Results.
19 judgments found.
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| March 2007 |
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Court stayed magistrate’s order releasing a seized vehicle pending investigation and appeal due to theft suspicion.
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Civil procedure — Stay of execution pending appeal — Discretionary relief; factors include risk that appeal will be nugatory, inability to restore status quo and ongoing criminal investigations (INTERPOL evidence, temporary import permit); ownership dispute over seized vehicle
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28 March 2007 |
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Conviction for co-possession of a prohibited firearm upheld; 12-year sentence reduced to 5 years as excessive.
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Firearms Act s16(1)(a) — possession of prohibited weapon; constructive possession (Penal Code s4) and common design (Penal Code s22); accomplice evidence and corroboration (Criminal Procedure and Evidence); sentencing discretion and reduction for excessiveness
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28 March 2007 |
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Attempted rape conviction and five-year sentence upheld; customary compensation did not bar prosecution.
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Criminal law — Attempted rape — elements: intent and overt act — fondling, struggle and torn underwear as evidence of attempt and intent — customary compensation does not bar criminal prosecution — sentence review.
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27 March 2007 |
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Court reduced an eight‑year robbery sentence to one year, stressing youth, first‑offender status and proportionality.
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Criminal law — Robbery (s.301 Penal Code) — sentencing — aggravating factors: acting in company and personal violence — mitigating factors: youth, student and first‑offender status, opportunistic/drunken commission — proportionality and rehabilitation — reduction of sentence.
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27 March 2007 |
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Sentences for young, first-time robbers with opportunistic, intoxication-linked conduct were reduced for proportionality and rehabilitation.
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Criminal law — Robbery (s.301 Penal Code) — Sentencing — aggravating factors: in company, personal violence — mitigating factors: youth, student status, first offender, intoxication, opportunistic offence — proportionality and rehabilitation — substantial reduction of sentence.
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27 March 2007 |
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Court upheld Count 1 as non‑duplicitous but struck down Count 2 for insufficient particulars; State to amend and reprosecute for plea.
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Criminal law — duplicity — "refuse or neglect" allegation not duplicitous; particulars — sufficiency of particulars and requirement to state specific instruction breached; multiplicity of counts — same money charged in multiple counts; alternative charging — theft by servant vs theft by public servant; amendments to indictment require fresh plea
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26 March 2007 |
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Whether the Malawian employer could be held liable for salary and retirement obligations assertedly promised by its Mozambican branch.
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Labour law — Appeals from Industrial Relations Court — s.65 Labour Relations Act: deference to IRC factual findings; corporate personality — branch versus separate legal entity; transfer of employment obligations between related operations; evidence and appellate review.
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22 March 2007 |
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Appeal dismissed; IRC findings of continuous employment and entitlement to US$1,300 salary and retirement benefits upheld.
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Labour law — s65 Labour Relations Act: appeals from Industrial Relations Court limited to questions of law; corporate personality — branch versus separate entity; employment contract obligations across company branches; admissibility and sufficiency of documentary and testimonial evidence; unfair unilateral salary reduction; entitlement to retirement benefits.
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22 March 2007 |
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Early retirement with employer consent is termination by mutual agreement; severance payable from start of employment, ministerial amendments invalid.
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Employment law — early retirement as termination by mutual agreement — Section 35(1) Employment Act 2000 — retrospective effect of severance provisions — ultra vires ministerial amendments to First Schedule (2002/2004) — Section 35(8) directory — legal collection charges and costs in labour matters
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22 March 2007 |
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Court upheld Registrar’s allowance of amendment changing defendant’s capacity and dismissed appeal challenging procedural defects.
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Civil procedure — amendment of writ — court’s discretion to allow amendments including change of capacity — dispensation of re-service — limitation defence must be specifically pleaded — undated order not necessarily void — procedural irregularities curable under Order 2
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22 March 2007 |
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Court reduced an excessive 10-year burglary sentence to 48 months for a youthful first offender.
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Criminal law — Burglary and theft — Sentencing — Excessive sentence — Youthful first offender — Mitigating factors — Starting point for burglary 6 years IHL — Reduction to 48 months
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21 March 2007 |
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Conviction for abduction under s136 upheld; sentence reduced from 21 to 3 months due to mitigation and excessiveness.
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Criminal law — Abduction (s136 Penal Code) — protection of unmarried girls under 16 — parents/guardians as complainants — guilty plea limits appeal against conviction — customary marriage and constitutional age provisions — manifestly excessive sentence reduced
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21 March 2007 |
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Equitable owner in possession entitled to mandatory and interlocutory injunctions to remove defendant’s boat from the land.
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Property law — equitable ownership and possession — trespass actionable without proof of damage — mandatory injunctions require an unusually strong case — interlocutory injunction to remove chattels (boat) from purchased land — practical difficulty (tide) insufficient to deny injunctive relief
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21 March 2007 |
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Attachment under Order VIII was wrongly invoked where ownership was disputed, but the court kept the (amended) attachment order in force.
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Civil procedure — Attachment of chattels — Order VIII (High Court Rules) applies to defendant's property — Disputed ownership requires preservation application under Order 29/2 (Rules of Supreme Court) — Specificity of property required — Court's discretion to preserve ex-parte order despite procedural error
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18 March 2007 |
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Customary marriage dissolved for the wife's conduct; respondent ordered to pay child maintenance and school fees.
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Customary marriage — dissolution for spouse’s misconduct (ill-temper, neglect of domestic duties, abusive conduct) — matrimonial house obligation under chikamwini/matrilineal system — property division — child maintenance paramount regardless of fault
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18 March 2007 |
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Appellant improperly charged under s359(f) for conventional forgery; charge substituted to s356 and sentences reduced.
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Criminal law — Forgery — Incorrect statutory charge (s359(f) v s356) — Substitution of charge on appeal — Uttering false document (s360) — Sentencing reduction for plea and first offender — s353(2)(a)(ii) powers
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18 March 2007 |
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Contract for sale of goods: plaintiff supplied goods to specification; defendant's quality complaint not proved, plaintiff awarded unpaid price and loss of profits.
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Contract for sale of goods — description and specifications — interpretation of proforma invoice and order; burden of proof on quality complaint; commercial testing (SGS/South African Wheat Board) v. Malawi Bureau of Standards; breach/repudiation for non-payment; damages for unpaid price and loss of profits; counterclaim dismissed
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16 March 2007 |
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State failed to adduce requisite affidavit evidence to show interests of justice; applicant granted bail pending trial.
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Bail pending trial — interests of justice — onus on the State to produce affidavit particulars under Bail (Guidelines) Act s.3 Part II — absence of post-mortem — alleged coerced confession — failure to justify continued detention
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15 March 2007 |
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Whether the State met its onus to oppose bail where only a rifle magazine, not a linked firearm, was found.
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Bail — onus on State to show bail should be refused — affidavit evidence and credibility assessment — possession of magazine insufficient without connection to firearm — postponement under s.2 Part II Bail (Guidelines) Act No.8 of 2000 to allow further evidence
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1 March 2007 |