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Citation
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Judgment date
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| October 2003 |
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A defendant may set aside a default injunction judgment by showing a meritorious defence and that the plaintiff lacks clean hands.
Civil procedure – setting aside default judgment (Order 19 r 9) – defendant must show bona fide defence on the merits (Farden v Richter) – equitable relief and clean hands doctrine – dispensing with service of defence – costs where judgment regularly entered.
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31 October 2003 |
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False accounting in delivery notes does not amount to forgery; confession admissible but full amount of theft not proved.
Criminal law – admissibility of confession where accused alleges police force; forgery vs false accounting – false entries in company documents do not necessarily constitute forgery; theft by servant – requirement to prove amount stolen for sentencing
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29 October 2003 |
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Interlocutory injunction refused because damages were adequate and plaintiff failed to show inability to pay.
Interlocutory injunction — American Cyanamid principles — adequacy of damages — undertaking as to damages — disputed agency and fraud — balance of convenience
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29 October 2003 |
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Cross-examination of a company's affidavit deponent in summary judgment is exceptional and inappropriate where fraud allegations warrant a trial.
Civil procedure – Summary judgment (Order 14/Part 24) – Cross-examination of affidavit deponent – Company officer adopting another affidavit – Leave to cross-examine should be rare and limited – Serious allegations of fraud require trial, not summary oral examination
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28 October 2003 |
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Court refused to dissolve ex parte injunction against sale of intestate estate, finding non-disclosure immaterial and balance of convenience favored maintenance.
Civil procedure — Interlocutory (ex parte) injunction — Non‑disclosure materiality — Application of American Cyanamid principles — Intestate estate — Sale by beneficiary without letters of administration — Balance of convenience and preservation of status quo
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28 October 2003 |
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Court refused to order defendants to pay plaintiffs solicitors directly; upheld judgment for costs, criticized 1999 rules altering indemnity principle.
Civil procedure - judgment in default for liquidated sum; government suits - section 4 notice not required for contractual claims; arbitration - discretion to stay only where appropriate; solicitors lien - no order to compel defendant to pay solicitor directly except in exceptional equitable cases; costs law - Legal Practitioners (Scale and Minimum Charges) (Amendment) 1999 alters indemnity principle, 15% collection charge recoverable as part of judgment but subject to taxation
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22 October 2003 |
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Whether the applicant has standing and whether the expanded ‘crossing the floor’ amendment infringes association and political rights.
Constitutional law — standing — Sections 15(2) and 46(2): broad purposive locus standi for persons/groups protecting rights; constitutional amendment — Section 65(1) (crossing the floor): limits on freedom of association (s.32) and political rights (s.40); referendum requirement — Sections 196/197 and schedule; severance of unconstitutional portions under Sections 5 and 11(3) and jurisdiction s.108(2)
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5 October 2003 |
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On review the court enhanced burglary sentences, finding a six-year starting point and prevailing aggravating factors.
Criminal law – Burglary – Sentencing – High Court starting point six years – Aggravating factors (multiple offenders, no guilty plea, prior convictions) – Disparity in sentences – Sentences enhanced on review
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2 October 2003 |
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A six-year burglary sentence was reduced to four years after balancing aggravating and mitigating factors.
Criminal law – Sentencing – Burglary/housebreaking – sentencing principles and factors – Chizumila six-year starting point; three-year minimum for simple burglary – aggravating factors (violence, vulnerable victim) v. mitigating factors (youth, first offender, guilty plea, cooperation) – review and reduction of manifestly excessive sentence
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2 October 2003 |
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Conviction upheld despite duplicity in the charge where no prejudice existed; burglary sentence found manifestly inadequate but already served.
Criminal procedure – Duplicity in charge/particulars contrary to section 128 – No prejudice vitiating conviction; Sentencing – burglary/housebreaking: Chizumila starting point six years, simple burglary minimum three years; factors: vulnerability of victims, multiple participants, guilty plea, first offender status; late review after sentences served
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2 October 2003 |
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Sentencing for burglary must balance offence seriousness, offender mitigation and victim vulnerability; simple burglary attracts a minimum three-year custodial term.
Criminal law – Sentencing – Burglary/housebreaking – sentencing principles; actus reus and mens rea factors; starting/threshold sentence (Chizumila) – simple burglary minimum three years – mitigation: youth, first offender, guilty plea; victim vulnerability as aggravation
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2 October 2003 |
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Whether duplicity in the charge prejudiced the accused and whether the burglary sentence was manifestly inadequate.
Criminal procedure – Duplicity in charge and section 128 – convictions may be confirmed where defective particulars occasion no prejudice; Sentencing – burglary/housebreaking: sentencing principles, Chizumila starting point (six years), minimum for simple burglary (three years); manifestly inadequate sentence
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2 October 2003 |
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Six-year burglary sentence reduced to three years; courts must prove or put prior convictions to defendant before relying on them.
Criminal law – Sentencing principles for burglary/housebreaking – balancing actus reus, mens rea, offender and victim circumstances – previous convictions must be proved or put to defendant before reliance – simple burglary minimum custodial sentence three years
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2 October 2003 |
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Conviction sustained despite defective plea; sentencing principles for burglary affirmed and inadequate sentence confirmed due to time served.
Criminal law – Plea procedure – Defective plea curable under section 5 where no failure of justice; Criminal law – Sentencing – burglary/housebreaking; Chizumila six-year starting point and three-year minimum for simple burglary; sentencing factors (actus reus, mens rea, offender’s age, antecedents, remorse, victim vulnerability); confirmation of sentence where already served
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2 October 2003 |
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Sentencing for burglary must account for victim vulnerability and disturbance; excessive concurrent sentences were reduced.
Criminal law — Sentencing — Burglary/housebreaking — Chizumila six-year starting point — Factors: victim vulnerability, disturbance, offender’s age/first offender status, plea — Concurrent sentences; manifestly excessive sentence reduced
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2 October 2003 |
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Whether a six-year burglary sentence was excessive given a young first offender and a simple, non-violent trespass.
Criminal law – Sentencing – Burglary – Sentencing factors: nature of offence, offender’s antecedents, victim’s vulnerability, public interest – Six-year threshold for serious burglary; simple burglary minimum three years
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2 October 2003 |
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Court quantified damages for two children’s deaths and plaintiff’s injuries using multiplier method; unpleaded loss of earnings refused.
Damages assessment – death of children – loss of expectation of life and loss of dependency for minors – use of half average industrial earnings and multiplier method – unpleaded heads of damage not recoverable – awards for funeral and medical incidentals following default judgment
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1 October 2003 |