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25 judgments found.
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March 2019
Respondents' failure to serve the applicant with the application for copies barred tolling; their notice of appeal was deemed withdrawn.
Civil procedure — Court of Appeal Rules, 2009
25 March 2019
Failure to serve the written application for High Court proceedings prevents reliance on the Rule 90(1) exception, so the notice of appeal is deemed withdrawn.
Appellate practice — Appeal procedure — proviso for time excluded where copies sought
25 March 2019
Extension of time granted where counsel’s change of office justified failure to serve the notice of appeal.
Civil procedure
— extension of time — good cause required to extend time to serve notice of appeal and lodge appeal
— omnibus applications — related prayers may be combined absent law prohibiting same
— Service — failed service excused where advocate changed office and could not be traced
21 March 2019
Successor judge need not assign reasons before trial; special damages require strict proof; counterclaim dismissed.
Civil procedure — Change of judge — reason required only where trial was partly heard and prejudice may arise — Order XVIII Rule 10(1)(2) Civil Procedure Code
Evidence
— Documentary evidence — Annexures to pleadings are not evidence unless formally tendered and admitted during trial
— Proof of special damages — Sufficiency of witness testimony to prove quantified losses
21 March 2019
Award of specific damages was set aside for lack of strict proof; ownership and counterclaim findings otherwise upheld.
Civil procedure — Change of judge — Order XVIII Rule 10 — Successor judge need not assign reasons if taking over before trial starts
Damages — Special damages — Requirement for specific pleading and proof on balance of probabilities
Land law — ownership and possession — Proof of title and possession — Decision must be based on whole evidence, not mere non‑objection
21 March 2019
19 March 2019
Applicant failed to show sufficient reasons for extension of time to appeal against an ex‑parte judgment.
Civil procedure
— extension of time/condonation — Factors for extension: length of delay, reasons, diligence, prejudice, illegality
— Revision — Court of Appeal’s remit limited to examining High Court record for correctness, legality and regularity — Section 4(3) Appellate Jurisdiction Act
— setting aside ex‑parte judgment — Order provisions on setting aside ex parte decrees — Order IX Rule 13(1) Civil Procedure Act
18 March 2019
An encumbered collateral in the respondent’s possession may suffice as security for a stay if its value adequately covers the decretal sum.
Civil procedure — Court of Appeal — Stay of execution
15 March 2019
A mortgaged (encumbered) property cannot serve as security for stay of execution; independent unencumbered security is required.
Civil procedure — Stay of execution — Security for due performance — Whether an encumbered/mortgaged property can constitute sufficient security
15 March 2019
Applicant’s preliminary objection filed under wrong rule was incompetent and struck out; each party to bear own costs.
Civil procedure — Court of appeal rules — preliminary objection — applicant
12 March 2019
Failure to serve the respondent with a written application for High Court copies precluded time exclusion under Rule 90 and the appeal was struck out.
Civil procedure — Appeal competency
12 March 2019
A single High Court judge lacked jurisdiction to determine an Industrial Court appeal; matter remitted to a full bench.
Industrial Court appeals — jurisdiction — requirement for High Court full bench to hear appeals from Industrial Court; Written Laws (Miscellaneous Amendments) Act No.11 of 2003 — preliminary objections on time‑bar and notice — competence of appeal — remedy: quash and remit to full bench.
12 March 2019
Applicant granted limited extension to file witness statements; rule 49(2) mandatory but travel difficulties justified relief, trial judge erred procedurally.
Civil procedure — Commercial Court — Witness statements
— Timing of filing
— mandatory compliance
Civil procedure — Commercial Division
Civil procedure — distinct purposes
Civil procedure — extension of time — good cause — Travel/distance may constitute sufficient explanation to grant extension
11 March 2019
A signed letter of lien created a continuing, co‑extensive guarantee permitting the bank to uplift the guarantor’s renewed FDR without notice.
Banking law — letter of lien
— continuing guarantee
— guarantor’s liability co‑extensive with principal debtor
— renewal/renumbering of FDR does not nullify lien where not discharged
— uplift of fixed deposit receipt as security
8 March 2019
A signed letter of lien created a continuing, co‑extensive guarantee permitting the bank to uplift the pledged fixed deposit.
Banking law — letter of lien — guarantee
— continuing/co‑extensive liability of guarantor
— requirement (or not) for lien to be in loan agreement or mortgage deed
— right of bank to uplift pledged fixed deposit on default without prior notice
8 March 2019
Successor‑Judge s299(1) omission cured by lack of prejudice; assessors’ clarifications and clinical officer post‑mortem admissible; murder conviction upheld.
Criminal procedure
— Appellate review — substantive justice (s3A AJA) and evaluation of malice aforethought factors
— Forensic evidence — clinical officer competent to conduct post‑mortem
— successor Judge duties — omission non‑fatal where no prejudice and accused represented
6 March 2019
Failure to inform accused under s299 is not fatal without prejudice; assessors' clarificatory questions and clinical officer's post‑mortem were valid.
Evidence — role of assessors — Recording of assessors' opinions and distinction between clarification and cross‑examination (s177 Evidence Act)
Evidential weight of medical (PF3) and witness testimony — Medical evidence (PF3) — Competency of clinical officer to conduct post‑mortem — Admissibility of post‑mortem report
Trial procedure — Trial judge's duty — Successor judge's duty under section 299 Criminal Procedure Act — Failure to inform accused of right to have witnesses re‑summoned
6 March 2019
Whether delay in obtaining the drawn order from the Registrar justified extension of time to apply for revision.
Civil procedure
— extension of time — Delay in obtaining court records — Exercise of judicial discretion under Rule 10
— Reference under rule 62(1)(b) — interference only if discretion misdirected or facts misapprehended
6 March 2019
Court corrected its judgment: awarded CMA entitlements, set aside inadequate High Court award, and quashed only disciplinary committee proceedings.
Civil procedure — Review of Court of Appeal judgment — error apparent on face of record — Correction of omission
Labour law
— Disciplinary procedure — right to be heard and to appeal — Quashment limited to disciplinary committee proceedings
— unfair dismissal — Remedial discretion (reinstatement v compensation under s.40(1) ELRA)
5 March 2019
Notice of appeal struck out where respondent failed to institute appeal within prescribed time; overriding objective cannot cure such default.
Appellate practice — Appeal procedure — striking out notice of appeal for failure to take essential step
Appellate practice — Rule 90(1) and (2) — time limits for lodging record and exceptions
Appellate practice — service of process
— overriding objective
— sufficiency of acknowledgment and rubber stamp
5 March 2019
Notice of appeal struck out for failure to institute appeal within prescribed time; overriding objective cannot cure egregious default.
Civil procedure — Appeals
— lodging record and memorandum of appeal
— requesting and serving copy of proceedings
— striking out notice of appeal
Civil procedure — Procedure
Civil procedure — Service of documents — rubber stamp/signature as proof of service
5 March 2019
The applicant obtained a stay of execution pending appeal, conditional on depositing a bank guarantee for the decretal sum.
Appellate practice — Appeal procedure — timeliness of stay application and conditional stays
Civil procedure — Security for stay
— court may prescribe form and timeline
— firm undertaking/bank guarantee may suffice
Civil procedure — Stay of execution pending appeal
5 March 2019
Failure to inform the appellant of s299 rights and assessors' clarification questions were non‑prejudicial; conviction for murder upheld.
Criminal procedure — Trial procedure — Successor judge obligations
Evidence — admissibility of post‑mortem by clinical officer — clinical officer competent to perform autopsy — Post‑mortem report admissible where examiner testifies and is cross‑examined
Evidence — role of assessors — Permissible scope of questions under section 177 Evidence Act
— Questions limited to clarification
— not cross‑examination
4 March 2019
High Court has discretion under section 362(1) CPA to proceed without prior typed proceedings; appeal dismissed and remitted.
Civil procedure — Compliance with s.365(1) — notice and supply of proceedings. Right to fair hearing
— adequate opportunity to be heard
— no abuse of discretion
Civil procedure — preliminary objection — improper where it seeks to challenge legitimate judicial discretion
Criminal procedure — Appeal
1 March 2019
1 March 2019