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Citation
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Judgment date
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| December 1955 |
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Whether transfers executed by an elderly donor can be set aside for undue influence/dolus and whether English 'undue influence' is part of our law.
Property/contract — alleged undue influence and dolus — reception of English 'undue influence' into Roman‑Dutch/South African law — limits of restitutio in integrum and praetorian clausula — distinction between void and voidable transactions — requirements for relief (fraud, duress, incapacity, fiduciary relationship).
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31 December 1955 |
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Culpable homicide upheld and three-year sentence confirmed where reckless firearm demonstration lacked proven intent to kill.
Criminal law – Culpable homicide v. murder – constructive intent – inadequate steps to ensure an allegedly unloaded defective rifle was safe do not necessarily establish intent to kill. Evidence – burden on Crown to prove accused knew rifle was loaded or intended lethal consequence. Sentencing – appellate restraint; sentence confirmed where trial court reasonably exercised discretion.
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5 December 1955 |
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Whether a two‑year limit in a guarantee discharged a surety for losses incurred within that period but paid later.
Contract interpretation – guarantee – surety and co‑principal liability – meaning of "become obliged to pay" – no temporal limitation. Contract construction – temporal phrase "shall endure for a period of (2) two years" not to be read as discharging surety by effluxion of time where continuing liability clause exists. Commercial context – reciprocal undertakings between principals affect scope of surety's obligation.
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5 December 1955 |
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Whether appellant proved purchase of respondent’s cattle on balance of probabilities amid conflicting credibility findings.
Property/civil law – dispute over title to cattle – onus on party asserting purchase – credibility of witnesses, demeanour and contemporaneous documents – appellate reappraisal of probabilities and trial judge’s credibility findings.
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3 December 1955 |
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Whether a company’s bona fide change of policy can convert land trading stock into capital, making subsequent sale proceeds non‑taxable.
Taxation – Income Tax – characterisation of receipts – whether profits on sale of land by a land‑dealing company were income or capital. *Taxation – Change of intention/policy – whether a bona fide change can convert stock‑in‑trade into fixed capital. *Companies – proof of corporate intention – admissibility of sole director’s evidence in one‑man company. *Taxation – effect of subsequent sale – whether realisation of previously held capital assets yields taxable income. *Evidence – relevance of legislative/external events to taxpayer’s intention.
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3 December 1955 |
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A company’s sale of inherited land can produce taxable income where company objects and conduct show a profit-making business plan.
Tax law – Disposal of inherited property – Whether gains on sale are capital or taxable income; Company law – objects in memorandum and actual operations; Continuity not required for companies; Use of business machinery and connected-company transactions indicate trading.
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3 December 1955 |
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Whether a municipal regulation authorising suspended imprisonment for unpaid rent is intra vires of the enabling Act.
Native urban areas/regulation — Interpretation of bilingual regulation — Whether magistrate may be required, on criminal conviction, to order payment of rent and impose imprisonment in default — Ultra vires if subordinate legislation confers civil-debt recovery functions on courts without clear statutory authority — s.38(3)(o),(p) (Act 25 of 1945) construed to permit reasonable procedural adaptations for recovery.
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3 December 1955 |
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The appellant's conviction was unsafe because of unreliable identification and inadequate corroboration, so the appeal succeeded.
Criminal law – Evidence – Identification – Reliability of identification by an injured witness; contradictions and poor visibility undermining weight of identification. Evidence – Corroboration – Whether corroboration by another witness cured defects in primary identification evidence. Criminal appeal – Conviction unsafe where crucial identity evidence is unreliable.
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3 December 1955 |
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A scaled plan can satisfy description requirements; licensing decisions stand absent proof of substantial prejudice.
• Liquor licensing – s.31(2)(d) – plan and description requirements – a scaled composite plan may satisfy statutory description. • Liquor licensing – s.68 v. s.69 – suitability of premises (present) distinguished from separation requirements when licence becomes operative (future). • s.69(3)(b) – meaning of 'yard' – unenclosed communal area not necessarily a yard attached to premises. • Judicial review – s.29 – failure to apply mind requires proof of substantial prejudice to set aside Board's decision.
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2 December 1955 |
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Whether a hearsay-based, delayed belief in infidelity can constitute extenuating circumstances for murder; appeal dismissed.
Criminal law – Murder – Extenuating circumstances – Role of accused’s subjective belief versus reasonableness of its basis – Hearsay and delay in acting relevant to moral blameworthiness.
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2 December 1955 |
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Surviving spouse’s right to income and power to dispose was a usufruct, not a fiduciary interest for estate duty.
Estate duty – characterisation of surviving spouse’s interest – distinction between fiduciary interest (s.3(4)(b)) and usufructuary or like interest (s.3(4)(c)) – interpretation of will language “usufruct or income” – effect of appointment of bank as executors/trustees – power of appointment by will does not necessarily create a fideicommissum.
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1 December 1955 |
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An employer (the State) cannot recover salary paid to an injured public official as Aquilian damages for loss of services.
Roman‑Dutch law; Lex Aquilia – scope limited to damage to property; limited historical extensions to domestic servants/apprentices/spouse; employer’s action for loss of employee’s services not extendable to ordinary employees or public officials; policy/foreseeability and remoteness limit Aquilian expansion.
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1 December 1955 |
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Whether a police van driver was negligent — appellate court found brake-mark inference unsupported and restored magistrate’s no-negligence finding.
Civil — Motor-vehicle collision — onus on plaintiff to prove negligent driving by defendant’s servant; assessment of credibility of witnesses versus inferences from physical marks. Evidence — attribution of brake marks — inferences must not conflict with accepted oral evidence. Motor law — duty to give warning and to turn at opportune moment when crossing line of traffic.
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1 December 1955 |
| November 1955 |
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Buyer failed to prove vendor knowingly misrepresented borehole water supply; appeal dismissed with costs.
Sale of immovable property – alleged misrepresentation as to borehole water supply – demonstrative display of temporary strong flow – whether silence about intermittence amounts to fraudulent misrepresentation – burden of proof; agency of estate agent; credibility and reliance evaluated on balance of probabilities.
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30 November 1955 |
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Conviction for unlawful interracial intercourse upheld: corroborative circumstances sufficient and magistrate’s calling of witness lawful.
Criminal law – sexual intercourse with a person of another race – corroboration of complainant/accomplice evidence; credibility and inherent improbability; calling witnesses by court under section 247; failure to call witnesses and adverse inferences.
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28 November 1955 |
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An insured must plead and prove that a passenger was not a household member to invoke third‑party cover under the policy.
Insurance law – Motor third‑party liability – Construction of policy wording – "any person not being a member of the Insured’s household" construed as qualification of promise rather than exception – Onus on insured to plead and prove that injured passenger was not a household member – Pleading requirements and exception for failure to disclose cause of action.
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24 November 1955 |
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A lawful arrest does not justify conditioning release on payment; conditional threats to prosecute or harm others constitute extortion.
Criminal law – Extortion – Illegitimate pressure – Whether lawful arrest negates illegitimate pressure when used to demand payment – Conditional threats to prosecute or continue detention for payment constitute extortion; threats to a third party to induce payment also constitute illegitimate pressure.
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24 November 1955 |
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An interim order referring damages to arbitration is not an appealable "judgment or order" under the Appeals Act.
Appealability — Interpretation of "judgment or order" in appeals statute — Interim rulings and preliminary findings not appealable; reference to arbitration under s.24(c) does not render interim decision appealable — Costs where both parties mistaken as to appealability.
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17 November 1955 |
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Plaintiff failed to prove a binding contract because the alleged agent lacked authority and witness evidence was unreliable.
Agency and authority — whether a clerk’s communications amounted to authority to conclude a contract for his employer — proof of contract and onus — evaluation of witness credibility in contract disputes — appellate intervention where contract not proved.
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8 November 1955 |
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The applicant auctioneer cannot recover purchase price from the respondent where no special condition existed and set-off extinguished seller's claim.
Auction law – sale by auction on behalf of seller – alleged verbal special condition barring set-off; cash terms as modality of payment; set-off/compensation extinguishing seller’s claim; auctioneer’s capacity to sue – principal status, lien or implied cession; amendment to plead implied cession/hypothec.
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8 November 1955 |
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Whether limiting cross-examination of a witness called by the respondent was a prejudicial irregularity requiring the trial to be reopened.
Civil procedure – Evidence – Scope of cross-examination – Disallowance of proper questions an irregularity unless non-prejudicial – No general discretion to limit cross-examination where witness is called by a party (orthodox rule) – Distinction where judge calls witness with parties’ consent. Civil procedure – Appeal and costs – Where successful appeal required to restore denied procedural right, appellant entitled to appeal appearance costs and wasted trial costs; remaining costs in cause.
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7 November 1955 |
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Whether a company’s sale of property was taxable income or a capital receipt when held for resale.
Income tax — characterization of sale proceeds as income or capital — whether property was held as part of a profit-making scheme or as investment — change of intention — burden of proof on taxpayer — company representation in Superior Courts — right of audience.
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5 November 1955 |
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A settlor may amend an inter vivos trust with trustees’ and accepting beneficiary’s concurrence where unascertained ultimate beneficiaries have not accepted.
Trusts — inter vivos trust — revocability/amendment before beneficiary acceptance — beneficiaries acquire rights only upon acceptance; trustees’ acceptance not acceptance on behalf of unascertained beneficiaries; Perezian exception confined to inalienable family‑fideicommissum; "irrevocable" wording not dispositive; Trust Moneys Protection Act not preclusive.
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3 November 1955 |
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Whether recanting affidavits by prosecution witnesses justify admitting fresh evidence or ordering a retrial on appeal.
Criminal procedure – fresh evidence on appeal – recantation/perjury by prosecution witnesses – admissibility and credibility – requirement for corroboration/aliunde evidence – risk of abuse; appellate procedure – leave to call further evidence – Rule 6(5)bis and lodging limited parts of record.
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3 November 1955 |
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Appellant negligent for remaining on wrong side of road; respondent not negligent; appeal dismissed with costs.
Negligence — Road traffic collision — duty to keep to correct side of the road — temporary use of wrong side permissible only if view permits safe return — erroneous momentary impression insufficient to justify remaining on wrong side; credibility of police witness and inspection in loco — appellate deference to trial judge’s findings.
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3 November 1955 |
| October 1955 |
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A clause in a pre-marriage will stating it shall remain effective on remarriage can satisfy the statutory "endorsement" requirement and preserve the will.
Succession law; effect of marriage on pre-marital wills; meaning of "endorses on such will" in section 7 of the Deceased Estate Succession Act; whether endorsement must be separate or may appear in the body of the will; testamentary formalities and legislative intent.
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31 October 1955 |
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Appellate court upheld rape convictions where identification and accomplice corroboration outweighed contradictory alibi evidence.
Criminal law – rape – identification evidence – weight of complainant’s and husband’s evidence; accomplice corroboration; evaluation of alibi and contemporaneous statements; appellate review of credibility findings.
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31 October 1955 |
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Material corroboration of a confession by forensic and circumstantial facts can sustain a murder conviction despite inconclusive post-mortem evidence.
Criminal law – confession – section 286(2) of Act 31 of 1917 (now s258(2) of Act 56 of 1955) – confession may be relied on if confirmed in a material particular. Corroboration – material confirmation need not independently prove guilt but must be substantial rather than trivial. Evidence – inconclusive post-mortem does not preclude a finding of strangulation where circumstantial and forensic facts make it the probable cause. Common purpose – participation and knowledge of intent establish liability for murder. Sentence – appellate interference not warranted where imposed sentence falls within judicial discretion.
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27 October 1955 |
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Sentence reduced after appellate finding that magistrate relied on inadmissible hearsay and misdirected himself on facts.
Criminal law – unlawful possession of firearm – sentencing – admissibility of evidence at sentence of local prevalence of offence if led and cross‑examined; hearsay not admissible to establish factual aggravating circumstances. Sentencing discretion – appellate interference where trial court misdirects on facts; balancing aggravating and mitigating factors; suspension of sentence appropriate.
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24 October 1955 |
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Assessor’s proof of substantial post-fire stock shortfalls permits inference of intent to defraud insurer; accused convicted and sentenced.
Criminal law – fraud – false insurance claim – sufficiency of post-fire inspection evidence to infer falsified stock or prior removal of goods. Evidence – weight of assessor’s opinion based on debris and salvaged goods versus accused’s oral testimony. Criminal intent – ‘‘calculated to prejudice’’ standard: misrepresentation likely to deceive suffices even if insurer has knowledge. Conviction upheld where discrepancies in incombustibles point to intentional false claim.
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20 October 1955 |
| September 1955 |
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First appellant guilty of murder; second appellant reduced to accessory after the fact due to evidence of coercion.
Criminal law — joint enterprise and party liability; prearranged plan to rob leading to murder; role of contemporaneous assistance (holding victim) in establishing guilt; effect of coercion/duress on inference of prearranged participation; accessory after the fact where accused knowingly assists offenders to escape.
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15 September 1955 |
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Whether a steel supplier became a nominated subcontractor to the contractor by architect’s nomination, correspondence and parties’ conduct.
Building contracts – provisional sums/nominated sub-contractors – architect’s power to nominate – when supplier becomes contractor’s sub-contractor – effect of architects’ certificates and contractor drawing payments – inference from correspondence and course of dealing.
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14 September 1955 |
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Whether both the vehicle owner’s failure to provide adequate rear warning and the approaching driver’s lack of proper lookout made them jointly negligent.
Negligence — duty to warn — adequacy of warning devices and prescribed reflectors on trailers left on public road at night.* Driver’s duty — lookout and speed — whether approaching driver should have seen stationary trailer and avoided collision.* Evidence — credibility of eyewitnesses about warnings; value and limits of on‑site visibility tests; effect of dust on object visibility.* Appellate review — reluctance to disturb trial court’s factual findings and credibility assessments absent clear error.
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14 September 1955 |
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Court holds joint-possession clause lapses on death of first surviving legatee; other testamentary conditions are not void for uncertainty.
Testamentary conditions – interpretation of ambiguous wills – when ambiguity renders a clause inoperative; mutual-possession clauses lacking patrimonial content; prohibition on alienation and succession (majorat) clauses – uncertainty does not equal invalidity; use of extrinsic evidence and interpretive presumptions; appointment and costs of curators ad litem.
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13 September 1955 |
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Prefatory words limiting means claims to use in the claimed method prevent apparatus being claimed per se.
• Patent law – claim construction – means claims prefaced by "for use in carrying out the method" construed as limited to use with the claimed method and not as article claims per se. • Patent of addition – improvements claimed in combination with a process are not claimed independently absent express words. • Claims define monopoly; read claims with specification.
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8 September 1955 |
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Evidence of related assaults was admissible; self-defence rejected and murder conviction and death sentence upheld.
Criminal law – murder – identification and intent – admissibility of similar acts evidence to show intent, common design, or negate accident; self-defence – credibility of accused’s account; sentence – no extenuating circumstances. |
7 September 1955 |
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Court refuses outright distribution under s.2(b), preferring protection of future beneficiaries and remits matter for price-evidence.
Testamentary restrictions on alienation; removal under s.1(c) of Act 2 of 1916; s.2(a) (investment/holding) v s.2(b) (absolute distribution); protection of contingent and unborn beneficiaries; effect of a third‑generation fideicommissum.
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6 September 1955 |
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Sentence set aside and remitted where accused reasonably explained failure to give mitigation evidence.
Criminal law – sentence – application to set aside sentence and remit for mitigation evidence where accused gave no evidence at trial; standard for reasonable explanation for failure to tender mitigation; appellate review of magistrate’s sentencing discretion.
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1 September 1955 |
| August 1955 |
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Disarming an assailant then striking with an axe at the head constituted culpable homicide, not lawful self-defence.
Criminal law – Homicide – Self-defence – Disarming assailant and subsequently striking with an axe – Use of an extremely dangerous weapon to head/upper body not justified – Culpable homicide established; sentencing and refusal of leave to appeal; suspension of corporal punishment pending application to Appellate Division.
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31 August 1955 |
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Forgery and corruption convictions upheld where the appellant used forged promissory notes to obtain Board funds.
Criminal law – Forgery and uttering – making and using promissory notes with forged signatures – intent to defraud and prejudice to creditor; Prevention of Corruption Act (No. 4 of 1918) – s.2(a),(b) – giving and accepting inducements by agent; Criminal Procedure – particulars of charge – use of term "discounting" with schedules sufficient under s.127; Evidence – credibility and exclusion of explanation of prior statement; Sentencing – severity justified by scale and systematic nature of offences.
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31 August 1955 |
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A clear deeming provision was held to operate retrospectively, rendering the appellant's post‑promulgation claim ineffective.
Statutory interpretation — Deeming provision construed as retrospective — section 1(2) of Act 36 of 1953 treated amendment as operative from 5 June 1944; Customs and excise — seizure and forfeiture under Act 35 of 1944 — notice of claim timing; Presumption against retrospectivity considered but displaced by clear legislative language.
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30 August 1955 |
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Omission from the parliamentary voters' list (post-1950) causes a councillor to lose qualification and vacate office.
Municipal Elections Ordinance – ss.4 and 7 – 1950 amendments to s.8 – municipal voters' roll made dependent on parliamentary voters' list – appearance on parliamentary list (plus residence/property) an essential qualification – omission from list disqualifies councillor ipso facto – restoration not retrospective.
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24 August 1955 |
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Tearing up a contract and repaying a loan did not terminate an extended residence right absent clear intention or agreement to that effect.
Contract law – alleged termination by physical destruction of contract; waiver and intention – whether words and conduct amounted to relinquishment of extended right of residence; proof required to establish termination of contractual right; claim for damages for unlawful occupation dismissed where termination not proved.
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23 August 1955 |
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Conviction under common purpose requires proof accused knew a co-accused was likely armed; failure to so direct jury vitiates conviction.
Criminal law — Common purpose — Liability for murder/attempted murder requires actual or inferable knowledge that a co-participant was likely to commit the further criminal act — Judicial direction — summing up must put to jury crucial issues (e.g., knowledge of an accomplice being armed) — Reasonable doubt — explanatory language must not suggest lower standard — Evidence — witnesses may describe facts from which another’s state of mind is inferred.
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22 August 1955 |
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Belief in witchcraft may be considered but does not excuse deliberate killing of innocents; appeal dismissed.
Criminal law – murder – extenuating circumstances – cultural belief in witchcraft may be considered but does not excuse deliberate acts causing probable death of innocents – appellate interference only for misdirection or irregularity.
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22 August 1955 |
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Self-defence unavailable where accused, having inflicted a dangerous wound, was lawfully pursued by private persons effecting an arrest.
Criminal law — Self-defence — availability where accused was original aggressor and later pursued lawfully by private persons effecting arrest. Criminal law — Private persons’ power to arrest without warrant under First Schedule offences; scope of duty to inform arrested person of cause of arrest (section 32(bis)). Criminal law — Mistake of fact in self-defence — requirement of honesty and, normally, reasonableness. Murder — Reckless disregard for life (appreciation of risk coupled with recklessness) sufficient for murder.
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22 August 1955 |
| July 1955 |
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Confession, medical and eyewitness evidence proved murder; accused’s self‑defence rejected and death sentence imposed; leave to appeal granted.
Criminal law – murder – sufficiency of confession and eyewitness identification – rejection of self‑defence where wounds and demonstration contradict accused’s version – sentence; leave to appeal granted under s.33(1)(b).
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20 July 1955 |
| June 1955 |
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A price-adjustment clause after the delivery date can create an option, validating the respondent’s plea.
Contract — Interpretation of written contract — Clause providing that price is "subject to adjustment" if delivery not made by prescribed date — effect may be to create an option to sell rather than an unconditional sale. Pleadings — Exception to plea — whether plea discloses no defence where it relies on an operative contractual clause. Evidence — Admissibility of surrounding circumstances — extrinsic evidence not admissible where language of contract is plain. Contractual estoppel/clean hands — party may rely on a contractual provision inserted for his benefit; principle that one may not take advantage of his own wrong does not apply where clause confers a legitimate contractual right.
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20 June 1955 |
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Vehicle ownership and suspicious statements without proof beyond reasonable doubt cannot sustain a conviction for conveying dagga.
Criminal law – narcotics – conveyance/possession – circumstantial evidence and vehicle ownership – credibility of witnesses – reasonable doubt – appellate review of factual findings.
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20 June 1955 |
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Seizure valid where plant reconditioned tyres without required pre-marking and job-book entries; appeal dismissed with costs.
Customs & Excise — seizure under s.30(1) — no prior hearing required; s.30(3) — owner must within 30 days satisfy Commissioner; Regulations 102/103 — mandatory pre-marking and job-book entries before reconditioning; reconditioning without compliance constitutes unlawful use and forfeiture under s.85.
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20 June 1955 |
