8 February 2017 |
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The plaintiff was awarded past medical costs and general damages; future medical expenses claim dismissed for lack of proof.
Motor-vehicle accident — quantum of damages — past medical expenses agreed; future medical expenses dismissed for lack of quotations — hip dislocation; 30% permanent disability accepted — awards for disability, pain and suffering, and loss of amenities — absolution from instance on unproven future expenses
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8 February 2017 |
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Leave of court is required to commence or continue proceedings against a company under judicial management.
Companies Act s301(1) – judicial management – meaning of "stay" – whether leave of court is required to commence or continue proceedings against a company under judicial management – statutory interpretation and protective purpose of judicial management orders
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8 February 2017 |
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A common mistake about ownership rendered the sale and cession void ab initio; plaintiffs entitled to restitution and costs.
Property law — cession — requirements for valid cession (agreement, right inhering in cedent, formalities) — common mistake as to subject matter — double sale — agreement and cession void ab initio — restitution/unjust enrichment remedy
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8 February 2017 |
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Applicant's late/misrouted challenge to arbitrator barred by Arbitration Act time limits; declaratory approach dismissed with costs.
Declaratory relief in labour disputes; Arbitration Act Articles 12 and 13 — challenge to arbitrator; 15‑day time limit for written challenge; non‑joinder of appointing authority not fatal; misrouted/time‑barred challenge; abuse of process
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8 February 2017 |
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Applicant lacked standing; customary unions solemnised after death were valid, so declaratory relief was dismissed.
Customary marriages — validity and solemnisation — effect of lobola and prior cohabitation — bigamy — declaratory relief — locus standi under s 14 High Court Act — joinder of interested parties — inadmissible new evidence in heads of argument
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8 February 2017 |
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Driver partially liable; sudden slippery conditions and a stationary truck substantially contributed to the accident.
Delict — negligence vs sudden emergency (act of God) — apportionment of contributory causes — vicarious liability of employer — assessment of damages for personal injury
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8 February 2017 |
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Court confirmed a final interdict protecting the applicant's mining possession; weekends and public holidays excluded in the 90‑day computing period.
Civil procedure — confirmation of provisional order — respondent entitled to oppose without leave; dies induciae — 90 days excludes Saturdays, Sundays and public holidays (Const. s336; Interpretation of Statutes Act s33; HCR 4A); final interdict — requirements (clear right, irreparable harm, no alternative remedy) satisfied by mining certificate and s47 Mines and Minerals Act rights; permanent interdict granted; costs
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8 February 2017 |
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Cooperative’s duly elected committee may evict third‑party occupiers under an unrevoked offer letter, but paid members must be allocated houses.
Cooperative law – locus standi of elected management committee; Offer letter as contractual title to agricultural land; Rural district council permit/lease invalid for land held under offer letter; Eviction – cooperative entitled to evict third‑party occupiers but must provide houses to fully paid members
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8 February 2017 |
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Court condoned late leave application and granted leave to appeal despite finding prospects of success to be poor.
Interlocutory appeal — leave to appeal — condonation for late application — failure to make oral application — absolution from instance — prima facie standard at close of plaintiff's case — court's discretionary power under procedural rules — interests of justice.
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8 February 2017 |
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Posting a crossed cheque to the address supplied by the employer constituted payment and shifted the risk to the plaintiff; claim dismissed with costs.
Pensions law — payment by cheque — postal delivery deemed delivery — risk passes on presentation; crossed/non-negotiable cheque — paying bank must pay to banker; employer's instruction to pension fund — fund discharged its onus when cheque posted to address provided.
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8 February 2017 |
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Court suspended sale in execution of family home after finding great hardship and a bona fide offer to settle the judgment.
Execution law – Order 40 r 348A(5a) – suspension/postponement of sale in execution of dwelling – requirement of "great hardship" – bona fide and reasonable offer to settle judgment – hearsay inadmissible – court not to decide merits of rescission in r 348A application.
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8 February 2017 |
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Convictions confirmed; robbery sentence confirmed; attempted rape sentence manifestly lenient and certificate withheld.
Criminal law – Attempted rape – sentence manifestly lenient – s192 Criminal Law Code (attempts attract same penalty as completed offence) – magistrates’ sentencing jurisdiction (s50, s51 Magistrates Court Act) – role of regional magistrates in serious sexual offences.
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8 February 2017 |
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Deliberately driving into a crowded area made death foreseeable; appellant's high moral blameworthiness justified imprisonment; appeal dismissed.
Culpable homicide – foreseeability of death – objective test of foreseeability – moral blameworthiness – sentencing: deterrence and retribution – mitigation and alternative sentences (community service/fine) – vehicular deaths in crowded areas.
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8 February 2017 |
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A spoliation order was granted after the respondent unlawfully occupied the applicant’s registered mining claims despite later registration.
Spoliation – mandament van spolie – requirements of peaceful and undisturbed possession and illicit dispossession – urgency – registration under Mines and Minerals Act not a defence to self-help dispossession; ownership disputes for mines authority/merits process
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7 February 2017 |
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A temporary public-health ban on street vending was lawful; the applicant failed to establish entitlement to interdict.
Public health measures – temporary ban on street vending – limitation of constitutional rights under s 86 – procedural fairness under s 68 – freedom from arbitrary eviction (s 74) not engaged – evidentiary burden for interdict – locus and identification of beneficiaries.
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7 February 2017 |
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Application dismissed for failure to properly identify, cite and serve respondents, rendering any order ineffective.
Urgent application; defective citation and identification of parties; orders bind only properly cited and served parties; appearance without authority; failure to move against defaulting respondent
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3 February 2017 |
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Magistrate improperly excused a compellable witness and prematurely discharged the accused; proceedings set aside and remitted for trial de novo.
Criminal procedure — Competence and compellability of witnesses (ss 244–245 Criminal Procedure and Evidence Act) — Witness cannot decline compulsory testimony if competent — Discharge/acquittal by magistrate only proper at close of State case after defence application rules — High Court review powers (s 29(2) High Court Act) — Set aside and remit for trial de novo.
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3 February 2017 |
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Plaintiff's contradictory evidence and unproven quantum warranted absolution from the instance and dismissal of the claim.
Civil procedure — Absolution from the instance — sufficiency of plaintiff's evidence; documentary contradiction of oral evidence; burden on quantum; credibility of invoices and rates.
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3 February 2017 |
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An estimate of fees is not a fixed agreement; taxed costs are enforceable unless reviewed under Order 38 r 314.
Legal fees — estimate versus agreed fee — taxation of bill of costs — venue of taxation — review under Order 38 r 314 required to challenge taxing officer’s decision — taxed bill enforceable unless set aside
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2 February 2017 |
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Assets acquired in a tacit universal partnership are distributable despite being registered in third parties' names.
Family law — Tacit universal partnership arising from unregistered customary union — Distribution of partnership assets — Assets registered in third parties’ or children's names can be partnership property — Proof of contribution and credibility of parties — Transfer order and apportionment of transfer costs
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2 February 2017 |
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Applicant entitled to court-ordered specific performance to compel sale of matrimonial properties and authorise sheriff to sign if respondent uncooperative.
Family law — Enforcement of consent divorce order — Specific performance to compel sale of matrimonial properties — "Sell to best advantage of the parties" means open-market sale for mutual benefit — Points in limine (incompetence, non-disclosure, disputes of fact) dismissed — Court may authorise sheriff to sign transfer documents if party uncooperative
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2 February 2017 |
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Court granted divorce, awarded custody to the plaintiff, apportioned spousal assets and excluded an operational company from the marital estate.
Divorce — custody and access — maintenance order retained; Division of spousal assets — assets acquired pre- and during marriage included; Companies as acquisition vehicles — separate legal personality respected; Matrimonial home awarded to custodial parent; Buy-out and sale procedures for shared stand
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2 February 2017 |
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A customary marriage contracted after an existing civil marriage is invalid; applicant is not a surviving spouse or sole beneficiary.
Customary marriage — validity where preceded by civil marriage — s 68(3) Administration of Estates Amendment Act No.6/1997; Surviving spouse status — intestate succession; Property rights — assets acquired during subsisting civil marriage; Relevant authorities: Makwiramiti v Fidelity; Lucy Ncube v Marble Ncube; Timbe v Ngonidzashe
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2 February 2017 |
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Insurer bound only to statutory, currency‑specific limits of a pre‑2009 policy; rescission affects only the applying defaulting party.
Road Traffic Act — statutory motor insurance — meaning of "any liability" in s 23(2) — limits prescribed by statutory instruments — S.I.176/07 (ZW$) v S.I.124/09 (US$) — non‑retrospectivity of 2009 notice — rescission of default judgment under r 63 applies only to the defaulting party — currency nominalism and limits on insurer liability.
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2 February 2017 |
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Rescission granted where a registered owner was not cited before property was declared executable; mortgage bond validity requires trial.
Civil procedure – Rescission under r 449 – Default judgment erroneously granted in absence of registered owner – Registered owner’s right to be cited before property declared executable – Affidavit annexures and commissioning – Disputes of fact requiring trial – Mortgage bond validity
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1 February 2017 |
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Defendant's negligence admitted, but plaintiff failed to prove quantum of repair and hire costs; claim dismissed with costs.
Motor accident — liability admitted by driver — insurer involvement and indemnity — claim for further repairs and hiring costs — proof of quantum — failure to produce contracts, receipts or expert evidence — claim dismissed.
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1 February 2017 |
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Conviction set aside as unsafe due to reliance on uncorroborated accomplice evidence, hearsay, and inadequate judicial analysis.
Criminal law – sufficiency of evidence – proof beyond reasonable doubt – accomplice/co-perpetrator evidence – duty to warn – hearsay – prosecutor’s obligations under s 267(1) and impeachment under s 316 – State concession under s 35 High Court Act.
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1 February 2017 |
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High Court granted partial stay of maintenance execution and ordered reduced interim payments pending rescission after Magistrates’ Court clerks refused to file application.
Maintenance — Default judgment — Stay of execution pending rescission application — Urgency — Magistrates’ Court clerks may not refuse to file applications or determine jurisdiction — High Court power to grant interim relief to prevent injustice.
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1 February 2017 |
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Conflicting affidavits and absence of an answering affidavit warrant referral to trial; dismissal was erroneous.
Civil procedure — disputes of fact on affidavits — answering affidavit required to meet new factual assertions — referral to trial appropriate where parties advance conflicting factual versions — incorrect to dismiss then refer; correction to referral ordered.
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1 February 2017 |
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Court ordered immediate readmission and stayed disciplinary proceedings after unlawful, disproportionate suspension despite pre‑trial diversion.
Education law – School suspension – Pre‑Trial Diversion and readmission – Urgent chamber application – Use of Form 29B – Procedural compliance and prejudice – Interim relief and contempt sanction for non‑compliance.
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1 February 2017 |
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Removal of advertising signs without consent or court order constituted spoliation; status quo ante must be restored and costs awarded.
Spoliation (mandament van spolie) – peaceful and undisturbed possession; forcible/wrongful deprivation – prohibition of self-help – restoration of status quo ante – merits/dirty hands irrelevant to spoliation remedy – costs on attorney-client scale.
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1 February 2017 |
| January 2017 |
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Bail pending appeal refused where no arguable grounds and magistrate's credibility and medical findings were sound.
Bail pending appeal – convicted appellant bears onus to show entitlement; prospects of success required; appellate courts reluctant to disturb trial credibility findings; medical evidence (hymenal tears/penetration) supportive; delay and risk of absconding considered.
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31 January 2017 |
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A judicial admission of receipt shifted the onus to defendants to prove payment; failure justified judgment, interest, special execution and punitive costs.
Civil procedure — Judicial admissions — Effect of formal admission in pleadings; burden of proof in civil cases; audit evidence of falsified payment entries; mortgage bond renouncing exceptions; special execution; punitive costs
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27 January 2017 |
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The plaintiff's claim based on an unauthorised sublease was dismissed as illegal and unenforceable; plaintiff ordered to pay punitive costs.
Lease law – Prohibition on sub-letting – Consent of lessor – Illegality of unauthorised sublease – Enforceability of agreements founded on illegal subletting – ex turpi causa non oritur actio; in pari delicto; burden of proof on consent
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27 January 2017 |
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Divorce granted; spouse's indirect contributions justify 50:50 division of jointly registered properties; custody to plaintiff.
Matrimonial property division – s 7 Matrimonial Causes Act – effect of registration of title – indirect/non-financial contributions – joint registration with third party/children – valuation and buy-out options – custody and access
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26 January 2017 |
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Court divides matrimonial property 65:35, grants defendant first option to buy out plaintiff, applying s7 Matrimonial Causes Act factors.
Family law — Divorce — Distribution of matrimonial property under s7 Matrimonial Causes Act — weight of direct and indirect contributions; timing of acquisition; duration of marriage; needs and ability to buy out; effect of pre-trial agreements and witness credibility
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26 January 2017 |
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Delay in reporting did not render the rape complaint inadmissible; credibility findings and sentence were upheld on appeal.
Criminal law — Rape — Report to first available person and timeousness — Voluntariness of complaint — Credibility findings — Appellate deference to trial court — Sentencing discretion; aggravating factors: premeditation, restraint, threats, breach of duty by stepfather.
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26 January 2017 |
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Delay and failure to prosecute created self-induced urgency; urgent stay was refused with costs.
Urgent application — stay of execution pending rescission of default judgment — self-created urgency — failure to prosecute interpleader — no proof of attorney negligence — requirements for urgency not met
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25 January 2017 |
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Appellant failed to prove the terms and charges of a verbal vehicle-tracking contract; appeal dismissed for failure to call crucial witness.
Civil procedure — appeal against factual findings — limited scope for interference; verbal contract — crucial absent contracting representative; hearsay inadmissible to prove transaction terms; burden to prove allocation and quantum of service-provider charges
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25 January 2017 |
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Mandatory interdict granted to protect applicant’s bank account; spoliation claims dismissed for lack of possession.
Urgency — self-created delay — mandatory interdict (mandamus) to protect bank account — mandament van spolie — possession versus ownership of bank deposits and leased equipment
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25 January 2017 |
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Whether a temporary PTA term-sheet displaced the original composite facility; court held the original agreement governed and upheld compound and contractual default interest.
Banking law – composite facility vs. temporary PTA offshore funding – reversion to original facility on default; enforceability of contractual and compound interest; calculation of repayments; default interest and special execution
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25 January 2017 |
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Plaintiff proved a prior verbal hire agreement and partial entitlement under a written hire contract; speculative damages were not proved.
Contract law – existence and proof of verbal hire agreement; interpretation and termination of written equipment-hire contract; pro rata quantum for partial performance; requirement to prove damages; costs limited for negligent or poorly pleaded claims
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25 January 2017 |
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Applicant entitled to interim spoliation relief to restore possession of his allocated subdivision; order limited to that subdivision.
Spoliation — urgent restoration of possession — prima facie case established by offer letter and site inspection — distinction between spoliation and eviction immaterial — role of Minister/Chief Lands Officer in resolving competing resettlement offer disputes — Deputy Sheriff authorised to execute restoration order
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25 January 2017 |
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Qualified privilege for court reporting protected the respondent; applicant’s defamation claim dismissed despite reputational harm.
Defamation — headlines vs. article content; qualified privilege for reporting public court proceedings; public-figure reputation — malice/recklessness standard; damages for reputational harm
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25 January 2017 |
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Lessor’s termination right invalid where exercised in bad faith to benefit a third party, violating procurement rules.
Lease law – pre‑mature termination clause – clause 19 requirements (genuine intention to operate and agreed pro‑rata compensation) – mala fides and abuse of contractual right – public procurement rules – effluxion of time – ejectment
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25 January 2017 |
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Defendants’ unwithdrawn admissions in their plea were binding, entitling the plaintiff to judgment for the unpaid purchase price and interest.
Contract law – sale versus joint venture; pleading – judicial admissions in plea and their evidential effect; arbitration clause and stay when defendant has admitted liability; recoverability of transport charges; entitlement to costs where summary judgment was not sought
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25 January 2017 |
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Fraud and theft convictions against the applicant upheld based on password‑protected cash‑book entries and corroborating evidence.
Criminal law — Fraud: actual v potential prejudice under s136; electronic records and password‑protected cash book — attribution of entries; theft — proof of conversion.
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25 January 2017 |
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Whether funds advanced under a contractual creditor–debtor arrangement constituted trust property for theft prosecution.
Criminal law – Theft of trust property – Elements of trust money – creditor/debtor versus trust relationship – prima facie case and absolution from instance – offers to reimburse and absence of dishonest intention – appellate quashing of convictions.
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25 January 2017 |