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Citation
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Judgment date
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| December 1957 |
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A court may, in its discretion, grant matrimonial relief despite an applicant’s past adultery where circumstances warrant.
Divorce and matrimonial remedies – restitution of conjugal rights – adultery – malicious desertion – judicial discretion to grant relief despite applicant’s adultery – rejection of rigid compensation rule in Zelle v Zelle – considerations: reformation, children’s interests, public policy. |
13 December 1957 |
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Whether past adultery by the applicant can be condoned to permit restitution or divorce, amid conflicting precedents.
* Family law – Restitution of conjugal rights/divorce – Effect of plaintiff’s adultery – Whether courts may condone past adultery – Conflicting provincial authority and recognised exceptions to bar on relief.
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13 December 1957 |
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Where ambiguous, "water for domestic purposes" includes pool-filling if the pool existed and was incidental to the homestead.
Servitude/contract construction — "water for domestic purposes" — linguistic ambiguity — surrounding circumstances admissible — swimming pool included where it existed and was incidental to homestead occupation; costs to successful appellant.
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13 December 1957 |
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Whether the appellant’s admissions and confessions sufficed to convict of murder despite limited independent corroboration.
Criminal law – murder; confessions and in‑court admissions – distinction between extra‑judicial confessions requiring corroboration and in‑court admissions/pleas of guilty; compulsion/duress defence; liability for co‑conspirator's plan to kill for medicinal purposes; admissibility under Proclamation 30 of 1935 (s.244(2), s.243).
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13 December 1957 |
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A statutory administrative discretion to grant access to trust land does not require prior audi alteram partem hearing.
Administrative law – Native Trust Land Act 18 of 1936 s.24(1) – discretion to grant permission to enter Trust land is administrative, not quasi‑judicial; audi alteram partem not required where no antecedent right exists; judicial review restricted to absence of decision, mala fides, corrupt motives or statutory non‑compliance.
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9 December 1957 |
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A privileged report that adds an unverified defamatory imputation defeats privilege and attracts liability.
Defamation – qualified/occasion privilege – repetition of third‑party report at association meeting – publisher’s addition of unverified imputation – abuse of privilege and animus injuriandi established – duty to verify serious allegations – award of damages (£800).
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9 December 1957 |
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Compulsory whipping upheld for an actual receiver; Schedule exception did not exempt a receiver who was also guilty of theft.
Criminal law – Receiving stolen property vs theft – Compulsory whipping under statutory schedule – Construction of exception referring to convictions under section 205 on evidence establishing theft – Effect of Rex v Naidoo (1949) – Whether 1955 Schedule alters operation of section 205.
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9 December 1957 |
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Accused convicted of culpable homicide; intoxication negated murder intent and eyewitness testimony, despite inconsistencies, was accepted.
* Criminal law – Homicide – culpable homicide vs murder – effect of intoxication on specific intent for murder.* Evidence – credibility of eyewitness testimony – discrepancies between preparatory examination and trial – permissible to accept despite inconsistencies where explanation plausible.* Forensic evidence – medical location of wound considered in light of eyewitness account, lighting and rapidity of events.* Defence pleas – self-defence and accident rejected where implausible and unsupported by corroboration.
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6 December 1957 |
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Damages for misrepresentation about part of property are limited to proven loss causally attributable to that part.
Fraudulent misrepresentation — measure of damages — causal connection required; where representation concerns a divisible component of land, damages limited to loss attributable to that component (value of missing trees); claim for development costs and general improvements requires pleading and cogent evidence; onus remains on plaintiff to prove causation and quantum.
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5 December 1957 |
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Whether a post-1913 lease was a protected renewal of a pre-1913 agreement and whether sentence for a single transaction was excessive.
Natives Land Act 1913 s1(2) — protection of pre-existing leases under s8(1)(a) — effect of later Native Trust and Land Act 1936; renewal/continuation of leases; duress and validity of agreements; distinction between concluded transaction and continuing offence for sentencing purposes.
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5 December 1957 |
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Appeal: conflicting witness evidence defeated proof of murder; conviction reduced to culpable homicide and sentence confirmed.
Criminal law – Self‑defence – Burden to prove attack exceeded reasonable self‑defence beyond reasonable doubt – Conflicting eyewitness evidence – Where excess is established, verdict generally culpable homicide not murder. |
5 December 1957 |
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Court rejected self-defence due to contradictory testimony and convicted the accused of culpable manslaughter.
* Criminal law – murder v. culpable manslaughter – assessment of provocation and probabilities; * Self-defence – requirement of credible evidence of a weapon and imminent danger; * Evidence – credibility and effect of material contradictions in defence witnesses; * Use of knife – fatal wounds and causation of death.
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5 December 1957 |
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A court may order a local council to issue trading-site certificates and renewals where officials’ misconduct deprived the applicant of rights.
Location/trading regulations – allotment of trading sites – requirement for documentary proof to obtain trading licence; Council liability – acts of Location officials performed in course of duties and Council’s failure to dissociate; Administrative remedies – limits of domestic appeals (Regulation 30) and court jurisdiction where fraud/irregularity alleged; Renewal of trading rights – Regulation 25 and nunc pro tunc relief.
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5 December 1957 |
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Peri-urban building by-laws validly interpreted and applied; farmer convicted for erecting agricultural buildings without required approval.
* Building by-laws – definition of "building" – proviso requiring 300 yards to nearest boundary or street – purposive interpretation. * Administrative law – ultra vires and unreasonableness – unreasonableness alone insufficient; need for mala fides or excess of power. * Local government – inclusion of areas in peri-urban board jurisdiction – criteria: density, class/character, sanitary conditions; subdivision evidence sufficient. * Criminal law – erection of agricultural buildings without prior written approval contrary to Building By-Laws. |
4 December 1957 |
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A beneficiary's right to trust income can be a 'usufructuary or other like interest' subject to estate and succession duty.
Estate duties – s.3(4)(c) – 'usufructuary or other like interest' – beneficiary's right to trust income can be 'like' a usufruct; interpretation not limited to real rights; valuation – s.5(b)(ii) applicable where full ownership accrues by merger; new point on appeal (s.3(3)(a)) not entertained.
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2 December 1957 |
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A final judgment obtained by perjured evidence will not be set aside unless the successful litigant was party to the fraud.
* Civil procedure – setting aside final judgments – fraud and perjury – whether judgment may be reopened where successful litigant was not party to the fraud; public policy and finality of judgments.
* Evidence – re‑hearings – a party may not normally reopen a final judgment on the same evidence previously rejected.
* Procedure – condonation for defective notice of appeal – discretion to grant but costs appropriately allocated.
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2 December 1957 |
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An applicant holding a servitude is "interested in" expropriated land and may claim compensation under section 48.
Expropriation — section 48 (Proclamation) — meaning of "interested in" — servitude and restrictive covenant holders entitled to compensation; "all other parties" not limited by notice provisions (sections 4–6); distinction between injurious construction and use — entitlement depends on proof of damage.
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2 December 1957 |
| November 1957 |
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Whether an officer admitting a person into a cell must make reasonable enquiries and can be negligent for so admitting them.
Police liability – Duty of care by officer controlling access to cells – Reasonable enquiry required before admitting an unauthorised person; vicarious liability and foreseeability of assault by fellow officer; liability of supervising officers for failure to ensure knowledge of standing orders.
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28 November 1957 |
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Convictions for rape quashed where complainants’ improbabilities, inconsistencies and a credible alibi raised reasonable doubt.
* Criminal law – Rape – evaluation of complainant credibility – contradictions, inherent improbabilities and possible fabrication. * Criminal law – Alibi – where credible alibi creates reasonable possibility of innocence, conviction cannot stand. * Evidence – failure to report, conduct after alleged offence, and pregnancy may bear on motive and credibility. * Standard of proof – Crown must prove guilt beyond reasonable doubt; where key witnesses are discredited convictions must be quashed. |
28 November 1957 |
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A councillors participation in council proceedings affecting his pecuniary interest invalidates those proceedings under section 67(2).
Municipal law; statutory disqualification: participation of councillors with pecuniary interest invalidates council proceedings (s67(2), Ordinance 15 of 1952); councils approval of schedule of minor roads (s124(3)) is substantive and essential to Administrators approval (s124(4)); joinder of Administrator unnecessary where council approval was tainted.
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26 November 1957 |
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Agreement to immediate intercourse followed by acts directed to consummation constitutes an attempt, not mere preparation.
* Criminal law – Attempt v. preparation – sexual offences – where parties agree to immediate intercourse and commence continuous acts towards consummation, an attempt is made; erection or penetration not required.
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25 November 1957 |
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A charge under s.36 must allege that reasonable suspicion existed while the accused were still in possession; present-tense pleading may be defective.
* Criminal law – s.36 General Law Amendment Act 62 of 1955 – offence requires accused to be found in possession while reasonable suspicion that goods are stolen exists – suspicion must relate back to time of possession. * Pleading – indictment/summons must properly allege the essential element of contemporaneous reasonable suspicion; use of present tense may be insufficient where possession is pleaded in the past. * 'Unable to give a satisfactory account' is a continuing state and may be pleaded in present tense.
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25 November 1957 |
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Voluntary intoxication and amnesia do not automatically negate intent; deliberate use of a retrieved weapon supported a murder conviction.
Criminal law – Murder v culpable homicide – Voluntary intoxication and amnesia do not automatically negate dolus; deliberate procurement and use of a weapon supports inference of intent to kill; medical/psychiatric evidence admissible to assess capacity but not dispositive.
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25 November 1957 |
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An accomplice’s inconsistent statements do not preclude conviction where corroborated testimony and circumstantial evidence sustain guilt.
* Criminal law – accomplice evidence – cautionary rule – prior inconsistent statements do not mandate wholesale rejection; corroborated parts may be accepted.
* Criminal law – circumstantial evidence – corroboration by independent facts (vehicle registration, insurance form, injuries, witness testimony) may sustain conviction.
* Sentencing – dagga offences – sentence not excessive given large quantity and statutory penalties.
* Confiscation – forfeiture of vehicle rights lawful under statutory provisions (s.360 and Schedule).
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22 November 1957 |
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Confession admissible: the appellant was in his sound and sober senses and not shown to have been coerced; appeal dismissed.
Confession admissibility; proof of "sound and sober senses"; voluntariness and undue influence; magistrate's procedural enquiries and departmental guidelines; late and uncorroborated allegations of police assault; trial judge's duty to assess admissibility and to revisit ruling if warranted.
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21 November 1957 |
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Illegality of an attempted arrest does not automatically reduce the appellant’s intentional killing to culpable homicide.
* Criminal law – unlawful arrest by tribal probationer – legality of arrest and onus on Crown to prove it. * Right to resist illegal arrest – only reasonable force justified; excessive force causing death may amount to murder. * Illegality of arrest does not automatically reduce murder to culpable homicide or impute lack of intent. * Provocation and extenuating circumstances – illegality may be evidence of provocation but is not determinative.
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19 November 1957 |
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Clear co‑worker identification and corroborating police evidence disproved the accused’s alibi, leading to conviction for robbery.
* Criminal law – robbery – identity – sufficiency and reliability of visual identification evidence; parade irregularities do not automatically vitiate identification. * Criminal procedure – adducing rebuttal evidence after defence: admissible where relevance emerges in cross-examination. * Evidence – weight of alibi where police fail to investigate promptly; late police evidence may nonetheless undermine alibi.
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19 November 1957 |
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Late exclusion of narrow defence evidence was irregular but did not cause failure of justice; appeal dismissed.
Criminal procedure – refusal to admit further defence evidence after close of defence – scope of trial court’s discretion – irregularity but narrow exclusion may not cause failure of justice (s.369(1) proviso). Substantive: accessory after the fact to culpable homicide — assessment of credibility, demeanour, medical evidence and post-offence concealment as circumstantial proof.
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14 November 1957 |
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Where robbers formed a common purpose to stifle cries by force, recklessness as to death renders all guilty of murder.
Criminal law – Common purpose/joint enterprise – Robbery leading to strangulation – Where co‑participants contemplate stifling cries by force to throat/nose/mouth, they are reckless as to death and guilty of murder if death results; accomplice evidence tainted by police rereading is unreliable; disguises or tying hands do not necessarily negate common-purpose culpability.
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7 November 1957 |
| September 1957 |
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Exempted vehicle owners are treated as insurers under the Motor Vehicle Insurance Act: two‑year prescription applies and Workmen’s Compensation only prevents double recovery.
• Motor Vehicle Insurance Act 29 of 1942 — s.19(3) ’mutatis mutandis’ application of s.11 to exempted owners — includes s.11(2) prescriptive period.
• Prescription — conflict between national statute (two years) and provincial ordinance (four months) — national statute prevails.
• Workmen’s Compensation Act — proviso to s.11(1) prevents double recovery but does not bar recovery of excess over compensation.
• Employer’s liability — s.7 WCA does not bar action under Motor Vehicle Insurance Act where owner is treated as insurer.
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30 September 1957 |
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Registrar may be heard and appeal; "Ronpha" lacked distinctiveness and was not registrable.
Trade marks — Distinctiveness and secondary meaning — Invented word ('Ronpha') for grass — Insufficient evidence of exclusive association; not adapted to distinguish goods. Administrative law — Registrar of Trade Marks entitled to be heard in Provincial Division and to appeal his decision.
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30 September 1957 |
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Circumstantial and direct evidence of concealment and possession supported a murder conviction; majority upheld death sentence, minority would reduce to culpable homicide.
Criminal law – Homicide – Identity of corpse established by cumulative circumstantial and direct evidence – Decomposed body – Inference of unlawful killing from conduct showing knowledge and concealment – Standard of proof in circumstantial cases: moral certainty, not necessity to exclude every hypothesis of innocence – Distinction between murder and culpable homicide where intention to kill cannot be directly proved.
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30 September 1957 |
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Whether a binding promise to marry existed and whether alleged pregnancy misrepresentation justified rescission.
Contract — breach of promise to marry — whether an unconditional promise was made; misrepresentation (alleged pregnancy) as ground for rescission — distinction between innocent and fraudulent misrepresentation — assessment of credibility and probabilities; conduct after promise (holiday, shared tent, registration as "Mr. and Mrs.") as evidence against rescission; damages for breach of promise.
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30 September 1957 |
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Teacher retained provincial security of tenure after transfer absent Ministerial regulations or an approved new contract.
Education law – Bantu Education Act 1953 s15(4)–(5): preservation of provincial law pending Ministerial regulations – Ordinance 5 (Ch.28) security of tenure for teachers taken over by School Boards; appointments and subsidies subject to Secretary’s approval; refusal of approval means no new contract; costs against Secretary who opposed application.
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27 September 1957 |
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Whether a brutal assault that left a victim helpless by railway tracks amounts to murder or culpable homicide.
Criminal law – murder v. culpable homicide – proof of causation where death may be caused by assault or subsequently by a passing train; dolus eventualis – leaving a helpless person in a dangerous position adjacent to railway line; necessity for Crown to exclude reasonable possibility that train alone caused death; extenuating circumstances and sentence.
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27 September 1957 |
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Intoxication and dagga did not negate intent; murder conviction affirmed and appeal dismissed; stricter test required for leave to appeal.
* Criminal law – Murder – Voluntary intoxication – Whether consumption of alcohol and dagga negated intention to kill or constituted extenuating circumstances reducing offence to culpable homicide. * Criminal procedure – Appeal – Appellate review of factual findings of triers of fact – absent misdirection or irregularity appellate court will not substitute its view. * Criminal procedure – Leave to appeal – statutory criterion requires reasonable prospect of success.
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27 September 1957 |
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A Group Areas Board committee may originate and publish proposals and fairly hear representations without unlawful prejudgment.
Group Areas Act — interpretation of ss.24, 26, 27, 28 — Board’s advisory role to Minister; publication of proposed situation or plan; committees may originate proposals and hold inquiries; originating proposals does not of itself constitute unlawful prejudgment or bias.
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27 September 1957 |
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Buyer entitled to cancel purchase and recover loss where seller falsely represented coal as first‑grade with calorific value ~12.
* Contract — misrepresentation — statement as to coal quality (calorific value) — whether representation was false and induced purchase; seller’s knowledge of falsity. * Remedies — repudiation for misrepresentation and assessment of damages as loss incurred during possession. * Appellate procedure — effect of no cross‑appeal on disturbance of trial judge’s separate findings. * Costs — discretionary award where multiple defences were pleaded.
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26 September 1957 |
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Appeal allowed where Crown failed to prove identity of assailant or common purpose; convictions set aside.
Criminal law – murder – identification and common purpose – reliability of eyewitness testimony – improbability of observations at long distances – failure to prove which accused delivered fatal blow – conviction set aside.
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26 September 1957 |
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Conviction based on last-seen circumstantial evidence set aside where timing, route and proof were not established beyond reasonable doubt.
Criminal law – Circumstantial evidence – Last-seen-in-company inference; timing and route of movements; adequacy of medical evidence to fix time of death; accused’s false statements and possession of common weapon as supplementary evidence; conviction unsafe where Crown fails to exclude reasonable alternatives. |
24 September 1957 |
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Amendment of articles together with trust deed vested trustees with shares free of governing director’s pre-emption, affecting estate and succession valuation.
Estate duty and succession duty — Trust transfer and contemporaneous amendment of articles — Whether trustees’ shares remained subject to governing director’s pre-emption/compulsory purchase — Valuation of bare dominium under s.5(b)(11) (intrinsic value vs par) — Succession duty: removal of risk vs accrual of an interest in property under s.10(b).
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23 September 1957 |
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Appellant’s reckless handling and discharge of a firearm in public established culpable homicide; appeal and sentence dismissed.
Criminal law – culpable homicide – negligent handling and discharge of firearm in a public street – mens rea and foreseeability; causation – intervention by third party (novus actus) – when it does not break causal link; sentence – weight of intoxication and mitigation for first offender.
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23 September 1957 |
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Appellate court upheld murder conviction where ballistic and credible eyewitness evidence repudiated appellant’s accidental-discharge story.
Criminal law – murder v. accidental discharge – evaluation of ballistic and eyewitness evidence; credibility assessment; false exculpatory account as basis for inferring intent; sentence and extenuating circumstances. |
21 September 1957 |
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Majority accepts Crown eyewitnesses and rejects accused’s self-defence account as improbable, resulting in a murder conviction.
Criminal law – murder – evaluation of competing eyewitness accounts – credibility and inherent probability; self-defence raised by accused – requirements for reasonable doubt; late assertions of injury and failure to preserve evidence affecting credibility; divided bench where lack of motive may affect acceptance of otherwise credible testimony.
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20 September 1957 |
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Accused convicted of assault with intent to commit rape on credible complainant evidence corroborated by an independent witness.
Criminal law – assault with intent to commit rape – assessment of credibility – accused’s demeanour and improbable version – corroboration by independent witness and discovery of money – Crown’s burden to prove guilt beyond reasonable doubt.
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20 September 1957 |
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Appeal against rape conviction dismissed: trial court credibility findings upheld and sentence affirmed.
Criminal law – Rape – Credibility assessment of complainant versus accused – Minor inconsistencies not necessarily fatal – Corroboration by surrounding circumstances and abuse of official position; Sentence – police officer abusing authority to obtain sexual intercourse warrants severe punishment.
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19 September 1957 |
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Appellate court set aside murder conviction where eyewitness inconsistencies and unresolved doubts defeated proof beyond reasonable doubt.
Criminal law – murder – reliance on eyewitness identification – risks of reconstruction and mistaken observation – inconsistencies between preparatory-examination and trial evidence – significance of discovery of weapon and circumstances of arrest – reasonable-doubt standard (Rex v Dhlumayo).
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19 September 1957 |
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The court held pasteurisation constitutes an "adaptation for sale or use," so the premises qualify as a factory.
Factories Act s.3(1)(a)(iii) – "adaption for sale or use" – pasteurisation of milk – statutory interpretation – Afrikaans original "bewerk" – distinction between preservation/cooling and adaptation – authorities on pasteurisation and rating/factory status (Tranent; Carmarthen; Wiltshire).
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16 September 1957 |
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Entering into a lease by a disqualified person is an acquisition of immovable property under the Group Areas Act; an earlier permit did not validate the 1953 lease.
Group Areas Act — definition of "immovable property" — includes leases and sub-leases — entering into a lease by a disqualified person can constitute "acquiring" immovable property; Prior permit under earlier Asiatics legislation does not validate post-Act leases absent deeming or saving provision.
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12 September 1957 |
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A trial judge may impose death despite a jury’s finding of extenuating circumstances when discretion is properly exercised.
Criminal law – Sentencing – Discretion of trial judge to impose death despite jury’s finding of extenuating circumstances; psychopathy/abnormality does not of itself constitute legal insanity; accused bears onus to prove insanity on balance of probabilities; judge may consider character, prior conduct and risk of reoffending at sentencing.
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12 September 1957 |
