|
Citation
|
Judgment date
|
| October 1907 |
|
|
Reported
Whether plaintiff’s contract with the floated company waived his claim against defendants for failing to procure share subscriptions.
Pleading — exception to declaration — whether declaration discloses cause of action; undertaking to procure share subscriptions; waiver by plaintiff contracting with floated company; necessity for particulars of special damages; underwriting/placing obligations.
|
22 October 1907 |
|
Reported
Municipal prosecution under a regulation treated as quasi‑civil; municipality ordered to pay costs despite notice only to Attorney‑General.
Municipal regulation prosecutions – notice of appeal to Attorney‑General v. municipality – awarding costs against municipality in appeals – municipal regulations as quasi‑private/civil proceedings affecting property rights – vexatious private prosecution.
|
18 October 1907 |
|
Reported
Court accepted surrender of a deceased insolvent estate despite incomplete powers of attorney due to urgency and prejudice to the estate.
Insolvency — Surrender of insolvent deceased estate — Powers of attorney — Formal insufficiency of powers addressed by affidavit and partial ratification — Urgency and prevention of prejudice justify acceptance of surrender despite outstanding formal authority.
|
18 October 1907 |
|
Reported
Owner who failed to mark an outspan could not impound traveller's cattle; drinking water is not damage to a dam.
Outspan law; impounding of traveller's cattle; interpretation of "dam" as structure not water; omission to mark out outspan; injuria sine damno; interaction with Ordinance 17 of 1905 (sec. 33).
|
15 October 1907 |
|
Reported
Municipal bye-law banning certain hoardings held ultra vires; conviction quashed and costs ordered against municipality.
Municipal law – Bye-laws – Validity – Municipal Building Bye-law prohibiting certain hoardings held ultra vires; Criminal conviction under ultra vires bye-law invalid; Costs awarded where prosecution instituted by municipality
|
1 October 1907 |
| September 1907 |
|
|
Reported
A magistrate may not split a single‑transaction theft into multiple offences; the applicant’s rehabilitation was granted.
Criminal procedure – Theft as single transaction – Magistrate may not split one transaction into separate theft charges or impose cumulative sentences; Remittal to Attorney‑General does not empower magistrate to re‑split charges. Insolvency – Voluntary sequestration – Rehabilitation granted where no claims proved and no trustee appointed (see In re Bowern)
|
30 September 1907 |
|
Reported
Section 66 prescribes punishment and confers jurisdiction; remission competent, but defective charges and impermissible splitting of a single theft transaction led to quashed convictions.
* Criminal procedure – Remittal by Attorney-General under s.66, Ordinance 7 of 1902 – Whether s.66 creates separate statutory offence or only prescribes punishment and confers jurisdiction. Continuous/continuous-theft issue – theft committed in another colony then brought in – competence of resident magistrate to try on remittal. Criminal procedure – splitting of charges – single transaction (horse, cart, harness) cannot be split into separate theft convictions
|
17 September 1907 |
|
Reported
"Agent" in liquor licensing law means one acting for the licensed holder in relation to the licensed premises.
Criminal procedure – Liquor licensing – Interpretation of "agent" in statutory prohibition – "Agent" means one acting for the licensed holder in relation to the licensed premises, not a special agent for unrelated tasks
|
16 September 1907 |
|
Reported
A challenge to cancel or vary registered title-deeds must be brought by action, not decided on motion.
Land law – Registration – Challenge to registered title – Attempt to attack register of titles not competent on motion; remedy by action – Registered deed not to be attacked after ten years – Procedural requirements for cancellation of title-deeds.
|
3 September 1907 |
| August 1907 |
|
|
Reported
Section 17's reference to 'prisoner' applies only to convicted prisoners undergoing sentence, not unconvicted detainees.
* Criminal law – Statutory interpretation – Meaning of 'prisoner' in Ordinance 3 of 1903, s.17 – Whether it includes unconvicted detainees – Contextual reading required; s.17 applies to convicted prisoners undergoing sentence. Criminal procedure – Escape from gaol precincts – Distinction between convicted and unconvicted prisoners (s.16 vs s.17)
|
28 August 1907 |
|
Reported
Five‑year‑old unpunished misconduct abroad did not bar admission, but applicant must pay opponents' costs as condition precedent.
Admission to practice – previous alleged unprofessional conduct abroad – lapse of time and absence of punishment – effect on fitness for admission. Discipline – withdrawn criminal charge and unsuccessful disciplinary complaint in another jurisdiction – weight in admission proceedings. Costs – payment of opposing Law Society's costs ordered as condition precedent to admission.
|
1 August 1907 |
| July 1907 |
|
|
Reported
Court allowed removal of company's local registration where no statutory method existed to reduce its capital.
Companies law – Removal of company's name from register where local law lacks procedure to reduce capital; procedural use of rule nisi; reliance on comparative colonial statutes and precedent.
|
30 July 1907 |
|
Reported
Admission as attorney granted subject to strict separation of attorney/notary work and fees from the law‑agent partnership.
Attorneys — Admission — Applicant an admitted law‑agent in partnership with a law‑agent — Admission granted subject to separation of attorney/notary work and fees from partnership. Professional regulation — Whether partnership dissolution required as condition of admission — Court imposed fee‑separation condition rather than dissolution. Practice management — Attorney/notary fees must not be shared with non‑attorney partner.
|
29 July 1907 |
|
Reported
An attached slip to the insurance policy was incorporated as a warranty; breach of it voided the policy, defeating the applicant's claim.
Insurance law — Policy interpretation — Attached slip forming part of written contract — 'Safe and books' clause held to be a warranty — Breach voids policy — Acceptance by delivery with attached terms — Failure to read does not avoid incorporation.
|
29 July 1907 |
|
Reported
A surety who renews a debt knowing prior securities were applied elsewhere cannot claim their benefit.
Promissory notes – Renewal – Suretyship – Prior securities realised or applied elsewhere – Notice to surety – Waiver of benefit of securities – Secured bill – Distinct agency defence requiring separate action.
|
25 July 1907 |
|
Reported
Where an introducer later acts for promoters, he ceases to be the principal’s agent and loses entitlement to commission.
Agency – change of agency – where introducer subsequently acts for promoters, he ceases to be principal’s agent and loses commission entitlement; correspondence and conduct ("my principals") may show change of allegiance. Burden of proof – claimant must explain change of position to support commission claim. Contract – alleged verbal commission not revived where later negotiations show opposing agency.
|
15 July 1907 |
|
Reported
The plaintiff's marriage was nullified because the prior marriage subsisted and the wartime 'divorce' was invalid.
Marriage — Nullity — Bigamy — Validity of wartime divorce purportedly granted by Landdrost — Lack of proof of jurisdiction under martial law — Marriage of minor (age 14) and cross-border solemnisation issues (s.13 & s.15, Law 26 of 1899).
|
11 July 1907 |
|
Reported
Opening a closed but unlocked door or raising an unlatched window sash can constitute house‑breaking under South African law.
Criminal law – house‑breaking (huisbraak) – definition; whether actual violence required; Roman‑Dutch authorities; adoption of English definition (Stephen's Digest art.315); entry by opening closed but unlocked door or raising unlatched sash constitutes house‑breaking
|
9 July 1907 |
|
Reported
Belated apology and £150 tender insufficient; plaintiff awarded £300 and costs for libel.
Libel – Publication admitted; oversight and absence of malice do not negate liability. Tender of apology and payment – belated apology and £150 tender insufficient as full reparation. Quantum of damages – court discretion to award more than tender; heavy damages seldom awarded but justified by circumstances. Costs – plaintiff entitled to costs despite defendant's apology and tender.
|
9 July 1907 |
| June 1907 |
|
|
Reported
An express reservation of ownership prevents affixed goods becoming respondent's property; vendor may recover price or remove them.
Contract/reservation of ownership in hire‑purchase; fixtures vs chattels; accession and intention; tignum junctum; insolvency/liquidator bound by pre‑insolvency contract; vendor’s right to remove or recover price; costs as administration charge.
|
27 June 1907 |
|
Reported
An order in winding-up fixing payment and directing judgment on default is equivalent to a judgment and supports execution.
Company law – winding-up – order against contributories – whether an order fixing payment and providing for judgment on default is equivalent to a judgment and executable; statutory treatment of winding-up orders as final judgments; Rules of Court and execution
|
18 June 1907 |
|
Reported
Leave to sue for divorce by edictal citation refused due to insufficient proof of the respondent's domicile.
Family law – Divorce jurisdiction – Domicile – Whether temporary residence and professional appointment (law-agent; deputy-sheriff) for ~18 months suffice to establish domicile – Intention to remain permanently required – Insufficient evidence absent prior or current domiciliary connections.
|
18 June 1907 |
|
Reported
An applicant resident abroad with no intention to practise locally cannot be admitted as an attorney under Ordinance 4 of 1902.
Attorney admission – Ordinance 4 of 1902 s.13 – residence and intention to practise – Court’s supervisory control – risk of unqualified person conducting practice; contrast with part-year practising solicitor admitted.
|
14 June 1907 |
|
Reported
Signatories to the memorandum are contributories for subscribed shares and directors cannot set off unpaid fees against calls.
Company law – Winding up – Signatories to memorandum – Subscription binds subscriber to take shares from the company; no allotment required. Company law – Contributories – Signatories to memorandum liable for full subscribed amount. Company law – Vendor-gifted shares – Liquidators’ discretion to sue; opposing creditor may be required to guarantee costs. Company law / Insolvency – Directors’ fees – Ordinary directors’ remuneration is a gratuity; directors cannot set off or prefer unpaid fees against contributory calls in competition with creditors.
|
1 June 1907 |
| May 1907 |
|
|
Reported
Part payment waives presentment on a promissory note; attachment to enforce a foreign judgment refused for lack of jurisdiction.
Promissory notes – part payment constitutes waiver of presentment under s.44(2)(e) of Ordinance 28 of 1902 – provisional sentence. Civil procedure – enforcement of foreign judgment – attachment of local property – jurisdiction not assumed where neither party domiciled and cause and subject-matter lie outside jurisdiction; consider sequestration or process in aid.
|
1 May 1907 |
| April 1907 |
|
|
Reported
Part payment of a promissory note waives presentment for provisional sentence; foreign-judgment attachment refused for want of jurisdiction.
Promissory notes – waiver of presentment – part payment as waiver under s.44(2)(e) Ordinance 28/1902; provisional sentence appropriate where waiver established. Civil procedure – foreign judgment – enforcement by attachment – court lacks jurisdiction where parties are not domiciled in the forum, cause of action arose elsewhere and subject-matter lies outside jurisdiction.
|
13 April 1907 |
|
Reported
A "q.q." indorsement denotes representative capacity and is not a restrictive endorsement against an innocent holder.
Promissory notes – Indorsement "q.q." (qua qualitate/per procurationem) – Representative signature does not constitute restrictive indorsement absent clear language or reference to trust deed – Negotiability preserved – Holder for value without notice of trust protected – Trustees' authority to deal with trust assets.
|
11 April 1907 |
|
Reported
A seller cannot recover when a buyer refuses a non‑conforming consignment and partial delivery is impossible.
Sale of goods – sale by sample – where part of consignment does not conform to sample and carrier refuses part‑delivery, purchaser may refuse entire lot; plaintiff must tender performance before suing on contract.
|
6 April 1907 |
| March 1907 |
|
|
Reported
A recital in a transfer deed that property is 'subject to' a usufruct is not itself title to that usufruct.
Usufruct – Transfer deeds – A recital that property is transferred 'subject to' a usufruct is not itself proof or title to the usufruct; Registrar of Deeds' practice of treating the last deed mentioning a usufruct as title rejected; endorsement of sale on transfer deed unnecessary.
|
26 March 1907 |
|
Reported
A contractor prevented from completing works by the employer's failure to supply materials may recover a quantum meruit for services rendered.
Contract — locatio operarum — quantum meruit — employer's failure to supply agreed materials — prevention of performance — indivisible contract doctrine not applicable where prevention caused by other party.
|
22 March 1907 |
|
Reported
A post-nuptial contract cannot retrospectively exclude community of property absent clear antenuptial intention.
Matrimonial property — Post-nuptial contracts — Requirement of clear prior intention to exclude community of property — Court will not supply retrospective intention; ignorance of law not ground for restitutio in integrum where adult.
|
16 March 1907 |
|
Reported
A lessee may not sow crops unlikely to mature within the lease term; lessor entitled to interdict against post-lease entry.
Landlord and tenant — Lease — Standing crops and "away-going" crops — Common law rule that lessee may not sow crops not reasonably expected to mature within lease term — Lease reservation to harvest standing crops does not authorize sowing new late crops — Interdict to restrain post-lease entry and trespass.
|
15 March 1907 |
| February 1907 |
|
|
Reported
An unsigned or unwritten option/agreement to sell land is unenforceable under section 49 of Ordinance 12 of 1906.
Land law – Sale of land – Section 49, Ordinance 12 of 1906 – Requirement that agreements for sale of land be in writing and signed by both parties – Option or agreement to make a future contract unenforceable if not in writing – Statute displaces prior common-law enforcement of verbal contracts.
|
15 February 1907 |
|
Reported
An order under s.48 failing to specify its duration is irregular and cannot support a conviction.
Criminal procedure; Liquor control — Ordinance 8 of 1903 s.48 — mandatory requirement to specify duration of prohibition — order omitting time period irregular — conviction quashed
|
1 February 1907 |
| January 1907 |
|
|
Reported
Provisional sentence granted but execution restrained to protect assets claimable by a Cape Colony trustee; notice to be given to trustee and Master.
Provisional sentence; promissory note; cross-jurisdictional insolvency claims; trustee in sequestration claiming in private capacity; restraint on execution to protect assets claimable under foreign (Cape Colony) insolvency law; requirement to notify trustee and Master of foreign court.
|
15 January 1907 |
|
Reported
Provisional sentence granted on a note proved in Cape Colony sequestration, subject to protection of assets claimable by the Cape trustee and notice to Cape authorities.
• Provisional sentence – promissory note proved in sequestration in another colony – enforceability where maker later resides locally; • Cross-jurisdictional enforcement – protection of assets claimable by trustee in foreign sequestration; • Requirement to notify trustee and Master of foreign court before local execution.
|
15 January 1907 |
| November 1906 |
|
|
Reported
Where earlier prospecting established a diamondiferous pipe, later finds on adjoining land were only an extension, not a new discovery.
Mining law — discovery of diamond mine — definition of ‘mine’ (sec.5) and discoverer’s rights (sec.15) — prior discovery on adjoining ground; discovery of an extension does not confer independent discoverer’s rights; credibility of contemporaneous geological reports and finds; administrative compliance (licenses/certificates) relevant to statutory rights.
|
26 November 1906 |
| October 1906 |
|
|
Reported
The applicant’s interim protection note governed the contract; change of tenancy didn’t void cover; arbitration excludes validity disputes.
Insurance law – interim protection note versus issued policy – which document forms the contract; change of tenancy – not per se increase of risk; notice of fire and claim – waiver, estoppel and actual notice; insurer’s repudiation relieves insured from performance of conditions; arbitration clause – does not cover disputes as to contract validity, only amount of loss.
|
24 October 1906 |
| September 1906 |
|
|
Reported
A mine is treated as a whole and only a duly licensed, open discovery can confer discoverer rights under Ordinance 4 of 1904.
Mines and minerals – Precious stones – Ordinance 4 of 1904 – 'Mine' construed as whole – Discoverer defined as duly licensed prospector – Only one discoverer; priority depends on compliance with Ordinance – Unlicensed or secret prospecting does not found discovery rights – sec.36 rights apply to Government as to private owners.
|
21 September 1906 |
| July 1906 |
|
|
Reported
Antenuptial registration in the Cape Colony protects the applicant’s property after removal; re-registration in the new colony unnecessary.
Family law – Antenuptial contracts – Registration – Effect of registration in one colony on matrimonial domicile in another – Law 7 of 1892 permits optional registration of contracts passed elsewhere; Cape registration protects wife's property against husband's creditors in new domicile.
|
17 July 1906 |
| June 1906 |
|
|
Reported
Life imprisonment served in the forum may create domicile, enabling the applicant to obtain a divorce.
Family law – Jurisdiction – Domicile – Whether life imprisonment in the forum creates a domicile sufficient to confer jurisdiction to grant a divorce; necessity of intention for domicile; judicial separation jurisdiction.
|
29 June 1906 |
| March 1906 |
|
|
Reported
Respondent abandoning leased hotel, using its name elsewhere and allowing disrepair breached trust; applicant obtained cancellation and damages.
Landlord and tenant – lease of hotel – whether lease purpose impliedly restricted use – goodwill attached to premises – lessee’s right limited to movable stock – abandonment and deliberate disrepair as breach of trust – cancellation of lease, interdict and damages.
|
26 March 1906 |
|
Reported
Each partner in an attorneys' firm must individually hold a practising licence under Ordinance 10 of 1903.
Licensing of attorneys — Ordinance 10 of 1903, s.33 — 'Any person practising as an attorney' construed to require individual partners in an attorney firm to hold separate practising licences — firm not recognised as a single attorney.
|
2 March 1906 |
| December 1905 |
|
|
Reported
If military or its agent deals with enemy property as if appropriated, law presumes lawful appropriation unless disproved.
War — Enemy property — Appropriation: presumption arises where commanding officer or agent deals with property as if appropriated; deemed lawful unless contrary proved. Capture vs. requisition — military dealings presumed legally recognised; burden on claimant to rebut. Agency — civilian acting under military instructions may be treated as acting for the commanding officer.
|
11 December 1905 |
|
Reported
Destruction of promissory notes can effect a valid unregistered donation; registration protects creditors, not donor-donee transfers.
Donatio inter vivos — registration of donations exceeding £500 — delivery/transfer as equivalent to registration — destruction of promissory notes as donation/remission and effective delivery/acceptance — protection of creditors; Insolvency Ordinance s.83 relevant.
|
4 December 1905 |
| November 1905 |
|
|
Reported
Breaking into a tent used as a dwelling may amount to house‑breaking if the tent is permanently occupied.
Criminal law – House‑breaking – Whether breaking into a tent occupied as a dwelling constitutes house‑breaking – Test is permanency of occupation/use rather than physical permanence of structure; Roman‑Dutch authority (Matthaeus) supports broad protection of places used as dwellings
|
24 November 1905 |
|
Reported
|
16 November 1905 |
| August 1905 |
|
|
Reported
An unregistered inter vivos donation over £500 is binding between parties once accepted; donor cannot avoid it for non‑registration.
Donation inter vivos – renunciation of intestate share – whether document obtained by fraud – acceptance and possession by donee. Donation exceeding 500 aurei/£500 – registration requirement – effect of non‑registration as between donor and donee (protects creditors/third parties). Evidence – credibility of conflicting accounts – presumption that signatories know document contents.
|
18 August 1905 |
|
Reported
Statutory municipal expropriation upheld where a bona fide engineer deems additional land necessary for public works.
Municipal expropriation – Ordinance powers to take land "necessary or incidental" to public works – deference to bona fide opinion of municipal engineer as to necessity – private offer to perform works does not bar statutory expropriation – requirement to prove mala fides or manifest absurdity to rebut engineer's opinion.
|
10 August 1905 |
|
Reported
A conviction presumes unfitness for advocacy but may be rebutted by the offence’s circumstances, motives, and trial facts.
Advocates — admission after conviction — presumption of unfitness rebuttable by circumstances and motives — assessment based on facts proved at trial — political-offence label not determinative — foreign or other court/Inn decisions persuasive but not binding.
|
8 August 1905 |