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Citation
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Judgment date
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| November 2022 |
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Registered owner entitled to evict occupier who fails to prove payment or entitlement to co-ownership.
Property law – actio rei vindicatio – registered title – burden of proof on balance of probabilities – claim for co-ownership via contribution – registration in Deeds Registry conveys real rights – eviction remedy.
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30 November 2022 |
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Belief in witchcraft is not a defence to murder; provocation requires sudden loss of self-control — convicted and sentenced to 35 years.
Criminal law — Murder — Intention to kill; Provocation — Witchcraft belief not a defence but mitigatory (s101); Provocation requirements (s239) — sudden loss of self-control and no cooling-off; Premeditation and multiple murders as aggravating factors; Late-raised non-pathological criminal incapacity unsupported.
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30 November 2022 |
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High Court set aside a magistrate's cancellation of the respondent's arrest warrant for gross procedural irregularities.
High Court — s 29(4) mero motu review; judicial assistance by counsel — Magistrate procedure — Default enquiry and cancellation of warrant — Functus officio — Gross irregularity and illegality — Judicial independence — Fugitive from justice and dirty hands doctrine — Review and setting aside of proceedings.
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30 November 2022 |
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Confirmed warned‑and‑cautioned statement admissible; both accused convicted of murder and sentenced to 25 years imprisonment.
Criminal law – Murder – Admissibility of confirmed warned and cautioned statement – Confirmation proceedings – Use of extra‑curial confession against co‑accused – Circumstantial evidence and alibi – Aggravating circumstances (robbery, premeditation) – Sentencing under s 47 Code.
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28 November 2022 |
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26 November 2022 |
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Recent possession and reliable identification supported convictions for multiple aggravated robberies; sentence upheld as appropriate.
Criminal law – Robbery (s 126) – aggravated circumstances – use of weapons and serious violence; Identification evidence – identification parade reliability; Recent possession of stolen property as evidential link to robbery; Sentencing – judicial exercise of discretion, deterrence and proportionality in aggravated robberies.
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25 November 2022 |
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A tacit acknowledgment via draft and email established a binding US$ debt; judgment for US$ amount or ZWL$ equivalent, interest and costs.
Acknowledgment of debt – tacit and express acknowledgment – requirements and proof; Currency of obligation – US$ versus ZWL$ – enforceability of US$ obligations post-February 2019; Conversion – use of prevailing foreign currency auction rate; Credibility of witnesses and weight of correspondence as evidence of agreement
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24 November 2022 |
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A sale of shares by a non‑owner is void; the Contractual Penalties Act did not apply and the declaratory claim was dismissed.
Company law – sale of shares – seller without title – nemo dat quod non habet; Contractual Penalties Act inapplicable to share sales; separate corporate personality – veil not pierced
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24 November 2022 |
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Admissible confirmed confession corroborated by evidence; accused convicted of premeditated robbery-murder and sentenced to 25 years.
Criminal law – murder – admissibility of confirmed warned and cautioned statement (s256) – right to silence and adverse inferences (ss189(2),199) – conviction on confession corroborated by independent evidence (s273) – murder in course of robbery and premeditation – sentencing (s47).
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24 November 2022 |
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Condonation for a 14-month-late review application refused for unreasonable delay and poor prospects of success.
Administrative law – condonation for non-compliance – factors: degree of delay, explanation, prospects of success; misjoinder not fatal; natural justice – opportunity to cross-examine; internal military appeal procedures
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23 November 2022 |
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Applicant failed to prove respondents were serial litigants; perpetual silence decree refused and costs awarded on legal practitioner and client scale.
Civil procedure — Decree of perpetual silence; vexatious/serial litigant; abuse of court process; access to courts; requirement of particularised evidence; punitive costs (legal practitioner and client)
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23 November 2022 |
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Court granted condonation to file review over arguable town-planning notice and publication irregularities, finding reasonable delay and prospects of success.
Procedure – Condonation for late noting of review – Factors: extent of delay, explanation, prospects of success, prejudice, finality and convenience – Town planning – Regional Town and Country Planning Act s 26(3)(4) – Publication requirements (newspaper versus Government Gazette) – Service of notice by registered post – Judicial discretion to do justice
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23 November 2022 |
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High Court dismissed review: no exceptional grounds to overturn magistrate's refusal to discharge at close of State case.
Criminal procedure — Review of unterminated proceedings — Exceptional circumstances required; Discharge at close of State case (s198(3)) — Affidavit as prima facie evidence and burden shift on disputed authorship; Amendment of charge (s202); Effect of repeal on offences — savings under Interpretation Act s17; Prima facie standard versus proof beyond reasonable doubt
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23 November 2022 |
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Application for division of inherited land dismissed after founding affidavit expunged for inconsistent notarization; costs on attorney and client scale.
Actio communi dividendo – testamentary division of property – founding affidavit irregularity – inconsistent notarization – expungement – absence of application – dismissal – costs on attorney and client scale
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23 November 2022 |
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Combined condonation and rescission application dismissed for inordinate delay and unacceptable poverty explanation.
Civil procedure — Default judgment — Combined application for condonation and rescission under r 27 — Combined procedure permissible; absence of plea or extension not fatal; lawyer affidavit acceptable — Delay of 14 months and poverty explanation insufficient for condonation — rescission refused.
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23 November 2022 |
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Trial courts erred by imposing restitution as a direct sentence without statutory basis or required application.
Criminal procedure — Restitution not a sentence — Suspension of sentence s 358(2)(b) — Part XIX compensation and restitution — s 368 requirement of application — Competency of restitution orders.
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23 November 2022 |
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Accused 1 acquitted: fatal blow found lawful defence of person under s 253; accused 2 properly placed on defence.
Criminal law — Defence of person (s 253) — Requirements: unlawful attack, imminence, necessity, inability to escape, reasonable means, proportionality — Credibility of witnesses — Discharge at close of State case (s 198(3)) — Common purpose.
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23 November 2022 |
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Conviction for murder where a magistrate‑confirmed confession, corroborated by independent evidence, proved guilt beyond reasonable doubt.
Criminal law – murder – admissibility of warned and cautioned statements – s256 CP&E Act – conviction on confession – s273 CP&E Act requiring independent corroborative evidence – s314 admissions – voluntariness and corroboration of confession; domestic violence context.
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23 November 2022 |
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Sentence for culpable homicide set aside due to sentencing irregularities; conviction upheld despite defective charge.
Criminal law – culpable homicide (s 49) – charge drafting – distinction from road traffic offences – sentencing – inquiry into degree of negligence – s 64(3) Road Traffic Act – suspended sentence conditions – irregular sentence set aside – remittal for re-sentencing.
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23 November 2022 |
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An urgent application relying on a certificate of urgency that predates the founding affidavit is fatally defective and dismissed.
Spoliation (mandament van spolie) – urgent chamber application – certificate of urgency requirements – certifier must have read and applied mind to founding affidavit – certificate predating founding affidavit invalidates urgency – impropriety of certifier employed by applicant’s law firm
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22 November 2022 |
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Failure to notify affected persons per s124(2)(b) of the Insolvency Act renders a corporate rescue application nullity.
Insolvency Act s124(2) — corporate rescue — peremptory "standard notice" requirement (registered mail, fax, e-mail or personal delivery) — affected persons defined — retrospective service ineffective — locus standi/affected person and shareholding issues reserved for merits
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22 November 2022 |
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Applicant granted leave to execute pending appeal due to prejudice and weak prospects of appeal.
Execution pending appeal — factors: irreparable harm, balance of convenience, prospects of success; forfeiture vs seizure for prescription under Customs and Excise Act; arbitrary administrative decision; costs on ordinary scale
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22 November 2022 |
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Accused acquitted of murder after court finds self-defence requirements satisfied and State failed to prove intent to kill.
Criminal law - murder - defence of person (self-defence) - s 252/253 Criminal Law (Codification and Reform) Act - requirements: unlawful attack, necessity, impossibility of escape, reasonableness of force - intoxication and causation of death - insufficiency of State's proof.
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22 November 2022 |
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A seven-year unexplained delay and weak appeal grounds meant condonation and leave to prosecute in person were refused.
Criminal appeal — Condonation for late noting — length of delay, adequacy of explanation, prospects of success; identification parade — absence not automatically fatal; dock identification; recovery of stolen property; sentence proportionality.
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22 November 2022 |
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22 November 2022 |
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Court upheld trial sentence, noting questionable use of Domestic Violence charge but no basis to disturb sentencing discretion.
Criminal law — Domestic Violence Act v ordinary assault — appropriateness of charging; sentencing — use of weapon, blows to the head, elderly victim — appellate review of alleged lenient sentence.
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21 November 2022 |
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Civil claim dismissed as prescribed; later criminal restitution did not revive the plaintiff's right to sue.
Prescription – cause of action arising from prior civil judgment – three-year prescription period; interruption by acknowledgment of liability – effect of criminal restitution on civil prescription; competence of claim where agreement void ab initio; unjust enrichment
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18 November 2022 |
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Mandament van spolie denied where occupier remained in possession; no contempt; interdiction against construction pending eviction.
Property law – mandament van spolie – requirement of actual dispossession; Status quo interim order – contempt requires wilful disobedience; Interdicts pending eviction proceedings; Costs — attorney-client costs reserved for abuse of process.
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18 November 2022 |
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Accused found not guilty by reason of insanity; court orders transfer to psychiatric unit as non-custodial placement unavailable for serious offence.
Criminal law — Insanity verdict under Mental Health Act s29(2) — psychiatric evidence — dispositional options for serious offences — placement with relatives limited to non-serious offences — return to prison for transfer to psychiatric institution.
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18 November 2022 |
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s29(2) requires trial evidence, including expert medical proof, to return a not-guilty-by-insanity verdict.
Mental Health Act ss 28 and 29(2) – insanity defence – special verdict of not guilty because of insanity – requirement that s29(2) be satisfied from evidence at trial, including medical expert evidence – distinguishing unfitness to stand trial (s28) from insanity at time of offence (s29(2)) – disposition by committal for treatment.
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18 November 2022 |
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Whether tax officers may seize computers absent statutory authorization and whether a corporate deponent must produce board authorisation.
Corporate representation — requirement for board resolution when authority is challenged; Spoliation — mandament van spolie; Tax statutes — powers to seize documents/printouts but not computers; Ejusdem generis
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17 November 2022 |
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Appellant’s robbery conviction and effective custodial sentence upheld; non-recovery of firearm and new allegations on appeal insufficient to succeed.
Criminal law – Robbery – Use of firearm – Aggravating circumstances under s126(3)(a),(b) – Non-recovery of weapon does not invalidate conviction – Appeals: fresh allegations raised on appeal inadmissible without prior trial evidence; credibility findings not disturbed absent clear misdirection.
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17 November 2022 |
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Application to file an additional affidavit recording an AGM ratification refused as it would materially alter the pleaded causa and prejudice applicant.
Civil procedure – Motion proceedings – Rule 59(12) – Leave to file additional affidavits – Discretionary relief – Requirements: absence of mala fides, valid reason for lateness, no prejudice, and no material alteration of causa – Res litigiosa – Post‑pleading AGM ratification not permitted to alter pleaded cause
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16 November 2022 |
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Court removed divorce trial from roll and ordered the joined trust to file appearance and plea within 10 days.
Civil procedure — Joinder of party already ordered — Failure to enter appearance and plead — Removal from roll and case-management directions to complete pleadings
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16 November 2022 |
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Court suspended execution pending rescission, permitting limited occupation while preserving respondents' interdiction against interference.
Stay of execution pending rescission — discretionary exercise guided by real and substantial justice — default judgment — improvement lien v. real rights under offer letter — non-joinder of Sheriff not fatal — interim limited occupation permitted
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16 November 2022 |
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Applicant entitled to declaratory relief affirming prior pegging rights; later registrant’s certificate void and mining unlawful.
Mining law — Declaratory relief — Prior pegger’s rights and priority (s31(1)(b); s177(3)) — Effect of registration and reservation against prospecting — Certificate of registration declared null and void — Lis pendens and dispute of fact points dismissed
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16 November 2022 |
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Plaintiff adduced a prima facie malicious prosecution claim; absolution from the instance was dismissed pending defendant’s case.
Civil procedure — absolution from the instance — prima facie case test; Malicious prosecution — elements: instigation, want of reasonable and probable cause, malice, failure of prosecution; court must assume plaintiff’s evidence true unless inherently unacceptable
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16 November 2022 |
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Issue estoppel barred the applicant’s interdict to restrain sale of disputed land; application dismissed with costs.
Civil procedure — Res judicata / issue estoppel — Effect of matter struck off the roll for failure to regularise defects — Deemed abandonment after unsuccessful appeal — Interdict to restrain transfer of property barred
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16 November 2022 |
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Applicant with original title deed obtained interim interdict to halt transfer of disputed property pending ownership determination.
Deceased estates — Interim interdict pending action — Urgency — Locus standi to challenge transfer — Prima facie right to property despite registered title (rebuttable presumption) — Irreparable harm and no alternative remedy — Balance of convenience
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16 November 2022 |
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Applicant entitled to declaratur of title over converted gold blocks; 1st respondent’s registration held null and void.
Mining law — Declaratory relief — Title to mining claims — Forfeiture — Conversion of base block into three gold blocks — Deference to Ministry records — Material disputes of fact and exhaustion of administrative remedies
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16 November 2022 |
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Court suspended sale of a jointly owned family home where hardship, a viable alternative sale of an executable machine, and estate interests prevailed.
Civil procedure – Rule 71(14) & (18) – suspension/postponement of sale in execution of a dwelling occupied by debtor/family – "great hardship" test; Execution law – sheriff's return and proof of forfeiture; Property law – joint ownership and deceased co‑owner's estate rights; Burden to rebut sheriff's return
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16 November 2022 |
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A sale and transfer founded on a fraudulently procured executor appointment is void; title must be restored to the estate.
Succession law — Executor dative appointed by fraud — Appointment void ab initio — Sale and transfer founded on fraud nullified — Innocent purchaser defence limited where transaction tainted — Registrar ordered to revive prior title — Eviction authorized — Costs on attorney and client scale
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16 November 2022 |
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Joint registration of residential property confers equal 50% shares; no tacit universal partnership established, defendant must sign subdivision and pay half costs.
Property law — Tacit universal partnership — Requirements: contributions, joint business for profit and legitimate partnership — Registration in joint names confers equal real rights enforceable against the world — Stated case (r 52) binds court to agreed facts.
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16 November 2022 |
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Declaratory relief challenging a fraudulent transfer of immovable property not prescribed; transfer set aside; conveyancer not liable.
Property law – Fraudulent transfer and cancellation of title deed – Forgery and false identity particulars – Prescription: section 16(3) Prescription Act – Declaratory relief not barred by prescription – Estoppel in property transfers – Conveyancer's due diligence and non-joinder.
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16 November 2022 |
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A point of law that an opposing affidavit was improperly commissioned can be raised anytime; defect remediable, respondents ordered to amend.
Civil procedure – validity of affidavits – improper commissioning where commissioner’s endorsed date of administration absent – point of law may be raised at any time – remediable defect – matter removed from roll and respondents ordered to amend affidavit.
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16 November 2022 |
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Summary judgment upheld where defendant failed to show a bona fide prima facie defence of purchase through an alleged agent.
Civil procedure – Summary judgment – extraordinary remedy; defendant must show bona fide prima facie defence; proof of agency and concluded sale required; failure to produce cession/title documents fatal; attorney-and-client costs for abuse of process.
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16 November 2022 |
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Rule 62(4) requires an application for extension of time as well as condonation for late review proceedings.
Civil procedure — Review — SI 202/21 r 62(4) — requirement to seek extension of time for late review applications (good cause shown) in addition to condonation; Administration of Estates Act — s116/internal remedies — inquiry into executor; revival of superannuated orders.
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16 November 2022 |
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Apparent authority of managing director bound the company; both defendants held jointly liable for undelivered vehicles.
Agency and company law – ostensible/ apparent authority of managing director – estoppel – company bound by acts and representations of its officers; specific performance and alternative damages; joint and several liability; conduct after separation as factor in personal liability.
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16 November 2022 |
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Landlord proved rent arrears; High Court set aside absolution and ordered eviction, arrears, holding-over damages, licence surrender and costs.
Eviction — Landlord-tenant — Non-payment of rent — Burden and standard of proof in civil eviction proceedings — Absolution from the instance (Magistrates' Court Act s18) — High Court jurisdiction (Civil v Commercial Division) — Holding-over damages — Surrender of regulatory licence.
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16 November 2022 |
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Appeal upheld: magistrate had jurisdiction over spoliation, but material disputes of fact and lapse of time made the spoliation order unsustainable.
Civil procedure — Mandament van spolie — Jurisdiction of Magistrates Court — Possession v ownership — Disputes of fact in spoliation proceedings — Lapse of time and implied consent as defence — Condonation for late filing of heads of argument.
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16 November 2022 |