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Citation
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Judgment date
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| February 2023 |
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28 February 2023 |
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Leave of court was required before suing a company under provisional judicial management; plaintiff failed to obtain it.
Companies Act s301(1) – provisional judicial management – requirement for leave to sue – stay of proceedings – protection of company assets and rehabilitation – sureties and co-principal debtors – prescription abandoned – exchange control raised but not determined.
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23 February 2023 |
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Residents' association granted urgent interim interdict halting re-pegging and collection of money pending determination.
Urgent interim interdict; locus standi of residents' association; High Court competent to grant interlocutory relief despite administrative remedies; land repegging, double allocations, and unlawful collection of funds; prima facie right and irreparable harm established.
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23 February 2023 |
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Rescission refused where applicant failed to prove non‑service, provide a reasonable excuse, or show a bona fide defence.
Civil procedure — Rescission of default judgment (Rule 27 High Court Rules 2021) — Proper service by placing documents in letter box and by personal service — Requirement of reasonable explanation and bona fide defence with prospects of success.
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23 February 2023 |
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Failure to file the paginated indexed bundle required by rule 12(2) rendered the defendants' exception defective and it was dismissed.
Civil procedure – Commercial Court Rules – rule 12(2) requirement for a paginated and indexed bundle supporting pleas/exceptions – non‑compliance renders exception defective – interlocutory procedure and costs for mutual non‑compliance.
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23 February 2023 |
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Court refused to review magistrate’s refusal to discharge accused, finding prima facie extortion evidence and no exceptional grounds to interfere.
Criminal procedure — discharge at close of State case (s 198(3)) — three‑pronged test: elements of offence, whether reasonable court might convict, manifest unreliability of State evidence — prima facie case of extortion established by testimonial and documentary evidence (Ecocash and bank records) — reluctance to interfere with uncompleted trials absent exceptional circumstances.
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23 February 2023 |
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Application for condonation and leave to appeal refused due to inordinate delay and dim prospects of success on conviction and sentence.
Condonation of late noting of appeal — factors: degree of non-compliance, reasonable explanation, prospects of success — medical report in sexual offence cases — s 278(3a) Criminal Procedure and Evidence Act — credibility findings and appellate restraint — sentence within comparative range for rape.
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23 February 2023 |
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A former owner divested by a Supreme Court judgment lacks locus standi to cancel a subsequent transfer; miscitation/non-joinder is fatal and costs awarded.
Locus standi – former owner divested by prior judgment lacks direct and substantial interest to challenge subsequent registration; Non-joinder/miscitation – Sheriff must be correctly cited where his acts are impugned; Civil procedure – locus standi and no-joinder are matters for special plea, not exception; Deeds Registries Act s8 – cancellation applications require a recognisable legal interest; Costs – wasted costs on higher scale for frivolous recusal attempt.
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22 February 2023 |
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Whether an exception was properly taken and whether omission of communication element renders an incitement charge incurably defective.
Criminal procedure — Exception to charge — Proper statutory route under CPEA (ss 170, 171, 178, 180) — Incitement (s187) — Essential element of communication — Defective charge — Review of unterminated proceedings — When High Court should set aside proceedings.
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22 February 2023 |
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Cooperative allocation and partnership rights prevailed; respondent lacked locus standi to evict due to defective/irregular lease.
Property law – State land allocation and double allocations – Cooperative allocations under Partnership Agreement with Apex Board and Ministry – Regularity of leases – Locus standi to bring rei vindicatio – Occupation and rights flowing from cooperative allocations.
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20 February 2023 |
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Bail pending appeal denied where appeal lacked reasonable prospects, sentence not manifestly excessive, and risk of absconding was heightened.
Bail pending appeal – criminal abuse of duty (s 174) – reasonable prospects of success – intention inferred from conduct – sentencing discretion – custodial sentence justified – risk of absconding.
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20 February 2023 |
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Application to cancel competing title deeds dismissed due to unresolved material disputes of fact requiring oral evidence.
Property law – competing title deeds – application for declaratur to cancel deeds and replace title; Civil procedure – service of process and compliance with High Court Rules; Prescription – requirement to plead with particularity; Motion proceedings v trial – material disputes of fact requiring viva voce evidence; Conveyancing irregularities and Registrar of Deeds queries.
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20 February 2023 |
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Specific performance granted where plaintiff proved purchase, payment, and long possession; defendant failed to prove forgery.
Specific performance – sale of immovable property – proof of contract, payment and possession – credibility of witnesses – burden to prove alleged fraud/forgery.
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20 February 2023 |
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Accused acquitted of murder but convicted of culpable homicide for negligent strangulation causing death.
Criminal law – Homicide – Distinguishing murder from culpable homicide – Intention to kill versus negligence/recklessness; post‑mortem evidence; acceptance of limited plea under s 49 Criminal Law (Codification and Reform) Act [Chapter 9:23].
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17 February 2023 |
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Condonation granted where delayed record and procedural defects (failure to put firearm charge, poor credibility analysis) give reasonable prospects of success.
Condonation of late noting of appeal; delay due to missing/delayed record; prospects of success; failure to put charge to accused; deficient trial judgment for lack of credibility appraisal; extension of time; leave to appeal in person.
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17 February 2023 |
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Whether declaratory relief should set aside a valid expulsion notice after applicant failed to make timely representations.
Refugee law — Expulsion under s 15 Refugees Act — Service of notice and 14-day right to make representations — Declaratory relief v. review — Court’s discretionary power to grant a declaratur — Procedural fairness and condonation not determined.
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16 February 2023 |
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Appeal against conviction and sentence for theft of entrusted cash dismissed; trial court’s findings and deterrent sentence upheld.
Criminal law – Theft of trust property – Standard of appellate review of factual findings – Custody and access to cash box keys – Documentary evidence and credibility – Sentencing: abuse of trust, substantial loss, deterrence, suspension conditional on restitution.
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16 February 2023 |
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Appellate court upheld rape conviction and 15-year sentence; complainant credible and reporting delay excused.
Criminal law – Rape – Credibility and corroboration – Delay in reporting – Discrepancies immaterial – Abuse of position of trust – Sentence not excessive.
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16 February 2023 |
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Condonation for late appeal refused because proposed grounds lack reasonable prospects of success on conviction and sentence.
Criminal procedure – Condonation for late noting of appeal – factors to consider (degree and explanation of delay, prospects of success, finality) – COVID‑19 as explanatory factor – Appeal on conviction: identity of accused – corroborative child evidence and medical report – Sentence review: proportionality for rape of minor.
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16 February 2023 |
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Misjoinder in contempt proceedings is fatal; contempt requires a clear order, awareness and willful disobedience.
Contempt of court – requirements: clear and unambiguous order; awareness; willful disobedience – Misjoinder/non‑joinder fatal in contempt applications – Validity and presumption of court orders until set aside.
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15 February 2023 |
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Applicant with an unrevoked lease-to-buy declared lawful holder and granted ejectment against respondent occupying the stand.
Property law – lease-to-buy – locus standi to seek declarator and ejectment – proof of title and cooperative allocations – resolution of disputes on motion papers.
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15 February 2023 |
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Failure to obtain written consent under s31 does not automatically void a mining registration; wrong remedy pursued.
Mines and Minerals Act s31 — landholder's written consent for prospecting — failure to obtain consent does not ipso facto nullify mining registration; appropriate remedy is interdict/compel compliance, not automatic cancellation.
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15 February 2023 |
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Beneficiary lacked standing to seek a s14 declaratur nullifying a deceased's marriage; review of Master/executor was the proper route.
Civil procedure — locus standi to challenge validity of marriage post mortem; declaratory relief under s14 High Court Act in relation to deceased estates; proper procedure is review of Master's/executor's decisions; mootness of claims affecting deceased persons; non-joinder not necessarily fatal but dispositive preliminary points may strike matter off roll.
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15 February 2023 |
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Conversion of the applicants' USD bank balance to RTGS was ultra vires and violated their constitutional property rights.
Exchange control — Directive RT120/2018 — paras 2.5 & 2.6 ultra vires s 35(1) — unlawful conversion of USD bank balances to RTGS — deprivation of property (s 71) — certain Finance (No.2) Act provisions invalid — remedial repayment in USD with interest — declarations subject to s175(1) confirmation.
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15 February 2023 |
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Bail refused for accused charged with raping his minor daughter due to flight risk and likely witness interference.
Bail pending trial — rape of a minor — flight risk — likelihood of interfering with state witnesses — familial relationship heightening interference risk — seriousness of offence.
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15 February 2023 |
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Association lacked authority under its constitution to sue without a General Meeting resolution; application dismissed with costs.
Associations — constitutional powers of management committee — locus standi to sue — literal interpretation of constitution — expressio unius — purposive interpretation inapplicable where language is clear — application dismissed for lack of authority to litigate.
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15 February 2023 |
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Court set aside default judgment where pending joinder made confirmation erroneously granted in applicant's absence.
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15 February 2023 |
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14 February 2023 |
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Applicants charged with serial aggravated robbery denied bail due to strong evidence, propensity to reoffend and statutory reverse onus.
Bail — distinction between remand and bail proceedings — challenge to reasonable suspicion inadmissible in bail application after acquiescence to remand facts; Bail — s50(1)(d) Constitution; s117 and s115C CP&E Act; Third Schedule reverse onus for Part I offences; Propensity and danger to public; Identification evidence and strength of State's case; Equality before the law — unequal treatment permissible where circumstances differ.
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14 February 2023 |
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Application to sell assets under a repealed Companies Act provision dismissed for lack of accrued right.
Companies law — repeal of statute — effect on accrued rights (Interpretation Act s17(1)(b)); judicial management — disposal of company assets; s307 Companies Act (repealed) required court leave; recovery of judicial management fees linked to insolvency law.
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13 February 2023 |
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Bail pending appeal denied where bribery conviction and negligible prospects of success made continued detention necessary for justice.
Criminal law – Bribery – Offer of bribe completes offence even if rejected – Bail pending appeal – factors: liberty, delay, prospects of success, risk of absconding – sentencing discretion and deterrence in corruption cases – prosecutor’s concession not binding on sentencing court.
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13 February 2023 |
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Executor may set aside an estate property sale made without the Master’s consent; costs awarded for abusive, meritless opposition.
Deceased estates — disposal of estate property without Master’s approval — nullity ab initio; executor’s locus standi to challenge unlawful disposal; Prescription Act inapplicable to void disposals; abuse of process and awarding of attorney-and-client costs; reversal of transfer and cancellation of title deed; surrender of deed and eviction order.
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10 February 2023 |
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Accused acquitted: statutory defence of person (self-defence) satisfied; State failed to disprove beyond reasonable doubt.
Criminal law — Defence of person (self-defence) under s 253 Criminal Law Code — Requirements for complete defence; Reasonable force and proportionality; Defence of property; Right to life (Constitution ss 86 & 48) and potential tension with statutory defences; Onus on State to negative self-defence.
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10 February 2023 |
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Convictions for theft of trust property set aside where charges and evidence failed to establish the terms of the trust or intention to misappropriate.
Criminal law – theft of trust property (s 112–113) – need to establish precise terms of obligation; debtor‑creditor/fungible‑money exception; proof of intention to misappropriate. Criminal law – corporate liability (s 277) – presumptions and need for proper pleading attributing conduct and intent to directors/employees.
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10 February 2023 |
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Applicant failed to prove an unregistered customary union; Master’s refusal to recognise a surviving spouse was upheld.
Administration of Estates Act s68G/s68J – unregistered customary marriage – proof required: roora/lobola and participation/corroboration by both families – weight of partisan affidavits – inquiry under Master of High Court.
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9 February 2023 |
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Stay granted pending rescission where default judgment was irregularly obtained and not served on the applicants.
Civil procedure – stay of execution – default judgment – defective barring procedure – service of judgment affecting status – High Court Rules 2021 r 42 and r 43 – irregular proceedings – urgency and balance of convenience.
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9 February 2023 |
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Conviction for infant rape quashed where witness inconsistencies and unresolved medical evidence raised reasonable doubt.
Criminal appeal – alleged rape of infant – contradictions between State outline and witness testimony; medical report ambiguous on penetration; failure to call examining doctor; reasonable doubt; appellate interference with credibility and factual findings.
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9 February 2023 |
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Medical and witness evidence supported attempted murder; sentence reduced for excess and youth, conviction upheld.
Criminal law - Attempted murder - Evidence of intention to kill from weapons used, injuries and medical reports - Sentence review - appellate interference limited but can reduce excessive sentence - consideration of youth and role - judicial decorum and language.
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9 February 2023 |
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Convictions quashed where prosecution failed to prove ownership, link to accused, and relied on inadmissible evidence.
Criminal law — Theft — failure to prove ownership/possession and link to accused; general‑deficiency allegations require production of audit/asset records (best evidence). Admissibility — extra‑curial admissions inadmissible without proof of voluntariness (s 256 CPEA). Translation — exhibits in vernacular must be translated into English. Insufficient evidence — acquittal warranted where prosecution reliance on inadmissible evidence and lack of recoveries/CCTV.
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9 February 2023 |
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Rescission application struck off for being filed out of time without condonation and based on inconsistent affidavits.
Civil procedure — Rescission of default judgment — High Court Rules r27 (one-month time limit) — condonation required for late rescission — misfiling of court papers and credibility of founding affidavit.
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8 February 2023 |
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A respondent may challenge contract validity in opposing a declaratory claim; absence of consensus and price voids the sale agreement.
Contract law — contractual interpretation and context — declaratory relief — respondent may challenge validity in opposing affidavit — consensus ad idem essential — price (pretium) ascertainability — non-variation clause and parol evidence.
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8 February 2023 |
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Applicant cannot compel transfer where land allocations were nullities due to statutory non-compliance and officials exceeded authority.
Administrative law – validity of municipal land allocations – non-compliance with Regional Town and Country Planning Act ss 49(2),(3) and s 39 and Urban Councils Act s 152(2) – acts of Town Clerk/Director beyond mandate – nullity of transaction – binding effect of Supreme Court ruling SC 1/23.
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8 February 2023 |
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Applicant's delay rendered urgent relief unnecessary; court dismissed attempt to restrain a lawfully completed sale in execution.
Civil procedure — urgency — stay of execution — interdict against sheriff — sale in execution — overtaken by events — applicant's delay — service after sale.
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8 February 2023 |
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Unavailability of counsel of choice alone does not justify postponement where it would unduly delay a criminal trial.
Criminal procedure — application for postponement — unavailability of counsel of choice — balancing accused's right to representation and speedy trial with public interest in expeditious proceedings — s 166(1) CPE Act; non-availability of counsel not ordinarily decisive.
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8 February 2023 |
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Court granted final interdict restraining the respondent’s defamatory social-media allegations of contaminated fuel and struck out an improperly authenticated affidavit.
Defamation; final interdict; social media publications; urgency; authentication of foreign affidavits (r 85 High Court Rules); striking out improperly authenticated evidence; costs on scale of legal practitioner and client.
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7 February 2023 |
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Employment contract disputes fall within the Labour Court's exclusive jurisdiction; an undated affidavit was not fatal.
Labour law – exclusive first-instance jurisdiction of the Labour Court over employment/termination disputes; civil procedure – affidavit formalities (undated affidavit not necessarily fatal).
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7 February 2023 |
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The employer is liable under rules 46 and 47 to reimburse the fund and pay pensions until the beneficiary is sixty-five.
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6 February 2023 |
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Rescission refused where applicants delayed nine years after knowledge and conduct amounted to abuse of process; punitive costs awarded.
Civil procedure – Rescission of default judgment – Rule 449(1)(a) – requirements (erroneously sought/granted; absence; affected rights) – inordinate delay – abuse of process – punitive costs (attorney and client scale).
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6 February 2023 |
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Court lacked jurisdiction to review an acquisition absent alleged procedural non‑compliance with s16B(2)(a).
Land reform – s16B(2)(a) and s16B(3) ouster clause – jurisdiction to review acquisition confined to procedural non‑compliance on the face of the record – indigenous ownership not a basis to vitiate Schedule 7 acquisitions – s295 compensation framework.
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3 February 2023 |
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Interim interdict granted to protect the applicant’s prima facie mining title and prevent irreparable removal of ore.
Urgent chamber application; interim interdict to protect mining title; certificate of registration as prima facie proof of title; irreparable harm from removal of ore; balance of convenience; lis pendens and res judicata objections considered and dismissed.
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3 February 2023 |