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Citation
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Judgment date
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| December 1951 |
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A trial judge's instruction limiting acquittal to a "considerable" doubt misdirected the jury and vitiated the conviction.
Criminal law — Jury directions — Definition of "reasonable doubt" — Misleading reference to "considerable" doubt (aansienlike) — Fundamental misdirection — Failure of justice — Appeal — s.374(1) Act 31 of 1917 (as amended).
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13 December 1951 |
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Appellants failed to prove an oral pledge and delivery of cattle; appeal dismissed with costs.
Pledge and security – requirement of delivery and change of control – proof and burden of proof; Evidence – assessment of credibility and significance of continued possession; Property – effect of possession on pledges and third-party rights; Conversion/claim for delivery – necessity of notice to third party.
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12 December 1951 |
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12 December 1951 |
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Whether a newspaper article republishing a pamphlet was capable of conveying defamatory meanings about a trade-union official.
Defamation — meaning of words — test on exception whether publication is reasonably capable of conveying the alleged defamatory meanings to an average reader aware of the plaintiff's position; republication/adoption; exception for non-disclosure of cause of action; costs — disallowance for formal or duplicate record documents.
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11 December 1951 |
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Under s.23(1) the person alleged to be a prohibited immigrant must prove non-entry or lawful entry; appeal dismissed.
Immigration law — Burden of proof — s.23(1) Immigration Act 22 of 1913 — person alleged to be a prohibited immigrant must prove non-entry or lawful entry; credibility and documentary discrepancies; Immigration Board’s factual findings binding when reasonable.
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10 December 1951 |
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Payment made to release an attached car under a common mistake as to its identity is recoverable by the payer.
Civil procedure/Restitution — condictio indebiti and recovery for payment made under a common mistake as to identity of goods; characterization of payment as sale or release of attached goods; liability where party in possession knew or should have known true identity.
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5 December 1951 |
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Storage of neatly stacked business materials in back yard did not breach covenant to keep yard "clean and neat"; ejectment dismissed.
Lease – covenant to keep back yard "clean and neat" – interpretation as requirement against dirt, mess or litter, not obligation to keep yard empty – storage of packing cases and shelving arranged in compact groups held not to constitute breach justifying forfeiture – burden on lessor to prove condition amounting to termination.
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5 December 1951 |
| November 1951 |
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A municipal by-law is invalid where it prohibits public gatherings under an unfettered mayoral discretion beyond the enabling enactment’s municipal purpose.
Municipal law — Public assemblies — By-law making organising or attending gatherings an offence without mayoral permission — Validity of by-law when mayor’s discretion is unfettered — Limits on provincial councils’ enabling ordinances under South Africa Act — Delegation must be confined to municipal purposes.
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29 November 1951 |
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Sale of newspapers on the Lord's Day, even for propaganda and without profit, constitutes sale of "goods" under the Ordinance; appeal dismissed.
Statute construction – Lord's Day Ordinance s.2 – scope of the word "goods" – whether newspapers and non‑commercial sales fall within prohibition – qualifying phrase "for the purpose of trade or dealing" construed as applying to keeping shops open only.
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29 November 1951 |
| October 1951 |
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Whether a codicil can revive or incorporate a previously revoked will under Ord. 14 of 1903; revival must be proved on probabilities.
Wills — Revocation and revival — Codicil purportedly amending earlier revoked will — Revival may be express or implied but must be proved on balance of probabilities — Incorporation by reference ineffective to import testamentary efficacy where earlier document was not executed in statutory form — Transvaal Wills Ordinance (Ord. 14 of 1903) limits testamentary efficacy to words on duly signed and attested sheets.
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8 October 1951 |
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Both driver and pedestrian were negligent; plaintiff’s contributory negligence barred recovery, so appeal dismissed with costs.
Road traffic — Night driving — Duty to regulate speed within range of vision and keep lookout — Dazzling headlights — Contributory negligence of pedestrian/occupant who stands on traffic side with bright lights on — Causation and last-opportunity considerations.
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8 October 1951 |
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Accused must prove on balance of probabilities an irresistible emotional disorder; psychopathic personality alone does not displace presumption of sanity.
Criminal law – Mental disorder plea – psychopathic personality not ipso facto legal insanity – accused bears onus to prove irresistible impulse on balance of probabilities; expert opinion depends on factual proof. Criminal law – Provocation – assessed by ordinary-person standard; insufficient provocation will not reduce murder to culpable homicide.
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5 October 1951 |
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Ordinary consequences of street trees (fallen leaves) are not a nuisance; overhanging branches require prior request and refusal for interdict.
Property law – nuisance – ordinary and natural use of land (street trees) not actionable for ordinary consequences (fallen leaves); relief for overhanging branches requires prior request and refusal; maintenance of gutters relevant to damage claim.
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5 October 1951 |
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Conviction and death sentence upheld where credible eyewitness and medical evidence proved a brutal murder; psychiatric observation found accused sane.
Criminal law – Murder – Eyewitness credibility and corroboration – Medical/post-mortem evidence of violent assault – Psychiatric observation and sanity – Absence of extenuating circumstances – Capital sentence – Leave to appeal granted.
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2 October 1951 |
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A licensing policy refusing taxi exemptions on racial grounds was unlawful, unreasonable, and set aside; renewal ordered.
Administrative law; Motor Carrier Transportation Act – licensing/exemptions – whether race‑based refusal lawful – policy of matching operator race to passenger class unreasonable and unsupported by statute – judicial review and setting aside of discriminatory administrative decisions.
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2 October 1951 |
| September 1951 |
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Convictions for rape upheld: sufficient corroboration existed and judge properly exercised discretion not to call the absent witness.
Criminal law — Rape — Corroboration of complainant’s evidence by independent witnesses, admissions and physical signs; Criminal procedure — s.247 witness‑calling discretion belongs to judge, not jury; failure to call absent witness not necessarily fatal to conviction.
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28 September 1951 |
| June 1951 |
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The court construed a will to make the daughter sole heir, with her children as contingent substitutes if she fails to take.
Wills – construction – appointment of person "and her children born and still to be born" – whether children take simultaneously or only if parent fails to take – held to be successive (vulgar) substitution; posthumous children included; instruction for prompt liquidation supports successive construction.
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23 June 1951 |
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Appellant’s rape conviction and death sentence affirmed on credible identification and rejection of compulsion defence.
Criminal law — Rape and robbery — Identification evidence and corroboration — Defence of compulsion rejected — Credibility of complainants upheld — Appellate review of sentence — death sentence confirmed. |
22 June 1951 |
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Child’s welfare prevails over father’s natural guardianship; custody award to father reversed and maintenance ordered.
Family law – Custody on divorce – Paramountcy of child’s welfare over parent's ‘innocence’ and natural guardianship – Removal/relocation of child – Maintenance and arrears – Evidence on papers versus oral testimony.
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19 June 1951 |
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Where shares are acquired and largely resold to realise premiums as part of a profit-making scheme, the gains are taxable as income.
Tax — Income v capital — share acquisitions and flotations — where shares are acquired and largely resold at a premium as part of a profit-making scheme, profits are income even if some shares are retained for control; intention and factual characterisation decisive.
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19 June 1951 |
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Whether the municipal council could require the respondent to form and harden streets shown in a private township plan.
Local Government Ordinance – vesting of streets – definition of "public place" – private townships in Durban excluded from definition – showing streets on plan does not necessarily create public right of use – interaction of Sec. 50 bis (Ord.10/1934) and Ord.21/1942 – requisition powers under Sec.160(1).
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19 June 1951 |
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Whether a third driver’s emergency reaction breaks causation and the limited value of dynamic reconstructions in overturning trial credibility findings.
Delict — Motor collision — Causation — Emergency reaction by another driver does not necessarily break causal chain; foreseeability governs — Dynamic or experimental reconstructions limited in value and cannot displace credible oral evidence or trial‑court credibility findings.
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15 June 1951 |
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Section 122(5)(b) imposes procedural duties but does not create a three‑year limitation on recoverable rates under the summary sale machinery.
Local government — rates recovery — Natal Local Government Ordinance s.122(5) — statutory notice within three years — whether paragraph (b) creates substantive three-year limitation on rates recoverable under summary sale procedure — construing procedural duties versus substantive prescription.
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7 June 1951 |
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Accomplice testimony corroborated by independent evidence upheld murder convictions; no extenuating circumstances found.
Criminal law – Murder – Accomplice evidence – Necessity for corroboration – Corroboration by circumstantial and physical evidence – Joint and concerted action – Excluding extenuating circumstances under s.338(1) Criminal Procedure Act – Appeal against conviction.
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7 June 1951 |
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Minister's refusal to appoint conciliation board set aside where he misunderstood legal effect of proposed alteration to employment conditions.
Industrial Conciliation Act s64 — application for conciliation board where employer alters conditions of employment — whether alteration is for Minister alone or reviewable by courts; ministerial discretion; review for error of law or mistaken understanding of facts; local government ordinance affecting legal effect of employer rule.
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7 June 1951 |
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A pyramid-style contribution scheme is a "lottery" because prizes depend chiefly on chance and others' unpredictable conduct.
Criminal law – Lotteries Prohibition Act – definition of "lottery" – pyramid/'chain' contribution scheme – prize distribution determined by the unforeseeable conduct of others – chance vs skill.
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7 June 1951 |
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Appellant's appeal dismissed: 'Shilling Society' scheme indistinguishable from prohibited scheme; precedent governs.
Criminal law — statutory interpretation — schemes offering monetary distribution ('Shilling Society' vs '10/- Snappy Link') — applicability of precedent (Rex v Gibson Gondo) — contravention of s.4 Act 9 of 1889 (Cape) — appeal dismissed.
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7 June 1951 |
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Appeal dismissed: conviction and sentence for exposing oneself upheld; alleged irregularity and request for further evidence improperly raised before this Court.
Criminal law – Crimen injuria – Evidence sufficiency for conviction; appellate review – procedural remedy by review in Provincial Division for alleged irregularity; application for further evidence – proper forum; sentencing – magistrate entitled to consider prevalence and deterrence; appellate restraint in interfering with sentence.
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5 June 1951 |
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Seller’s signed written acceptance binding on seller; alleged oral “no money, no commission” variation inconsistent and not proved, appeal dismissed.
Contract law – agency – written acceptance signed by seller acknowledging agent executed mandate and entitled to commission – seller bound by written terms; parol-evidence rule precludes relying on alleged contemporaneous oral agreement (“no money, no commission”) inconsistent with the written acceptance; agent’s right to commission despite purchaser’s default.
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4 June 1951 |
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Applicant's claim dismissed: both drivers negligent; motorcycle crossed centre line and last-opportunity rule did not apply.
Road traffic collision — contributory negligence — proof of vehicle position from scene marks and damage — expert speed estimation — last opportunity rule inapplicable where collision inevitable in a very short interval.
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4 June 1951 |
| May 1951 |
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A plaintiff may recover immovable property donated under an antenuptial promise after forfeiture; tender to release mortgage not prerequisite.
Family law — Antenuptial contract — Donatio propter nuptias — Donation of immovable effected via third-party transfer — Forfeiture of matrimonial benefits on divorce — Right to specific restitution (transfer) of donated property; equitable conditions and effect on mortgage bond.
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30 May 1951 |
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Respondent failed to prove inducement by innocent misrepresentation; claim for price reduction dismissed.
Contract law – innocent misrepresentation – inducement to purchase – remedy: reduction of purchase price versus rescission – burden of proof – valuation evidence and relevance of rent to market value.
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28 May 1951 |
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Court properly refused belated amendment to plead prescription; damages award for adultery upheld.
Civil procedure – amendment of pleadings – raising prescription under proviso to s.14 of Act 18 of 1943 – discretion to allow prescription at any stage – necessity for satisfactory explanation for earlier failure to plead – delay and tactical abandonment as relevant factors; Damages – adultery claim – assessment of quantum – appellate interference only where award is unreasonable or based on wrong principle.
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28 May 1951 |
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Driver negligent in striking pedestrian; plaintiff not shown to be contributorily negligent; award for medical costs and pain suffering.
Motor-vehicle collisions – pedestrian struck while crossing street – driver’s duty of care to avoid contact; contributory negligence – burden and proof; assessment of damages – medical expenses and pain and suffering; inadequacy of evidence for claimed business loss.
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25 May 1951 |
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Whether a £500 payment for nurses' passage constituted a loan or an applied earmarked payment — plaintiff's claim failed.
Civil law – alleged loan versus earmarked payment – condictio indebiti and total failure of consideration – onus of proof – evidentiary conflict as to intention for payment for nurses' passage – absolution and appeal.
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23 May 1951 |
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Deceased had acquired a Cape Colony domicile before marriage, so the marriage was in community of property.
Private international law – Domicile – Acquisition of domicile of choice – Standard of proof is ordinary civil preponderance of probabilities – Contingent intentions do not necessarily defeat domicile acquisition – Marriage in community of property where deceased domiciled in Cape Colony at marriage.
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22 May 1951 |
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Broker's delayed sale does not necessarily forfeit civil claims; 'forthwith' construed as reasonably prompt sale.
Stock Exchange Act s.13(1),(5) – broker’s duty to give notice and to sell 'forthwith' – interpretation of 'forthwith' (Afrikaans 'onverwyld') – construction of statutory obligation – whether failure to sell immediately forfeits broker’s civil remedy – heads of recovery: disbursements, brokerage, market-price shortfall – role of criminal sanction under s.25.
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11 May 1951 |
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Whether arrests under a pass-law were lawful and whether arrestor’s motive rendered the arrests unlawful.
Criminal procedure — Arrest without warrant — Effect of arrestor’s motive on legality of arrest — Arrest lawful if true object is to bring accused to court; improper motive raises malicious prosecution remedy; Statutory interpretation — s.23 Proc.150/1934 (pass-area trespass) does not extend to resident natives on farms without title; Protective interlocutory relief — form and scope of interdicts; costs between divisions.
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10 May 1951 |
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An incorporated diagram in a transfer deed can create a binding servitude benefiting the transferor's retained land.
Property — Praedial servitude — Right of way shown on diagram annexed to transfer deed — Diagram incorporated into deed constitutes part of grant; servitude can be constituted though title omits dominant tenement — Extrinsic evidence admissible to identify person/tenement of inherence — Imperfect registration or Registrar's deletion does not necessarily destroy servitude — Onus discharged on balance of probabilities.
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7 May 1951 |
| April 1951 |
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Appeal against sentence for culpable homicide dismissed; ten-year term with hard labour confirmed.
Criminal law — Culpable homicide — use of dangerous instrument — presumption as to natural consequences — provocation and fear as mitigating circumstances — sentencing discretion and appellate review — deterrence against use of knives.
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2 April 1951 |
| March 1951 |
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Insurer's statutory right of recourse under the Motor Vehicle Insurance Act does not extend to an innocent owner for a servant's negligence.
Motor Vehicle Insurance Act 29 of 1942 — interpretation of "negligence or other unlawful act of the owner" in ss. 11 and 14 — insurer's statutory right of recourse limited to the person whose negligence caused the loss — court will not expand statute to import vicarious liability where legislature omitted it.
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29 March 1951 |
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Court refused specific performance to compel municipal release of agreed water where enforcement would cause grave public hardship.
Contract — Specific performance — Equitable remedy — Court’s discretion to refuse where decree would impose undue hardship or be inequitable — Municipal obligation to release stipulated water — Public duty and emergency (drought) may justify withholding specific performance.
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29 March 1951 |
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28 March 1951 |
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The appellants were held liable for permitting injurious mine water to escape; the regulation was valid.
Mines and Works Regulations — pollution from mine water — proof of source by chemical analysis and expert evidence — meaning and validity of 'injurious', 'innocuous' and 'escape' — manager's responsibility under Reg.157(1) and liability under Reg.177(2) for neglect — regulation intra vires.
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27 March 1951 |
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A councillor is disqualified where his employer has a reasonable possibility of an indirect pecuniary interest in a licence refusal.
Local government law – disqualification of councillor under s.42(1) – indirect pecuniary interest of employer – test is reasonable possibility of conflict – evidence of competitive effect in small municipality – prior conflicting decisions disapproved.
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24 March 1951 |
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Whether a driver was negligent for failing to see small children near a school and whether the trial judge rightly rejected contrary eyewitness evidence.
Criminal law – Culpable homicide – Motor vehicle negligence – Duty of driver to be on alert for small children at edge of road near school – Credibility of witnesses and findings of fact on obstruction by parked vehicle.
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20 March 1951 |
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Capture occurs when fish are under a fisherman's control; in ordinary fishing the regulation absolutely prohibits possession of undersized fish, so mens rea and economic necessity defenses fail.
Fisheries regulation – meaning of catch/capture – regulatory prohibition on possession of undersized fish – whether mens rea required – defence of necessity/impossibility – validity and reasonableness of regulation under enabling Act.
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19 March 1951 |
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Whether allowance adjusts only when the retail price index reaches the next 1.2-point serial figure (notch).
Contract interpretation — industrial agreement — cost-of-living allowance linked to retail price index — meaning of "notch" and "traversed" in 1.2-point series — whether adjustment triggered only on reaching serial figure or by recalculation from datum 142.0.
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1 March 1951 |
