Results.
49 judgments found.
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| December 2022 |
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Whether gratuity under fixed‑term university contracts qualifies as a statutory pension benefit and requires payroll retention.
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Constitutional law
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— Pensions — Definition and requirement that pension benefits be granted by or under an Act of Parliament — Article 187 and Article 266
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— Payroll retention — Application of Article 189(2) where a statutory pension benefit is unpaid — Retention on payroll pending payment
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Employment law — Fixed‑term gratuity v statutory pension — Applicability of section 38(3)(b)(iii) of the Higher Education Act to public university employees
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12 December 2022 |
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Election nullification requires candidate‑linked misconduct and widespread effect proved to a high degree of convincing clarity.
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Electoral law — election petitions — standard of proof: 'fairly high degree of convincing clarity' required; section 97(2)(a) twofold threshold — misconduct by candidate or with knowledge/consent and widespread effect; partisan witnesses require corroboration; burden of proof on petitioner; appellate review of factual findings; absence of trial Judge’s handwritten notes does not necessarily render record incomplete.
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8 December 2022 |
| November 2022 |
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Court dismisses petition for stay, holding disciplinary body acted within mandate and petition was abuse of process.
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Constitutional jurisdiction — stay as interim relief — disciplinary body’s statutory mandate — sub judice and parallel proceedings — multiplicity of actions and abuse of process.
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23 November 2022 |
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Joinder refused where applicant failed to show the proposed party had sufficient interest or nexus to the constitutional petition.
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Civil procedure — Joinder under Order 5 r.4(b) CCR — Discretionary power — Requirement of sufficient interest or nexus — Joinder refused where no claim against proposed party in constitutional petition.
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11 November 2022 |
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Refusal to release court-held funds due to revoked letters of administration did not breach judicial independence or Article 160.
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Judicial independence — Article 122 — alleged interference by court staff refusing to effect payment; Intestate Succession Act — requirement of valid letters of administration; Article 160 — enforcement against local authority; monies paid into court.
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10 November 2022 |
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Court dismisses functus officio objection and allows constitutional challenge to section 30 (costs) to proceed to hearing.
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Constitutional law — jurisdiction — functus officio and finality — whether Constitutional Court can be barred from hearing a fresh constitutional challenge to section 30 (costs) — petition alleging contravention of the Constitution to be heard on merits.
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10 November 2022 |
| October 2022 |
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Appellants failed to prove bribery or ineligibility to the required standard; election result upheld and appeal dismissed.
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Election law — Electoral Process Act s.97(2)(a),(c) — bribery/donations — agency and knowledge/consent of candidate — requirement that misconduct be widespread to affect result — candidate qualification and grade 12 equivalency — burden and elevated standard of proof in election petitions.
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27 October 2022 |
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Whether prescribed numbers of superior court judges are mandatory minima or maximums and whether non‑appointments breach the Constitution.
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Constitutional interpretation — composition of superior courts; prescribed numbers as maximums not mandatory minima; appointment of judges — Judicial Service Commission and President; Article 274 "as occasion requires"; mandamus relief; administrative/resource considerations.
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21 October 2022 |
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Appellant failed to prove electoral misconduct tied to the candidate or agents; appeal dismissed and election upheld.
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Electoral law — Section 97(2) Electoral Process Act — proof to convincing clarity that corrupt/illegal practice committed by candidate or with candidate’s knowledge/consent or agent — linkage requirement; appellate standard for disturbing factual findings; substantial conformity doctrine — when electoral flaws do not warrant annulment.
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21 October 2022 |
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The 21‑day constitutional time limit for hearing nomination challenges cannot be stopped or extended by any court or authority.
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Constitutional law — Interpretation of Article 52(4) — Nomination challenges — Mandatory twenty-one day hearing period — "Shall" as mandatory — Stay of proceedings cannot stop or extend constitutional time limit — High Court divested of jurisdiction when time expires — (Obiter) Court of Appeal lacking jurisdiction on Article 52(4) matters.
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20 October 2022 |
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Whether the Electoral Commission breached Article 52(6) by not cancelling elections after candidate resignations, and effect of a court stay.
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Constitutional law — Article 52(6) (cancellation and fresh nominations after resignation) — interplay with Article 57(1) 90-day rule; effect of court stay on electoral duties; jurisdictional limits on challenging nominations (Article 52(4) and High Court competence).
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17 October 2022 |
| September 2022 |
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Whether campaign development projects constituted bribery nullifying the election; costs order set aside for lack of adverse finding.
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Electoral law — bribery (s.81 EPA) — nullification threshold (s.97(2)(a)) — burden and standard of proof in election petitions — materiality requirement — costs in election petitions require finding of vexatious conduct.
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29 September 2022 |
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Whether a parliamentary election appeal was competently before the Constitutional Court after High Court leave to appeal out of time was granted.
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Constitutional Court — Election appeals — Appellate jurisdiction under Article 128(1)(d) — Leave to appeal out of time — Competence of appeal — Relevance of single-Judge proceedings under separate cause number — Preliminary jurisdictional objections dismissed.
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23 September 2022 |
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Failure to prove that contractual gratuities are statutory "pension benefits" defeats constitutional payroll-retention protection under Article 189.
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Constitutional law — Article 189 & 266 — "pension benefit" definition — gratuity vs pension — requirement to show statutory pension entitlement; employment law — payroll retention pending pension payment; jurisdiction — IRD competence and forum shopping.
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21 September 2022 |
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Petition dismissed for failure to plead the specific constitutional contravention; Court did not decide whether re-payment of nomination fees was permissible.
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Constitutional procedure — Electoral law — Article 52(6) (cancellation of election) — nomination fees — Constitutional Court jurisdiction — pleadings requirement under Order IV Rule 1(2) — petition must expressly state the constitutional provision alleged to be violated — skeleton arguments cannot amend deficient pleadings.
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20 September 2022 |
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Article 72(4) bars only those who caused vacancies in the specific instances listed in Article 72(2); judicial nullification is excluded.
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Constitutional law — Interpretation of Article 72(4) — "Causing a vacancy" — Distinction between nullification and disqualification — Mode of commencement: Originating Summons vs election petition; Electoral Commission nominations.
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7 September 2022 |
| August 2022 |
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Appeal dismissed for failure to prove electoral malpractice and its widespread effect under section 97(2) of the Electoral Process Act.
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Election petitions — standard of proof: fairly high degree of convincing clarity; Electoral Process Act s.97(2)(a) and (b) — twofold requirement (commission by candidate/agent or with consent, and widespread effect on results); Election agent — person named in nomination papers; Credibility and corroboration of partisan witnesses; Non-compliance must be shown to have affected results.
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31 August 2022 |
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The DPP is amenable to the JCC’s disciplinary/removal process under Article 182(3) read with Articles 143 and 144.
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Constitutional interpretation — Article 182(3) — DPP’s amenability to Judicial Complaints Commission — Articles 143, 144 and 236 read together — originating summons jurisdictional limits.
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31 August 2022 |
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25 August 2022 |
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Court dismissed the appellant's preliminary motion as unnecessary, scheduled the respondent's review application, and ordered each party to bear own costs.
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Constitutional procedure — functus officio — review of final decision — exceptional circumstances and fresh evidence — motions upon motions; procedural efficiency; leave to file heads of argument out of time.
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24 August 2022 |
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Whether a candidate’s Grade 12-based eligibility can be challenged at election stage and who bears the evidential burden.
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Election law — eligibility for Parliament — Grade 12 certificate requirement (Art 70(1)(d)) — nomination challenge (Art 52(4)) v election petition (s97(2)(c)) — middle standard of proof in election petitions — shifting evidential burden — failure to produce documentary proof — costs (s109 EPA).
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3 August 2022 |
| July 2022 |
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Petitioner failed to prove misconduct or material non-compliance affecting the election; election declared valid.
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Electoral law — election petitions — burden and standard of proof; partisan witnesses and corroboration; section 97(2)(a),(b),(4) EPA — misconduct versus substantial compliance; admissibility of documentary evidence — Evidence Act s.3(1); scope of pleadings and trial by ambush; minor procedural irregularities not vitiating election result.
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29 July 2022 |
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Petitioner failed to prove, to the required high standard, that alleged electoral malpractices were widespread enough to void the election.
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Electoral law — s.97(2)(a) Electoral Process Act — standard of proof: fairly high degree of convincing clarity — attribution to candidate or election/polling agent — requirement to prove malpractice was widespread and affected majority — corroboration and quantitative evidence (statistics) — Gen 20/clerical irregularities and substantial conformity.
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29 July 2022 |
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Election nullified: court found proven violence, treating and canvassing with appellant’s knowledge; annulment confirmed, appeals dismissed.
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Electoral law — nullification threshold under s.97(2) EPA; violence and widespread misconduct; knowledge, consent and association with non-agent militias; standard of proof in election petitions (fairly high degree of convincing clarity); bribery and treating; canvassing on polling day; judicial notice of notorious campaign symbols.
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28 July 2022 |
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A renewed application from a single-judge ruling must be by summons; improperly commenced motion dismissed, corrected record ordered.
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Constitutional Court procedure — mode of commencement of renewed applications from single-judge rulings — summons required (Order 59 White Book) — improper commencement by notice of motion deprives Court of jurisdiction — amendment of appeal record — inherent jurisdiction (Article 271) to order substitution of illegible pages.
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15 July 2022 |
| June 2022 |
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Failure to file heads of argument with the record of appeal mandates dismissal absent a court-ordered extension.
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Constitutional Court procedure — Order XI r.5 mandatory filing of record of appeal with heads of argument — r.6 dismissal for want of prosecution — extension of time required — Article 118(2)(e) does not abrogate rules.
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24 June 2022 |
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Failure to file heads of argument with the record of appeal as required by the Rules warrants dismissal for want of prosecution.
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Electoral law; civil procedure — Order XI rule 5 (mandatory filing of record of appeal with heads of argument); Order XI rule 6 (dismissal for want of prosecution); extension of time; competence of appeal; election petition.
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24 June 2022 |
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An unproven, isolated act of violence during results counting cannot, without clear proof of effect on voters, nullify an election.
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Electoral law — election petitions — section 97(2)(a) and (b) — counting and announcement part of electoral process — standard of proof: high degree of convincing clarity — isolated or unproven incident insufficient to nullify election — section 36: absence of agent/ candidate — evaluation of partisan evidence.
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22 June 2022 |
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Court refused to stay the President’s removal of the applicant judge because the decision was implemented and merits require full hearing.
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Constitutional law — Stay of execution — Removal of judge — Discretionary nature of stay — Implemented executive decision leaves nothing to stay — Merits cannot be decided at preliminary stage; judicial review authorities distinguished.
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20 June 2022 |
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Alleged electoral malpractices lacked corroboration and widespread impact required to void the election; costs order set aside.
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Electoral law — Section 97(2)(a) Electoral Process Act — nullification requires proof of candidate’s corrupt/illegal practice and that it was widespread or prevented the majority from electing their choice — high standard of proof — allegations of distribution of money and bicycles, threats, campaigning on polling day, and use of government resources — corroboration and scope of misconduct — costs under section 109 EPA.
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16 June 2022 |
| May 2022 |
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Constitutional Court may stay criminal proceedings pending determination of constitutional questions, including where immunity or nolle prosequi is alleged.
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Constitutional law — Jurisdiction of Constitutional Court — Article 128(2) — Stay of criminal proceedings pending determination of constitutional questions — Civil proceedings arresting criminal investigations/proceedings — Immunity agreements and nolle prosequi — Abuse of process.
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19 May 2022 |
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Filing the record of appeal outside the 30‑day period without leave renders the appeal incompetent and dismissible.
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Constitutional Court Rules — Order 11 r.5 & r.6 — mandatory filing of Record of Appeal within 30 days; jurisdiction — effect of filing out of time without leave; appeals — incompetence and dismissal for want of prosecution; procedural non-compliance not excused by inherent jurisdiction; inability to consider record defects where appeal is incompetent.
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16 May 2022 |
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Appeal dismissed where the Record of Appeal was filed late without leave, rendering the appeal incompetent.
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Constitutional Court jurisdiction — Election petition appeal — Compliance with Order 11 rule 5 CCR — Mandatory filing of Record of Appeal and heads within 30 days — Late filing without leave renders appeal incompetent — Dismissal for want of prosecution under Order 11 rule 6 CCR.
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16 May 2022 |
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Appellate court reversed nullification: petitioners failed to prove widespread, high-standard electoral malpractice and some agent-attributions were unsupported.
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Electoral law — s.97(2)(a) EPA — standard of proof in election petitions (high degree of convincing clarity); Election/polling agent: strict statutory definition; Vote-buying/treating: ferrying, feeding and gifts; Philanthropy vs bribery — donation followed by solicitation; Majoritarian/widespread threshold — requirement to show how many wards or voters were affected; Attribution of misconduct by campaign supporters or traditional leaders; Appellate interference with factual findings.
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5 May 2022 |
| April 2022 |
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Appellate court reversed nullification: petitioners failed to prove bribery and widespread undue influence to required high standard.
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Electoral law — s.97(2)(a) E.P
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Act — twofold high standard: candidate liability (personal or by named agent) and widespread effect on majority voters — necessity of corroboration for partisan witness evidence — appellate intervention where trial judge fills evidential gaps
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13 April 2022 |
| March 2022 |
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Election nullification requires proof that a candidate's or agent's corrupt practice was widespread and influenced the majority.
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Election law — corrupt practice/inducement (distribution of food) — agency of election/polling agents — burden and standard of proof in election petitions (fairly high degree of convincing clarity) — majoritarian principle (widespread misconduct affecting majority) — partisan witnesses require corroboration — appellate interference for improper inference.
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25 March 2022 |
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A Member of Parliament whose election is nullified and who appeals to the Constitutional Court retains the seat pending determination of the appeal.
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Constitutional interpretation — Articles 72(2)(h) and 73(3)-(4) — Distinction between nullification and disqualification — Purposive interpretation to avoid absurdity — Retention of parliamentary seat pending appeal to Constitutional Court — Legislative lacuna on vacancies.
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22 March 2022 |
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Whether non-publication of presidential asset declarations breached Article 52(3) absent statutory prescription.
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Constitutional law — Article 52(3) — publication of nomination papers and affidavits — referential incorporation of statutory declaration of assets (GEN 5) into presidential affidavit (GEN 4) — meaning of "prescribed" — requirement for Act or subsidiary legislation — Electoral Process Act and Regulations prescribe publication for local/parliamentary candidates but omit presidential candidates — failure to prescribe prevents finding of constitutional breach.
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14 March 2022 |
| February 2022 |
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Disciplinary discharge does not trigger Article 189(2) payroll retention; payment was a pension refund, not a pension benefit.
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Constitutional law — Article 189(2) — retention on payroll until pension payment — pension benefit v. pension refund — disciplinary discharge not equivalent to retirement — Public Service Pensions Act No. 35 of 1996 supersedes earlier pensions regulations.
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28 February 2022 |
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Presidential assent within Article 66 timeframes remains valid after Parliament's dissolution.
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Constitutional law — presidential assent to Bills — post-dissolution assent — Article 66 timeframes — legislative vs executive functions — Article 81 dissolution — Article 66(6) deemed assent — comparative law (US, Australia).
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25 February 2022 |
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Whether an appellate court should admit fresh evidence under s25(1)(b) where documents were available before trial.
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Constitutional Court Act s25(1)(b) — appellate power to order production of documents and call witnesses; Fresh evidence on appeal — exceptional admission; Ladd v Marshall test (non‑availability, materiality, credibility); Finality of litigation; White Book Order 59 r.10 guidance.
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24 February 2022 |
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An election may only be annulled where widespread malpractice by the candidate or agents is proved to a high degree of convincing clarity.
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Electoral law — Election nullification — Section 97(2) Electoral Process Act — Burden of proof in election petitions (fairly high degree of convincing clarity) — Proof of malpractice by candidate or with candidate’s knowledge/consent — Credibility and corroboration of partisan witnesses — Tribunal’s misdirection and burden-shifting — Costs under section 109 EPA.
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15 February 2022 |
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Tribunal properly exercised discretion on cross-examination; petitioner failed to meet burden to nullify the election.
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Election law — procedure in election petitions — affidavit evidence and tribunal's power to order personal attendance and cross-examination — burden of proof in nullification under section 97(2) of the Electoral Process Act — corroboration and hearsay; credibility of suspect witnesses.
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10 February 2022 |
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Article 263's requirement to declare assets on assuming or leaving office does not conflict with Article 261's code of conduct.
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2 February 2022 |
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Appeal dismissed: petitioner failed to prove violence or that election form anomalies affected the result.
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Electoral law — Election petitions — Burden and standard of proof — Alleged violence and intimidation — Requirement to prove candidate’s knowledge or consent — Anomalies on form GEN 20 — Section 97(4) EPA: substantial compliance and non-effect on results — Tribunal’s discretion to exclude unpleaded evidence.
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2 February 2022 |
| January 2022 |
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Whether unpaid non-statutory terminal benefits entitle a retiree to payroll retention under Article 189(2).
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Constitutional law — pension benefit — meaning under Article 266; Article 189(2) retention on payroll applies only to unpaid statutory pension benefits; terminal benefits distinguished from pension benefits; petition dismissed for lack of constitutional question.
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27 January 2022 |
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Voluntary resignation does not attract Article 189(2) payroll retention; unpaid gratuity is an employment dispute.
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Constitutional law — Article 189(2) retention on payroll — "pension benefit" includes gratuity (Article 266) — voluntary resignation does not trigger Article 189(2); unpaid gratuity and salary arrears are employment disputes for the Industrial Relations Division; procedural sufficiency of an Answer as notice to defend under Order 14A.
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26 January 2022 |
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Petition alleging selective non-payment by the Attorney General dismissed; Compensation Fund regime governs state judgment debt payments.
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Compensation Fund (Article 209) — applicability to pre-2016 judgment debts — Compensation Fund Act No. 43 of 2016; Attorney General's role in payment of judgment debts; constitutional jurisdiction and pleading requirements; res judicata.
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25 January 2022 |
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Court refused to interpret Article 52(6) because the applicant’s challenge was speculative, academic and lacked a factual cause of action.
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Constitutional law — Article 52(6) — Interpretation of Electoral Commission’s power to cancel elections — Justiciability and ripeness — Cause of action required before constitutional interpretation — Court will not give advisory opinions on hypothetical scenarios.
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19 January 2022 |