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Citation
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Judgment date
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| December 1954 |
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The accused convicted of murder after eyewitness and medical evidence proved intentional fatal stabbing; sentenced to death.
Criminal law – Murder – Eyewitness credibility – Accidental killing claim rejected as improbable – Wound severing spinal cord calculated to cause death – Intent to kill established – No extenuating circumstances – Death sentence imposed.
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15 December 1954 |
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Forfeiture clauses annexed to a lex commissoria in a sale are enforceable and severable; vendor’s election to rescind is final.
Contract of sale – lex commissoria (forfeiture clause) – enforceability despite penal operation – severability of remedies – election to rescind final once exercised – purchaser’s subsequent payment or tender does not alter vendor’s election.
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13 December 1954 |
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A director's signature to an integrated sale agreement bound him personally as surety despite nearby words purporting to show representation.
Contract—signature and capacity—words qualifying signature—whether qualifying words exclude personal liability—construction of integrated written agreement—admissibility of parol evidence to contradict clear written undertaking.
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13 December 1954 |
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Court held prospecting regulations allow substantial observance and administrative judgment, limiting courts' review to manifestly unreasonable decisions.
Administrative law – prospecting regulations – Regulation 7 – substantial observance versus strict compliance – Inspector/Administrator judgment – scope of judicial review – remittal as primary remedy.
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10 December 1954 |
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A municipality may compulsorily acquire land under the Expropriation Ordinance for a ring‑road even where linked to town‑planning schemes.
Expropriation – Municipalities Powers of Expropriation Ordinance 64 of 1903 – acquisition for construction of roads – ‘ring road’ within Section 5 purpose; Town‑planning Ordinance 11 of 1931 – overlapping powers do not imply repeal or exclusivity – purpose test controls; anticipatory acquisition and abuse of power.
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10 December 1954 |
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Whether vested fideicommissary interests (not mere expectancies) gave rise to estate and succession duty on the deceased's death.
Death duties – scope of 'fiduciary interest' – distinction between vested beneficial interest and mere expectancy or administrative/legal title – interpretation of will creating defeasible vested rights (fideicommissum) – estate duty and succession duty on cessation of fiduciary interests.
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6 December 1954 |
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Identification evidence, including early recognition and parade ID, upheld to convict accused of assault with intent to murder and robbery.
Criminal law — Identification evidence — reliability of out‑of‑court and parade identifications — prior exposure to accused — credibility assessment — corroboration by subsequent identification and flight — proof beyond reasonable doubt.
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4 December 1954 |
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Whether shares on a dominion register are situated at the principal register so dividends fall outside domestic taxation.
Tax law — source of dividend — situs of shares — English Companies Act 1948 s.120(1) deeming dominion register part of principal register — s.120(4) not displacing deeming — dividend sourced outside taxing jurisdiction.
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2 December 1954 |
| November 1954 |
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25 November 1954 |
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Parent liable for minors' notional income where planned transfers made donation the efficient cause of that income.
Income tax — s.9(3) (parent deemed to have received minor's income) — interpretation of 'by reason of' — proximate/efficient cause — deliberate scheme of transfers, dividend and reinvestment — reinvestment does not necessarily break causal chain — section 37 apportionment to minors included in parent's income where donation produced that result.
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23 November 1954 |
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Appellate court upheld conviction where close-range identification and evidence corroboration overcame inconsistencies; intoxication and youth not extenuating.
Criminal law – identification evidence – reliability where identifying witness knew accused previously and observed act at close range; corroboration by medical evidence. Criminal law – intoxication – degree insufficient to negate mens rea. Sentencing – age and intoxication not extenuating where accused found to be adult and capable.
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22 November 1954 |
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Trial by judge and two assessors became improperly constituted after an assessor's death; convictions set aside.
Criminal procedure – Judge and assessors – Death of assessor before verdict – Whether tribunal remains properly constituted – Application of s.216(7) and s.214(3) – Pleas by counsel not substituting for formal pleas or verdicts – Convictions set aside as irregular.
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18 November 1954 |
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The applicant insurer failed to prove the respondent's wife's contributory negligence; accident caused by rider's lack of proper lookout.
Motor vehicle insurance – Liability for pedestrian injury – Contributory negligence – Burden on insurer to prove pedestrian’s negligence and causal connection – Evidence and inferences from limited observation times – Twilight visibility and failure to keep proper lookout.
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16 November 1954 |
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Whether incestuous adultery was proved on the balance of probabilities and whether restitution of conjugal rights should be ordered.
Family law — Allegations of incest/adultery — Civil standard of proof (balance of probabilities) — Gravity of sexual misconduct affects credibility assessment — Credibility, medical evidence and trial misdirections — Restitution of conjugal rights ordered.
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16 November 1954 |
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Employer not vicariously liable where employee used employer’s bicycle for a purely personal errand despite foreman’s permission.
Delict and vicarious liability – course of employment – use of employer's vehicle for private errand – permission by superior servant insufficient to render journey one of the master’s business – owner’s supply of instrumentality not conclusive.
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15 November 1954 |
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The appellant was convicted under common purpose for leading an armed pursuit he knew involved knives; appeal dismissed.
Criminal law – Murder – Common purpose – Liability where accused instigates or leads a pursuit knowing some participants are armed with knives; Trial irregularity – Misstatements in reasons and failure to call alibi witnesses – whether such mistakes vitiate conviction; Credibility of Crown witnesses.
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15 November 1954 |
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A malicious prosecution claim requires proof of improper motive and absence of reasonable and probable cause; defendants had reasonable cause, appeal dismissed.
Delict — malicious prosecution — plaintiff must prove improper (indirect) motive and absence of reasonable and probable cause — reasonable and probable cause judged by information available to prosecutor (objective test with possible subjective element) — appeal and suspension of Water Court orders — noting an appeal does not automatically suspend Water Court order; prosecutions based on available evidence held reasonable.
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11 November 1954 |
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Whether a company's trade name that includes a surname is prohibited by s.76(bis) of the Medical, Dental and Pharmacy Act.
Statute interpretation — Medical, Dental and Pharmacy Act s.76(bis) — meaning of "personal name" and "the name of any natural person" — trade name v. personal name — registration of corporate trade name — proviso preserving persons lawfully carrying on business at commencement of amendment.
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11 November 1954 |
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Prescription runs from knowledge of the wrong; suspension under s.7(1)(e) requires the debtor's own fraud.
Prescription — s.5(1)(c) — commencement when creditor knows the wrong; s.7(1)(e) — suspension only where action founded on debtor's own fraud; vicarious liability for servant's fraud does not amount to fraud of the debtor.
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11 November 1954 |
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Court held consultation requirement for declaring a betterment area does not demand individual consultation; declaration and conviction upheld.
Administrative law — Betterment area declaration — Statutory requirement to "consult" natives — Meaning and scope of consultation — Ministerial discretion as to method (meetings, chiefs, notices) — Bona fide consultation — Judicial non-interference absent mala fides or manifest inadequacy; Criminal conviction for failing to produce stock upheld.
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11 November 1954 |
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Section 31(13) permits deemed returns up to a different accounting date but does not prevent taxation of income earned in the statutory year.
Tax law – fiscal year and returns – s.31(13) deeming of non‑statutory accounting returns – does not alter charging section or fiscal year; Commissioner’s power to accept accounts and to estimate income where no return made; procedural remedy by objection to quantum.
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11 November 1954 |
| October 1954 |
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Possession of recently stolen goods and disputed police conduct: accused convicted of housebreaking with intent to steal and theft.
Criminal law – Housebreaking with intent to steal and theft – possession of recently stolen goods – identification evidence (overcoat) – credibility of accused's allegation of police assault and fabrication – inference from unexplained recent possession.
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22 October 1954 |
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An inadmissible confession does not require quashing if admissible evidence would inevitably establish guilt.
Criminal law – Evidence – Inadmissible confession – irregularity; Appeal – failure of justice test – appellate court must decide whether a reasonable trial court, on admissible evidence alone, would inevitably convict (Rex v Patel); Sentencing – appellate interference – prior conviction and organised illicit activity justify upholding sentence.
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1 October 1954 |
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Whether a trailer is a "motor vehicle" under Act 29 of 1942; court held it is not and dismissed the appeal.
Statutory interpretation — "motor vehicle" — meaning of "propulsion" — requirement of self-propulsion; trailers excluded from Act 29 of 1942 insurance obligations; purposive construction relating to negligent driving; weight of regulations, tariffs and conflicting provincial ordinances; prior case-law distinguished.
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1 October 1954 |
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Appellate court upheld murder conviction and death sentence based on circumstantial evidence and credible witness testimony.
Criminal law — Murder — Circumstantial evidence — Credibility of Crown witness — Appellate review of factual findings — Refusal to allow fresh ground of appeal where no reasonable prospect of success — No extenuating circumstances — Death sentence upheld.
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1 October 1954 |
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On appeal the court found publication and defamation proved, awarding £75 and costs after re‑assessing credibility and probabilities.
Defamation — publication and meaning of allegedly defamatory words; abandonment of pleas of justification/privilege; assessment of credibility and probabilities on appeal; corroboration by witnesses; award of damages and costs.
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1 October 1954 |
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The accused's kicks caused a bowel perforation and death; convicted of culpable homicide and sentenced to one year imprisonment.
Criminal law – culpable homicide – causation: bowel perforation and rib fractures caused by kicks/stamps – medical evidence on recent injuries – assessment of eyewitness credibility – alternative theory of fall on rocks rejected.
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1 October 1954 |
| September 1954 |
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Substituting a watertight pipeline for an open furrow is construction, not maintenance; defendant not liable for half the pipeline cost.
Contract interpretation — maintenance versus construction — Clause requiring prevention of ‘‘undue percolation or leakage’’ construed as authorising grouting as construction/capital outlay; substitution of watertight pipeline for open furrow is not ‘‘maintenance’’ under agreement; antecedent tender entitles defendant to judgment for tendered sum when liability fails.
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29 September 1954 |
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Applicant failed to look, but respondent's excessive speed disabling avoidance rendered respondent liable.
Delict — Road accidents — Contributory negligence and last opportunity rule — Driver who by excessive speed disables himself from avoiding danger treated as having had last opportunity; track marks and physical evidence relevant.
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28 September 1954 |
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Whether prosecutorial appeals need leave to the Appellate Division and whether selling from a parked vehicle is a "fixed place" under a by‑law.
Appeals — jurisdiction — s.105 South Africa Act — Magistrates' Courts Act ss.105, 114(3) — whether prosecutorial appeals require leave to Appellate Division; Municipal by‑law — interpretation of "fixed place" — street vending from parked vehicle is not itinerant hawking.
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27 September 1954 |
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Ambiguous leave-to-appeal petition led court to consider only sentence; death sentence for a very serious, violent rape was upheld.
Criminal law – Rape – Severity of assault, threats and injuries – Mitigation factors (age, intoxication, sudden impulse) – Use of prior convictions in sentencing – Ambiguous petition for leave to appeal limited by trial judge’s endorsement.
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25 September 1954 |
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A municipal council may advertise for objections to a subdivision application; its "comments" under s.11 are not limited to technical matters.
Townships Ordinance (s.11) — subdivision applications — scope of local authority's "comments" — not limited to technical particulars in s.5 — municipal power to take reasonable steps (including advertising) to elicit objections — interim interdict inappropriate where council acts in furtherance of statutory function.
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24 September 1954 |
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Statutory saving provisions and historical court rules preserve attorneys' right to dual practice as advocates; appeal dismissed with costs.
Practice — Dual practice — Attorneys practising as advocates — Rule 27 (1903), Rule 47 (Order XXXII) and successors — Saving clause s.34(2)(b) of Act 23 of 1934 preserves rights conferred by rules of court — Effect of Act 27 of 1939 — Repeal of statutory words does not necessarily defeat existing rights — Ultra vires contention rejected.
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23 September 1954 |
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Appeal allowed: insured driver negligent; defendant failed to prove plaintiff's contributory negligence; damages awarded.
Delict — Motor collision — negligence and contributory negligence — burden of proof on defendant to establish plaintiff's causal negligence — assessment of damages where evidence on quantum is incomplete; visibility and speed in misty conditions; credibility and inference.
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22 September 1954 |
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Criminal or statutory-prohibited occupation of mining land cannot found acquisitive prescription.
Prescription — acquisitive prescription; mining law — surface rights and Gold Law s136(6); illegality of possession as bar to prescriptive title; lost grant presumption; need for possession to be adverse.
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22 September 1954 |
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Descriptive trade name lacked sufficient secondary meaning; no proven likelihood of confusion, appeal dismissed with costs.
Trade names – likelihood of confusion – descriptive versus invented/fanciful names – secondary meaning and reputation required for protection – scope of interlocutory relief to prevent misrepresentation and damage to goodwill.
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20 September 1954 |
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Passenger given a lift as a favour, not in driver’s business, so insurer not liable under section 11.
Motor vehicles insurance — Section 11(iii) Motor Vehicles Insurance Act 29 of 1942 — meaning of "in the course of the business" — passenger conveyed as a favour to promoter not conveyed in course of driver's business — insurer not liable.
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17 September 1954 |
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Resistance to a lawful arrest causing death amounted to culpable homicide where the accused’s dazed state negated intent to murder.
Criminal law – Resisting lawful arrest – Section 28 and Section 41 Criminal Procedure and Evidence Act – Private person assisting in arrest – Liability for death during resistance – Intent for murder versus culpable homicide where accused is dazed by self‑induced circumstances.
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14 September 1954 |
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Whether the court was required to declare the applicant a habitual criminal despite prior sentence remissions under section 2(1)bis of Act 20 of 1953.
Criminal law – Habitual criminal declaration – Interpretation of section 2(1)bis, Act No. 20 of 1953 – Effect of remissions on calculation of prior sentences – Single judge’s duty to follow established divisional practice pending Appellate Division determination – Leave to appeal on statutory interpretation.
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13 September 1954 |
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Bus driver negligent for failing to keep tram under constant observation and avoid collision; appeal dismissed.
Road/traffic law – Duty of care at intersections – Driver must keep lookout for vehicles (including trams) emerging from cross streets – Presence of statutory stopping duty on other vehicle does not absolve approaching driver – Failure to keep continuous observation in restricted manoeuvring space is negligence.
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10 September 1954 |
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Appellant’s challenge to a five-month prison sentence for receiving stolen goods dismissed; sentence held not excessive.
Criminal law – Receiving stolen property – Sentence – Magistrate’s reference to higher court authority – Fetters on discretion – No absolute rule requiring imprisonment for receivers; sentencing depends on circumstances – Shopkeeper’s acceptance of stolen goods justifying deterrent custody.
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8 September 1954 |
| June 1954 |
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A post‑treatment certificate that the property "is now apparently free from infestation" satisfies a clause requiring the property be "apparently free from infestation."
Contract interpretation – special condition requiring entomological certificate – meaning of "apparently free from infestation" – contemporaneity of certificate; Evidence – admissibility of extrinsic factual material limited where parties represent none available; Specific performance – purchaser must allege material alteration to resist tendered property.
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19 June 1954 |
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Whether transfer duty is payable on the full consideration where a purchaser contracts to acquire land together with a building to be erected by the seller.
Taxation — Transfer duty — Interpretation of "value of any fixed property" and "acquiring" in Ordinance 12 of 1906 — Whether sale coupled with seller's undertaking to erect building constitutes acquisition of improved land — Effect of itemisation of consideration — Distinction between sale of improved land and sale of land plus contract for services.
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19 June 1954 |
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Whether statutory provisions preserved contractual mineral leases and options from the prohibitions on non‑native acquisitions in scheduled native areas.
Natives Land Act 27/1913 s.1(2),(4) — s.8(1)(f) — meaning of "the law" — preservation of pre‑existing law relating to acquisition of mineral rights by agreement; Native Trust and Land Act 18/1936 s.43 — protection of existing rights to prospect, mine or dig (including contractual leases and options) and successors in title; Governor‑General approval — effect of unapproved subsequent amendments, cessions and exercise of option.
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19 June 1954 |
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Failure to afford accused opportunity to address before verdict is gross irregularity; appellate court may consider extra-record affidavits and set aside conviction.
Criminal procedure – right of accused to address court after close of evidence – Section 222 (Act 31 of 1917) – deprivation of opportunity as gross irregularity – appeal versus review – appellate power to receive extra-record affidavits/hear evidence (s.103(4) read with s.98(2) Magistrate's Court Act) – conviction set aside.
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16 June 1954 |
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Forfeiture clause is voidable at beneficiary's election; will entitles siblings to royalties, requiring their joinder.
Contract law – Forfeiture clause in prospecting/mining option – Clause declaring contract void on non-payment is voidable at option of beneficiary, not ipso facto; Wills – "optie gelden" interpreted to include royalties payable under contract; Usufruct and renunciation – usufructuary cannot unilaterally extinguish interests of other testamentary beneficiaries; Civil procedure – requisite joinder of persons with vested testamentary interests.
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15 June 1954 |
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A taxpayer's share of trading profits is sourced in South Africa when he performs the profit‑generating activities in the Union.
Tax — Source of income — Business profits from international purchase and sale of commodities — "Source" = originating cause; situs where taxpayer carries on profit‑producing activities — partner's share taxed where partner conducts his activities — assessment.
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10 June 1954 |
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Judge impermissibly directed jury to upgrade a competent culpable homicide verdict to murder; original verdict restored and sentence reduced.
Criminal law – jury verdicts – limits on judge in altering or directing verdicts – competent verdicts cannot be converted into a more serious conviction by judicial prompting; clarification questions under statutory power permitted but not coercive. Criminal law – common purpose and mens rea – intent must be established for each accused. Criminal law – duress – may mitigate culpability though does not automatically justify murder.
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10 June 1954 |
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Appeal dismissed: rape conviction upheld where circumstantial and witness corroboration established lack of consent.
Criminal law — Rape — Consent — Corroboration by messengers and conduct — Delay in reporting explained by age and family pressure — Alleged customary right by chief rejected as afterthought — Conviction safe.
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10 June 1954 |
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Acceptance of benefits under a joint will binds the survivor and enforces massing of the joint estate, despite payments on remarriage.
Wills – joint will – massing of joint estate – adiation/election by survivor – effect of remarriage and payment of children's portions – Master's authorization under s.51 to transfer estate at valuation – entitlement to paternal inheritances.
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7 June 1954 |
