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Citation
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Judgment date
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| November 2014 |
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Supreme Court set aside an unserved chamber order registering a retrenchment 'award' and quashed the consequent execution.
Civil procedure - chamber applications - Rules 226 and 242 - service of chamber applications - audi alteram partem - registration of retrenchment "award" - review powers s25 Supreme Court Act - appellate powers s22(1)(ix).
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17 November 2014 |
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Failure to furnish security for costs within r 46(5) justified dismissal of the appeal and attorney-and-client costs.
Civil procedure – Security for costs – Rule 46(5) peremptory one-month time limit – Failure to furnish security permits dismissal under r 36(1) – Judicial discretion under r 36(3) – Attorney-and-client costs awarded.
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13 November 2014 |
| October 2014 |
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High Court retains jurisdiction over rei vindicatio claims; employee's expectation to buy a company car is not a legal right to retain it.
Labour law — scope of Labour Court's exclusive jurisdiction under s89(6); civil jurisdiction of High Court; rei vindicatio to recover company property; contractual/right-to-purchase under employer vehicle policy; suspension of dismissal and retention of employer property.
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22 October 2014 |
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Internal appointment to perform duties can satisfy s12B(3); three months' notice under s12B(4) does not apply to expiry by effluxion of time.
Labour law — Fixed‑term contracts — Unfair dismissal — s12B(3): legitimate expectation and replacement; internal/acting appointment suffices as engagement in employee's stead — s12B(4): three months' notice not applicable to expiry by effluxion of time — Remedies: reinstatement, damages, accrued leave pay.
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17 October 2014 |
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A workplace Code of Conduct does not displace the common law right to dismiss for misconduct that goes to the root of the employment contract.
Employment law – Code of Conduct v common law – Whether a workplace code can displace the common law right to dismiss for misconduct going to the root of the contract – Insobordination and summary dismissal – Burden on employee to show misconduct excusable or trivial.
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16 October 2014 |
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Bail pending appeal refused: appeal not reasonably arguable; religious indoctrination did not vitiate convictions; risk of absconding.
Criminal procedure – Bail pending appeal – test whether appeal is reasonably arguable; Credibility findings – appellate interference only if plainly wrong; Rape – consent vitiated by religious indoctrination and submission; Delay in reporting – plausibility and corroboration; Sentence – misdirection by failure to give reasons; Risk of absconding – positive grounds required for bail pending appeal.
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15 October 2014 |
| September 2014 |
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Application for condonation of a nine-year delayed appeal refused due to inordinate delay, unsatisfactory explanation, and prejudice to respondents.
Civil procedure — condonation for late noting of appeal — factors: extent of delay; reasonableness and credibility of explanation; prospects of success not decisive where rule breach is flagrant; prejudice to respondents; need for finality — application dismissed.
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29 September 2014 |
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Non-urgent application should have been removed from the roll; trial court misdirected itself by deciding locus standi and merits.
Civil procedure — urgency — discretion to hear urgent applications — removal from urgent roll vs dismissal; locus standi — disputed facts and need for further evidence; misdirection by trial court in deciding merits on urgency; appellate restraint in first-and-last-instance decisions.
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28 September 2014 |
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Execution allowed despite a Constitutional Court appeal where the appeal lacked reasonable prospects and the prior eviction was void.
Civil procedure — Execution pending appeal — Discretion to grant leave to execute notwithstanding appeal to Constitutional Court — Factors: irreparable harm, prospects of success, balance of convenience — Spoliation/eviction order irregular and void — Restoration of possession — Costs on attorney-and-client scale.
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22 September 2014 |
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An employer may not impose a punitive transfer without a disciplinary finding and consultation; such a transfer is unlawful.
Labour law – Transfer of employee – Distinction between operational and punitive transfers – Punitive transfer unlawful without disciplinary hearing – audi alteram principle – Employer’s duty to consult and consider employee’s personal circumstances – Reinstatement and costs.
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15 September 2014 |
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Statutory immunity from execution under the Repeal Act applies to the single nominated successor company, not multiple successor entities.
Statute construction – Air Zimbabwe Corporation (Repeal) Act – meaning of 'successor company' – single designated successor company contemplated by s 3; statutory immunity from legal proceedings limited accordingly. Civil procedure – urgency – self-created urgency. Execution law – attachment of assets – proof of ownership; interpleader proceedings appropriate remedy. State liabilities – interaction of Repeal Act s9A and State Liabilities Act in protecting state-owned successor.
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14 September 2014 |
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Applicant failed to prove possession for mandament van spolie; overbroad final order was set aside.
Property — Mandament van spolie — Requirement to prove peaceful and undisturbed possession and unlawful dispossession — Evidence of possession — Interim/provisional relief versus final order — Competency of relief granted.
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7 September 2014 |
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Late supplementary affidavit withdrawing admissions refused for lack of explanation and prejudicial effect; appeal dismissed with costs.
Civil procedure — leave to file supplementary affidavit — requirements: satisfactory explanation, absence of mala fides, no irremediable prejudice — affidavit from legal practitioner required if omission blamed on counsel — withdrawal of admissions cannot be effected indirectly by supplementary affidavit — prejudice may justify refusal and punitive costs.
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7 September 2014 |
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Unauthorised transfer of employer property with admissions amounted to theft/misconduct; leave to appeal dismissed.
Labour law — Misconduct — Unauthorised disposal of employer's property; intention to permanently deprive inferred from conduct; recovery of property does not negate misconduct; leave to appeal refused.
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2 September 2014 |
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Leave to appeal dismissed; new employment contract valid, freely signed and not procured by duress.
Employment law - contract variation - mutual termination and replacement of contract following economic changes (dollarization) - validity of consent; Duress - requirements for setting aside contract; Procedural law - withdrawal of application after hearing; Leave to appeal - prospects of success.
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2 September 2014 |
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Rule 449 cannot be used to rescind a parallel judge’s order for substantive error; an appeal is the proper remedy.
Civil procedure — Rule 449 High Court Rules — correction, rescission or variation of judgments — rule applies to orders erroneously sought or granted (procedural errors, judgments in party's absence) — not a vehicle for correcting substantive errors made by a judge of parallel jurisdiction — functus officio — remedy for substantive error is appeal, not rescission.
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1 September 2014 |
| August 2014 |
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Appellant bound by prior consent order fixing conversion date, so Labour Court’s USD award was upheld and appeal dismissed.
Labour law – back-pay conversion – date of conversion fixed by prior consent order – res judicata; currency revaluation regulations; public policy; appeal dismissed.
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24 August 2014 |
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Appellant failed to prove customary ‘evenness of turns’; appointment complied with VaZumba succession principles.
Traditional leadership — Customary succession — Whether ‘evenness of turns’ between houses forms part of succession — Role of guardian spirit (svikiro) in selecting chiefs — Admissibility and weight of oral genealogical tradition — Appellate restraint on disturbing factual findings.
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13 August 2014 |
| July 2014 |
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Appeal against murder with actual intent dismissed; provocation and extenuation not established.
Criminal law – Murder with actual intent – Causation and fatal blow established by post-mortem; Provocation – defence rejected; Extenuating circumstances – onus on accused; allocutus and mero motu reopening of extenuation enquiry.
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31 July 2014 |
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An election petition must disclose grounds and exact relief on its face; failure to do so justifies dismissal.
Electoral law – Election petitions – Form and content – Rule 21(e) and (g) – Grounds and exact relief must appear on face of petition – Points in limine – s 171 trial requirement – statutory procedure – High Court Rules not applicable to displace electoral rules.
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29 July 2014 |
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Summary judgment reduced to US$2,760; damages claim for US$3,000 requires proof and may not be decided on summary judgment.
Civil procedure – summary judgment – exceptional remedy; admitted indebtedness convertible to US$2,760 – summary judgment appropriate; liquidated damages claim requires evidential proof and not suitable for summary determination; unsubstantiated factual defence (theft) insufficient.
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29 July 2014 |
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Appeal dismissed: identification and motive established arson‑murder of two children, no mitigation, death sentence affirmed.
Criminal law – Murder by arson – Identification by victim (voice and visual in moonlight) – Circumstantial evidence and motive – Alibi contradicted – No extenuation – Death sentence affirmed.
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29 July 2014 |
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Confirmed warned and cautioned statement admissible; evidence established violent rape and murder with actual intent; appeal dismissed.
Criminal law – rape and murder; admissibility of confirmed warned and cautioned statement – voluntariness; corroboration by medical and eyewitness evidence; intention and absence of extenuating circumstances; death sentence upheld.
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29 July 2014 |
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Self-defence rejected; second appellant convicted of murder with constructive intent; withdrawal ineffective; death sentences affirmed.
Criminal law – Murder – Actual and constructive intent – Self-defence – Common purpose and withdrawal/dissociation – Effectiveness of last‑minute withdrawal – Extenuating circumstances and death sentence.
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29 July 2014 |
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Failure to test psychiatric affidavit vitiated sentencing result; conviction upheld but death sentence reduced to 15 years for extenuating circumstances.
Criminal law – Murder – Expert psychiatric evidence given in affidavit – Duty to call expert viva voce where affidavit is inadequate or untested – Diminished responsibility/partial mental disorder as extenuating circumstances – Sentence substitution.
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29 July 2014 |
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Appellant's possession and concealment of the deceased's property supported conviction for murder and imposition of the death sentence.
Criminal law – Murder with actual intent – Circumstantial evidence – Possession and concealment of deceased's property shortly after killing – Murder to facilitate robbery – Death sentence in absence of weighty extenuating circumstances – Appellate interference in exercise of trial court discretion.
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29 July 2014 |
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Damages for wrongful dismissal of a fixed-term trainee are limited to proven loss for the unexpired contractual period.
Employment law – Fixed-term contracts – Measure of damages for wrongful dismissal limited to unexpired contractual period – Legitimate expectation of permanency – Sanctity of contracts – Mitigation and deduction of earnings.
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28 July 2014 |
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Appeal dismissed: appellants cannot repudiate pleaded contracts as shams and failed to pay required purchase price within three months.
Contract law – buyback/option agreements – interpretation of clause requiring payment within three months; Civil procedure – necessity to plead invalidity/sham – inability to pursue inconsistent relief; Security law – disguised surety argument rejected; Application of in duplum rule to sale/option price – not applicable; Cancellation of option for non-payment – lawful.
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27 July 2014 |
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Damages in lieu of reinstatement accrue from the date of wrongful dismissal; Labour Court to determine foreign-currency conversion and rate.
Labour law – consent order interpretation – damages in lieu of reinstatement – accrual from date of wrongful dismissal – mitigation of loss – computation and conversion of awards to foreign currency; equitable jurisdiction of Labour Court.
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24 July 2014 |
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Whether dismissal for sending obscene material via employer’s computer was justified and whether alleged hacking excused liability.
Labour law – dismissal for misconduct – use of employer’s IT facilities – incorporation of workplace policies into contract – allegation of hacking – adverse inference from silence in disciplinary proceedings.
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23 July 2014 |
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Acknowledgment of debt held not a suspensive condition; summary judgment upheld and appellant’s defence not bona fide.
Contract law — acknowledgment of debt — not a suspensive condition; Summary judgment — requirement of bona fide defence; Civil procedure — delay and dilatory tactics; Costs — attorney and client scale justified.
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23 July 2014 |
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Whether the Labour Court can grant interim relief against an arbitral award registered in the High Court pending appeal.
Labour Court jurisdiction — Registration of arbitral award in High Court — Effect on interim relief and appeals — Stay of execution pending Supreme Court determination — Conflicting High Court authorities.
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23 July 2014 |
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High Court erred in granting absolution: reconciliation statements created a stated account, Labour Act prescription inapplicable, exchange control burden on respondent, truck‑hire issues to be tried.
Civil procedure – absolution from the instance – stated account versus labour dispute; Labour Act jurisdiction and prescription; Exchange Control Regulations – burden of proof; locus standi to sue – ownership and pleadings re truck hire.
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9 July 2014 |
| June 2014 |
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Appeal allowed: accused indemnified under s 3 Protection of Wild Life Act; conviction and death sentence set aside.
Criminal law — Murder — Self-defence and statutory indemnity — Protection of Wild Life (Indemnity) Act s 3 — Good faith requirement and acts in connection with suppression of unlawful hunting — Evaluation of witness credibility and resolving reasonable doubt in favour of accused — Extenuating circumstances and death sentence.
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26 June 2014 |
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Appellant restored to possession where respondent failed to prove spoliation and magistrate's eviction order was irregular.
Civil procedure — spoliation (mandament van spolie) — onus to prove peaceful possession and unlawful deprivation; vagueness of eviction orders; declaratory relief — jurisdiction of High Court; forum shopping allegations; appellate power to grant reinstatement and punitive costs.
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16 June 2014 |
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Employee’s persistent refusal to comply with a lawful transfer order constituted wilful disobedience justifying dismissal; lower court erred mero motu.
Employment law – Transfer of employee – Procedural fairness (audi alteram partem) – Willful disobedience of lawful order – Disciplinary dismissal – Appellate intervention for mero motu misdirection.
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13 June 2014 |
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Stay of execution refused: no prima facie right, defective notice of appeal, and service presumed regular.
Service of process — presumption of regularity of sheriff’s return; Stay of execution — requirement of prima facie right, irreparable harm and balance of convenience; Statutory tenancy — protection only while in actual possession; Notice of appeal — failure to state the court is fatal.
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12 June 2014 |
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A court may not decide a case on grounds not raised or argued; the overtime instruction was lawful and the appeal succeeded.
Labour law – arbitration and review – appellate review of Labour Court – court cannot decide on grounds not raised or argued by parties – lawfulness and clarity of employer's overtime instruction – appeal allowed.
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9 June 2014 |
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Leave to appeal granted on important labour-law issues about casualisation, legitimate expectations and s 12B(3)(b).
Labour law – casualisation – successive fixed-term contracts – legitimate expectation of permanent employment – interpretation of s 12B(3)(b) (engaging other persons) – reinstatement versus damages.
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8 June 2014 |
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Appellant entitled to occupation where valid offer letter followed compulsory acquisition; trial court misdirected in failing to decide the agreed issue.
Property law – compulsory acquisition of agricultural land – effect of bilateral agreements; Validity of offer letter as basis for occupation; Civil procedure – pre-trial agreement on issues; appellate intervention for misdirection and substitution of judgment.
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1 June 2014 |
| May 2014 |
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Appellant failed to prove custom or contractual right to retain company vehicle; appeal dismissed with punitive costs.
Property law – actio rei vindicatio – owner proves ownership and defendant's possession; onus on defendant to prove right to retain; custom as source of law – requisites (reasonable, long established, uniform, certain); custom cannot substitute for an offer/contract; costs – legal practitioner and client scale for vexatious, unmeritorious appeal.
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29 May 2014 |
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Holder of an offer letter has enforceable right to occupy gazetted land; unlawful occupiers cannot rely on their own obstruction to defeat that right.
Gazetted land – compulsory acquisition – offer letters, permits and leases confer legal authority to occupy – holders entitled to assistance by courts and officials – unlawful occupation of gazetted land and offence under s 3(3) Gazetted Land (Consequential Provisions) Act – prescription cannot be relied on by those who frustrate claimant’s occupation.
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27 May 2014 |
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Appellate court upheld trial finding of fraudulent misrepresentation over share sale and dismissed the appeal with costs.
Partnership/contract – formation and tenure of partnership – fraudulent misrepresentation inducing share purchase – credibility findings and appellate restraint on factual findings – refusal to admit new point of law on appeal.
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22 May 2014 |
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A trade union must demonstrate constitutional authority or mandate to sue; failure to prove such authority defeats standing to seek judicial management.
Labour law – trade unions’ capacity and authority to sue – requirement to act in terms of union constitution (s 29 Labour Act) – proof of mandate to institute proceedings – judicial management applications – affidavit authority and annexures.
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14 May 2014 |
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Murder in the course of robbery with no extenuating circumstances; death sentence affirmed.
Criminal law – Murder – Murder committed in the course of robbery – Extenuating circumstances – Sentence of death – Appellate review of trial court’s finding on extenuating circumstances – Warned and cautioned statement – Post-mortem evidence.
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7 May 2014 |
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Death sentence upheld where a youthful appellant committed a planned axe murder during robbery, with no extenuating circumstances.
Criminal law – Murder with actual intent – Robbery as aggravating factor – Evaluation of credibility – Extenuating circumstances and youthfulness – Two‑pronged sentencing approach – Death sentence upheld.
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7 May 2014 |
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Appeal against murder conviction and death sentence dismissed; circumstantial evidence supported finding of deliberate killing.
Criminal law – Murder – Circumstantial evidence – Inference of intent – Credibility findings – Appellate review – Absence of extenuating circumstances – Death sentence upheld.
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7 May 2014 |
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Appeal against murder conviction and death sentence dismissed; killing was vindictive, not a crime of passion.
Criminal law – Murder with actual intent – Evidence of intention from nature and location of injuries and confession – Distinction between crime of passion and vindictive killing – Sentencing; absence of extenuating circumstances – Appellate restraint on interfering with trial court’s moral judgment (S v Woods principle).
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7 May 2014 |
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Whether poisoning and subsequent fatal assault during a robbery established constructive and actual intent warranting the death penalty.
Criminal law – Murder – Poisoning and fatal assault during robbery – Constructive intent for poisoning death – Actual intent and joint liability for fatal assault where identity of striker unclear – Death penalty where no extenuating circumstances.
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7 May 2014 |
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Whether self-defence and youthfulness excuse a politically motivated pursuit-and-blow killing; conviction and death sentence upheld.
Criminal law – Murder with actual intent – Self-defence rejected where assailant pursued and struck victim from behind; evidence and admissions corroborate State case – Sentencing – Youth not extenuating where conduct inconsistent with immaturity – Politically motivated killing aggravates moral blameworthiness – Death sentence upheld.
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7 May 2014 |