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Citation
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Judgment date
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| December 2005 |
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Revision unavailable where an appeal lies; applicant must appeal decision on competence and jurisdiction.
Civil revision; preliminary objection; right to appeal; jurisdiction and competence of proceedings; revision unavailable where right of appeal exists (Matemba v Yamulinga).
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30 December 2005 |
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Where an appeal is available, a revision application is inappropriate; the applicant must appeal.
Civil procedure – Revision versus appeal – Revision lies only for material error on face of record; where an appeal is available, revision does not lie; jurisdictional rulings by lower courts are challengeable by appeal.
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30 December 2005 |
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Rape conviction quashed where prosecution witnesses’ account was found fabricated and inherently implausible.
Criminal law – Rape – Credibility of complainant and eyewitnesses – Fabrication of evidence – Appellate review of safety of conviction – Relevance of prior consensual relations and timing of Sexual Offences Act.
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30 December 2005 |
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Appeal allowed: conviction quashed because complainant and witness evidence was found fabricated and unsafe.
Criminal law – Evidence – Credibility of complainant and witness – Improbabilities and inconsistencies undermining prosecution case; Sexual offences – Non-retrospectivity of Sexual Offences Special Provisions Act No.4 of 1998; Unsafe conviction – quashing where principal evidence fabricated or unreliable.
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30 December 2005 |
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Appeal dismissed: house was a jointly acquired matrimonial asset and may be sold with proceeds equally divided.
Matrimonial property – determination of matrimonial asset – whether asset was acquired during marriage or after separation; Sale of matrimonial property – ordering sale and equal division of proceeds; Children’s interest – retention of property for children versus parental maintenance obligations; Registration in children’s names – effect on distribution of matrimonial assets.
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30 December 2005 |
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Appeal dismissed; child's testimony corroborated by medical and eyewitness evidence; no identification parade or voir dire required.
Criminal law — Rape — Evidence of child of tender years — corroboration by police report, eyewitness bleeding, and medical finding of semen; Identification — no parade required where victim knew accused and assault occurred in daylight; Voir dire — not necessary where child’s identification is clear; Defence evaluation — allegations of coaching require evidence.
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30 December 2005 |
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Appeal dismissed: child’s clear identification and corroborative medical and eyewitness evidence upheld conviction.
* Criminal law – Rape – Evidence of child of tender years – corroboration by police report, eyewitness account and medical evidence.
* Identification – No parade required where victim knew accused and offence occurred in daylight.
* Procedure – Voire dire not mandatory where child witness gives clear identification.
* Defence – Accusations of coaching/grudge require evidence; failure to show such evidence is fatal.
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30 December 2005 |
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A magistrate erred by dismissing a suit without hearing; a prior court-ordered sale did not bar the claim of a non-party.
Civil procedure — preliminary objection — dismissal without hearing — pre-judgment/abdication of judicial duty — res judicata — prior court-ordered auction does not bind non-parties — remittal for rehearing.
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30 December 2005 |
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Appeal allowed: conviction quashed due to fabricated, unreliable witness evidence and non‑retroactive application of 1998 Act.
* Criminal law – Rape – Credibility of complainant and accompanying witnesses – Improbabilities and inconsistencies may render prosecution case unsafe. * Criminal law – Fabrication of evidence – Group-collusion to manufacture charges. * Statutory interpretation – Sexual Offences Special Provisions Act No.4 of 1998 – No retrospective application to conduct occurring before enactment.
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30 December 2005 |
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An equivocal guilty plea that fails to record essential elements of the offence renders the conviction null and void.
Criminal law – plea of guilty – equivocal plea – requirement that recorded facts disclose essential ingredients of the offence (rape) – conviction based on inadequate facts null and void – sentence set aside – release order.
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30 December 2005 |
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Nighttime victim identification and unsupported alibi justified conviction and the 15-year deterrent sentence; appeal dismissed.
Criminal law – robbery; identification at night by victim-witnesses; sufficiency of evidence; uncorroborated alibi; sentence proportionality and deterrence.
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30 December 2005 |
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Carrier held partly liable for bird deaths for failing to mitigate; damages adjusted for insufficient proof.
* Contract & Carriage – carriage of live animals; carrier’s duty to mitigate loss after delay.
* Civil procedure – parties cannot amend or introduce issues by final written submissions; framing of issues is court’s function (Order XIV).
* Evidence – special damages require proof; absence of proof defeats claims for specific sums (prepaid freight).
* Damages – appellate review may reduce general damages where award lacks evidential basis.
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29 December 2005 |
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Appeal partly allowed: carrier held partly negligent; general damages reduced and unproven prepaid freight rejected; each party to bear own costs.
Contract and carriage of goods by air – delay and death of live animals – carrier's duty to take reasonable measures to avoid loss – Order XIV CPC issues framing – parties cannot introduce new issues by written submissions – assessment of general and special damages – requirement of proof for special damages; rejection of unproven prepaid freight claim.
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29 December 2005 |
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Carrier found partly negligent for failing to mitigate loss after rerouting; damages adjusted and prepaid freight claim rejected.
• Contract and carriage of goods – live animals – carrier’s duty to mitigate loss after rerouting and delay due to weather.• Civil procedure – framing of issues – court’s discretion to frame/amend issues; parties cannot introduce new issues by way of submissions.• Damages – need for evidentiary proof for special damages; assessment and reduction of unsupported general damages.• Proof of payment – claimant must prove prepaid freight to recover it.
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29 December 2005 |
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Applicant's complaints about locus visit, prior case and denial of defence rejected; appeal dismissed.
Criminal procedure – locus in quo visits – timing of site inspection does not automatically vitiate proceedings; Distinct offences – separate prosecutions for separate intrusions; Right to defend – opportunity to testify and call witnesses shown on record; Witness relevance – lack of shared boundary does not per se disqualify testimony.
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28 December 2005 |
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28 December 2005 |
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Long permissive occupation induced by a relative does not amount to adverse possession; the respondent was a licensee.
* Land law – Adverse possession v. licensee – whether permissive occupation, maintained by a third party's interventions, constitutes adverse possession.
* Possession – effect of owner’s repeated demands and third‑party interference on acquisition of title by long possession.
* Compensation – entitlement for improvements by a permissive occupant.
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27 December 2005 |
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A sale in defiance of a valid prohibitory order is void; the appellant who bought at auction is a bona fide purchaser.
* Property law – Prohibitory orders/attachment – Effect of sale made in defiance of a prohibitory order – Sale void and no title passes. * Auction sales and execution — Court-ordered sale purchaser as bona fide purchaser entitled to possession. * Remedies — aggrieved private purchaser to recover price from vendor’s estate.
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26 December 2005 |
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Court upheld Taxing Master’s instruction-fee award; interference only for wrong principle or manifest excess.
Taxation — instruction fees; discretion of Taxing Master; interference only for wrong principle or manifestly excessive award; Advocates Remuneration and Taxation of Costs Rules (Schedule IX) as guiding scales; instruction fee accrues once defence filed; relevance of claim value in taxation.
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22 December 2005 |
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Appeal dismissed: prosecution proved cattle theft beyond reasonable doubt; appellant's ownership defence uncorroborated.
Criminal law – Cattle theft – Proof beyond reasonable doubt – Eyewitness identification and possession shortly after offence; cautioned statement (Exh. P.1) as supporting evidence; defence of ownership or permission requiring credible corroboration; assessment of credibility and circumstantial factors (time, place, conduct).
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21 December 2005 |
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PSI scheme created enforceable duties to the importer; SGS issued CRFs without inspection, breached duty and was liable for losses.
Pre-shipment inspection scheme – PSI contract between SGS SA and TRA – duties and rights for importers arising by virtue of IDFs/CRFs – professional duty of care – issuance of Clean Reports of Findings without inspection – liability for pure economic loss – refusal of destination/post-shipment inspection – damages and interest.
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21 December 2005 |
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Ex parte application to restrain announcement of election results dismissed for insufficient evidence and lack of irreparable harm.
* Election law – interim injunction to restrain declaration of results – applicant must show sufficient evidence and irreparable harm. * Civil Procedure Code s.68(e) – interlocutory relief must be just and convenient. * Evidence – photocopies of polling forms (secondary documents) insufficient for ex parte relief. * Relief denied where applicant concedes no prospect of winning and loss alleged is merely numeric vote tallies.
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20 December 2005 |
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Court dismissed ex parte application to restrain announcement of presidential results for lack of credible evidence and irreparable harm.
Electoral law — interlocutory relief — ex parte injunction to restrain announcement of election results — sufficiency of evidence — photocopies vs originals — irreparable harm requirement — discretionary refusal to grant interim order.
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20 December 2005 |
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19 December 2005 |
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Plaintiffs' subsistence claims failed for lack of a pleaded nexus to the defendant and thus disclosed no cause of action.
* Industrial/Employment law – trade dispute – definition under section 3 of the Industrial Court Act – dispute connected with employment or non-employment.
* Civil procedure – preliminary objection – failure to disclose cause of action – requirement of nexus between defendant and claim.
* Jurisdiction – limits of High Court original jurisdiction where Industrial Court procedures and trade disputes apply.
* Successor liability – obligations of transferee institutions for liabilities of prior employer – necessity of pleading assumption of liability.
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19 December 2005 |
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The applicants' subsistence-allowance claim failed for lack of nexus to the respondent and due to trade-dispute jurisdiction.
* Trade dispute – definition and jurisdiction under the Industrial Court Act – disputes connected with employment fall within Industrial Court jurisdiction. * Cause of action – requirement to show legal nexus between claim and defendant; lack of nexus defeats claim. * Execution/attachment – prior appellate finding (Civil Appeal No.293/01) relevant to liabilities and asset attachment. * Subsistence allowance – characterized as arising from delayed terminal benefits; pleaded claim must link defendant to employer's liabilities.
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19 December 2005 |
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19 December 2005 |
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Application to file Notice of Appeal and appeal out of time dismissed: alleged prison inaction insufficient given strength and seriousness of conviction.
Criminal procedure – extension of time – leave to file Notice of Appeal and appeal out of time; notice required by s.361(a) CPA; sufficiency of reasons test (Republic v Yona Kaponda) – delay considered together with nature of decision, surrounding circumstances and weight of issues; prison officers’ alleged inaction; seriousness of offence and statutory minimum sentence; uncontradicted victim evidence.
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16 December 2005 |
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16 December 2005 |
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An appeal filed beyond the 30-day statutory limit without leave is incompetent and is struck out with costs.
Appeal and procedure; statutory time limit for appeals (section 25(1)(b), Magistrates' Courts Act) — late filing without leave renders appeal incompetent; land law — possession and occupation as title, encroachment; appellate review of factual findings.
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16 December 2005 |
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16 December 2005 |
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16 December 2005 |
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Conviction for robbery was quashed due to unsafe night identification and unexplained delay in arrest.
* Criminal law – Robbery with violence – Identification evidence – Reliability of night-time identification by limited light. * Criminal procedure – Delay in arrest – Unexplained lapse undermining prosecution case. * Criminal law – Arrest for harbouring suspect – Distinction between primary perpetrator and harbouring suspicion. * Appeal – Conviction unsafe – Quashing conviction and setting aside sentence and compensation.
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16 December 2005 |
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16 December 2005 |
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16 December 2005 |
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Conviction quashed due to improper charge, procedural irregularities and lack of corroboration of accomplice evidence.
Criminal law — Charge formulation — s.326(6A) Penal Code deals with malicious injury, not theft under s.258; procedural irregularities in preliminary hearing (s.192, GN No.192/1988); reliance on co‑accused/accomplice evidence requires warning and corroboration; evidence tainted by familial disputes cannot serve as reliable corroboration; alibi notice (s.194) discretionary in weight; cumulative defects may amount to failure of justice requiring quashing of conviction.
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16 December 2005 |
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15 December 2005 |
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The appellants' convictions were quashed for insufficient evidence, unreliable identification, and possibility the theft occurred while off-duty.
Criminal law – sufficiency of evidence; identification evidence – reliability and motive; circumstantial evidence – shifting of burden where theft may occur off-duty; absence of link between opened padlocks (keys) and accused.
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15 December 2005 |
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15 December 2005 |
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15 December 2005 |
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15 December 2005 |
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A party may raise a preliminary objection after a pre‑trial order if new developments, such as a pending appeal, arise.
Civil procedure — Pre‑trial scheduling order — Raising preliminary objections after scheduling order when new facts arise; Subjudice — effect of subsequent appeal on pending suit; Court’s power to vary pre‑trial orders — s.95 Civil Procedure Code — interest of justice.
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15 December 2005 |
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15 December 2005 |
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Municipal order to relocate an allegedly obstructive billboard was reasonable and did not breach natural justice.
Administrative law – Judicial review – Certiorari, prohibition and declaratory relief – Municipal authority to order removal/relocation of advertising signage – Reasonableness, safety and nuisance considerations – Alleged breach of natural justice.
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15 December 2005 |
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15 December 2005 |
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15 December 2005 |
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A dispute over competing purchases of the same land is civil in nature; criminal trespass proceedings are inappropriate and appeal dismissed.
* Criminal law – Trespass – Where competing claims of purchase create a dispute over title, the matter is civil not criminal; criminal prosecution for trespass is inappropriate. * Civil procedure – Remedy for competing land claims – Title disputes must be resolved by civil action rather than criminal courts. * Appellate jurisdiction – Criminal appellate court lacks mandate to determine the legality of land sales underlying rival title claims.
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15 December 2005 |
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Parties may raise preliminary objections after a pre‑trial scheduling order if new events, like a later appeal, make the suit subjudice.
Civil procedure – Preliminary objections – Whether a party may raise a preliminary objection after a First Pre‑Trial scheduling order when new circumstances arise; Sub judice – objection based on a subsequent appeal; Court’s power to depart from scheduling orders in the interests of justice.
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15 December 2005 |
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Joinder of an official receiver is permissible under Order 1 r.3 and r.5; preliminary objection dismissed with costs.
Civil Procedure – Joinder of parties – Order 1 r.3 permits joining persons against whom a right to relief arises from the same act/transaction – Official receiver may be joined where plaintiff may obtain relief from receiver – Order 1 r.5: defendants need not be interested in all reliefs claimed.
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15 December 2005 |
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Joinder of an official receiver as defendant was proper under Order 1 r.3 and r.5; preliminary objection dismissed.
Civil Procedure — Joinder of parties — Order 1 r.3 & r.5 CPC — Joinder permissible where right to relief arises against receiver of a defendant — Not necessary for every defendant to be interested in all reliefs.
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15 December 2005 |