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Citation
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Judgment date
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| December 1958 |
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Represented accused retains right to make an unsworn dock statement; wrongful refusal can vitiate conviction.
Criminal procedure — s.227(3) Criminal Procedure Code — right of accused to make unsworn dock statement although legally represented; evidential status and weight of unsworn dock statements; timing of dock statement relative to defence witnesses and addresses; wrongful refusal to permit dock statement may vitiate conviction.
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20 December 1958 |
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Conviction set aside where trial court misdirected itself on prior consistent statements and improperly rejected the alibi.
Criminal procedure – identification evidence – prior consistent statements – generally inadmissible except to rebut impeachment or recent fabrication; court’s duty to require production or proper proof of prior statements; alibi evidence – improper rejection and misdirection; irregularity causing failure of justice.
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15 December 1958 |
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The appellant’s attack that a delayed complaint undermined the rape conviction failed where medical and eyewitness corroboration supported the complainant.
Rape and robbery – delayed complaint – admissibility of evidence of complaint to negative silence and show consistency – weight of delay and evasive conduct – corroboration by medical (hymenal tears), eyewitness and circumstantial evidence – procedural irregularity in leading complaint not resulting in failure of justice.
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12 December 1958 |
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Provincial income tax may not be levied on the penal additional tax imposed under section 65 of the Income Tax Act.
Tax law — Section 65 additional tax of Income Tax Act — Penal character of additional charge — Not 'income' within meaning of Income Tax Act; Provincial taxation — Act 38 of 1945, s.8 — Provincial tax limited to ‘income’ defined in Income Tax Act; Provincial assessments invalid where calculated on section 65 charges.
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10 December 1958 |
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Proceeds from sale of share subscription rights were taxable where the shares were held as part of a profit‑making trading scheme.
Income tax — sale of subscription rights — whether proceeds are income or capital; Character of assets — intention at acquisition; Change of intention/policy — effect of later alteration of memorandum and directors' statements; Group finance and share‑dealing — indicators of a profit‑making scheme; Sale of rights integral to trading scheme qualifies as income.
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10 December 1958 |
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Provisional acceptance of new terms did not create a contract; Natal s.68 limitation does not cover subsidized community schools.
Bantu Education Act – conversion of Government Bantu School to Bantu Community School – conditions of service – formation of contract by acceptance of Appendix A where Annexure A not completed – Glen Grey–Butterworth principle. Prescription/limitation – Natal Education Ordinance s.68 – applicability limited to schools "maintained by the Administration"; s.15(4) of Bantu Education Act does not extend s.68 to subsidized community schools.
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10 December 1958 |
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Confining a servant nearby while stealing from the house constitutes robbery; identification evidence upheld.
Criminal law – Robbery – requirement that property be taken from the person of or in the presence of victim – taking from house while servant assaulted and confined in adjacent room regarded as taking in victim's presence. Criminal procedure – Identification – credibility and opportunity to observe – appellate court reluctant to disturb magistrate's acceptance of Crown witnesses. Common law – elasticity of 'in presence' requirement in robbery offences.
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10 December 1958 |
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Conviction for attempted murder set aside because identification and circumstantial evidence did not exclude reasonable doubt.
Criminal law – attempted murder – proof beyond reasonable doubt – reliability of identification by close neighbours – circumstantial evidence and motive – appellate review where verdict rests on doubtful witness identification
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10 December 1958 |
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Profit on sale of shares by a poorly capitalised, highly borrowed holdings company was held to be taxable revenue, not capital.
Tax law – Nature of receipts – Whether profit on sale of shares is income or capital – Characterisation depends on facts and intention; factors include capitalisation, borrowing, income-producing assets, marketability and purpose of acquisition; appellate review of factual characterisation limited to cases where no reasonable evidence supports the finding
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10 December 1958 |
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Payments induced by threats from a police officer constituted extortion; witness credibility and compulsion elements upheld, appeal dismissed.
Criminal law – Extortion (afpersing) – element of compulsion established by threats of arrest, fine, confiscation and deportation – credibility of complainants – use of evidence from one charge to support findings on another – variance between charge-sheet and oral evidence not necessarily fatal.
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10 December 1958 |
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A valid, Secretary‑approved school‑board contract displaced a teacher’s prior Ordinance protection; dismissal under the new conditions was upheld.
Administrative law – Bantu Education Act – ministerial regulations – validity and promulgation by Government Notice; Education law – transfer of teachers from provincial to national service – effect of contracts adopted by school boards on prior statutory protections; Contract law – teacher’s contract under Appendix A – effect of Secretary’s approval; Public policy – whether contracting out of statutory protection permitted.
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10 December 1958 |
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Whether the marital presumption of paternity can be rebutted on a balance of probabilities by spouses' testimony of abstinence.
Family law – legitimacy – presumption pater est quem nuptiae demonstrant – presumption rebuttable in civil proceedings on a balance of probabilities by evidence of non-access by spouses during conception period. Evidence – standard of proof in civil cases – preponderance of probabilities applies to rebuttal of legal presumptions. Credibility – appellate court will not lightly disturb magistrate’s findings on witness credibility and acceptance/rejection of evidence.
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10 December 1958 |
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A notice under s.99(a) need only substantially state essentials so the Administration can investigate, not satisfy hyper-technical particularity.
Administrative liability — notice requirements under Ordinance 9 of 1933 s.99(a) — substantial (not hyper-technical) compliance sufficient; notice must identify incident, date, vehicle and cause to permit investigation; question whether Provincial notice provision is repugnant to national Act 29 of 1942 left open.
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8 December 1958 |
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Identification issues and absence of available prosecutorial evidence persuaded the court to grant leave to appeal.
Criminal law – Identification evidence – Sufficiency and reliability of eyewitness identification – Alibi contradicted by prison records – Prosecution’s failure to call available evidence (e.g. police witness) may render conviction arguable – Leave to appeal granted.
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8 December 1958 |
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Whether service "in writing" under s.93 requires personal delivery and whether a mailed debit note suffices as statutory notice.
Municipal law – interim valuations and rates – s.93 Ordinance No. 6 of 1948 – meaning of "serve notice in writing" – informal written communication and postal delivery as sufficient service; posting raises rebuttable presumption of delivery; fourteen‑day limit peremptory as to diligence but breach does not automatically invalidate valuation; debit note/account may constitute statutory notice.
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8 December 1958 |
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Donated shares must be valued as the identical shares at death; a later genuine capital increase does not change their death-duty value.
Death duty – Donation inter vivos of shares – Identity of donated property – Valuation as at date of death under Death Duties Act s.5(d) – Effect of subsequent genuine increase in company capital – Control and valuation
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4 December 1958 |
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Appellant’s fraudulent obtaining and conversion of company cheques amounted to theft; convictions and suspended sentence upheld.
Criminal law – Theft – fraudulosa contrectatio – obtaining cheques by false representation and applying them to personal debts constitutes theft (cheque equivalent to money). Criminal procedure – Appeal – credibility findings of trial court – appellate court may uphold magistrate’s findings where supported by evidence. Criminal procedure – Variance between charge and evidence – section 180(4) Act 56 of 1955 can validate conviction where accused not prejudiced. Sentencing – refusal to delete suspended portion where magistrate was satisfied restitution had been made.
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4 December 1958 |
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Misdirection on accomplice corroboration was an irregularity; convictions set aside as proper jury would not inevitably have convicted.
Criminal law – accomplice evidence – cautionary rule – trial judge’s misdirection where corroboration “in material respects” was treated as sufficient without requiring corroboration implicating the accused – misdirection amounts to irregularity; appellate test whether a reasonable jury properly instructed would inevitably have convicted; accomplice indemnity/discharge (s.254) procedural issues noted but not decided.
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2 December 1958 |
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Court allowed suspension of a second compulsory whipping where successive whippings close in time amounted to special circumstances.
Criminal law; compulsory whipping and imprisonment; suspension of sentence; "special circumstances" (temporal proximity of offences and multiple whippings); limitation on suspending only part of a sentence when both whipping and imprisonment are imposed; appellate power to alter sentence but not to increase severity.
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1 December 1958 |
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Appellate court affirms conviction for theft of 19 ewes, finding trial credibility and sentencing exercise proper.
Criminal law — Theft of livestock — sufficiency of identification by ear‑marks and other marks, age evidence and inspections; appellate review of magistrate’s credibility findings; sentencing discretion.
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1 December 1958 |
| November 1958 |
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Eyewitness and police‑admission corroboration supported murder conviction; self‑defence rejected and death sentence affirmed.
Criminal law — Murder — Use of lethal weapon and fatal wound in vital part — Intention to kill may be inferred; Evidence — Credibility of eyewitness and corroborating police admission; Self‑defence — not established; Sentence — death affirmed on appeal.
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27 November 1958 |
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Representation of being "able and willing to pay" denotes present intention to pay; causing others to make such representations supports conviction.
Criminal law – False pretences – "able and willing to pay" – represents purchaser's present intention/belief to pay when due – agency/causing representations by others – insolvency and use of companies in fraud.
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27 November 1958 |
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A victim’s handing over of property under threats of immediate violence constitutes robbery and theft; actual force is not required.
Criminal law – Robbery – Definition – Whether threats causing a victim to hand over property constitute robbery; actual physical force not required. Criminal law – Theft and fraud – Handing over induced by deception or fear vitiates consent; overlap with extortion and theft by false pretences
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24 November 1958 |
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Whether a single identifying witness proved the appellant’s guilt beyond reasonable doubt in a violent robbery.
Criminal law – robbery and assault – identification by single witness – reliability of visual and voice identification; corroboration by knowledge of victim’s house and goods; necessity for caution where single-witness identification is disputed; adequacy of trial court’s reasoning and unexplained delay before arrest.
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24 November 1958 |
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Appellant’s admission of strangulation plus corroborative circumstantial evidence proved intention to kill; murder conviction affirmed.
Criminal law – Murder – proof of intention where post-mortem inconclusive – reliance on circumstantial evidence and an extra-judicial admission to a third party – inferences from concealment, possession of victim’s property and false denial – distinction from R v Mlambo.
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21 November 1958 |
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A magistrate may amend a defective charge (even if it initially discloses no offence) if amendment causes no prejudice to the accused.
Criminal procedure – Amendment of charge – Section 180(1) permits amendment of defective summonses, including those omitting essential particulars, provided amendment will not prejudice the accused; earlier obiter dictum to contrary effect disapproved. Criminal procedure – Postponement – Refusal of postponement after early amendment not prejudicial where defence had opportunity to recall witnesses and Crown evidence was overwhelming.
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20 November 1958 |
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Assault not proved, but circumstantial evidence and appellant’s conduct after arrest established theft; conviction upheld.
Criminal law – theft and robbery – assault not proved beyond reasonable doubt; conviction of theft sustained on circumstantial evidence and appellant’s post-arrest conduct (offer to return money) indicating consciousness of guilt; credibility assessment of eyewitness and medical evidence.
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17 November 1958 |
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Court upheld complainant’s identification corroborated by vehicle ownership/registration and convicted accused of robbery and attempted robbery.
Criminal law – Identification evidence – Necessity of careful scrutiny where accused challenges identification; corroboration may be furnished by independent facts (vehicle ownership and registration). Criminal law – Corroboration – Ownership and registration of vehicle used by attackers can corroborate complainant’s identification. Criminal procedure – Late applications to re-open case or seek retrial at sentencing stage are generally not entertained. Sentencing – Court may decline to take previous convictions into account.
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14 November 1958 |
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Accused convicted of murder; identification evidence accepted and extenuating circumstances found due to heated communal tensions.
Criminal law – identification evidence – discrepancies in testimony – credibility – murder – mental element: intent or foresight of grave risk – extenuating circumstances due to volatile communal atmosphere.
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11 November 1958 |
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A ministerial notice penalising machines 'of a similar make or type' exceeded statutory power and invalidated the conviction.
Administrative law – Delegated legislation – Ministerial power under statute to declare particular machines or makes/types to be lotteries – Validity of Government Notice using 'similar make or type' rather than naming or describing make/type; Statutory interpretation – meaning of 'so named or described' and 'similar'; Criminal law – invalid delegated declaration vitiates conviction based on that declaration.
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10 November 1958 |
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A delivery van altered with foldaway seats and windows is not a "motor car" for excise purposes.
Excise law – construction of "motor car" in tax item – ordinary meaning preferred to alleged trade meaning – altered delivery vans retain character as goods vehicles – question of "manufacture" not decided.
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6 November 1958 |
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Whether identification plus corroborative coincidences suffice to convict one accused while leaving reasonable doubt for the co‑accused.
Criminal law – Rape – Identification evidence: caution where parade identification fails; later recognition insufficient alone; corroboration by admissions, clothing and blood stains can be cumulative and decisive. Credibility assessment of interested witnesses; alibi and benefit of reasonable doubt.
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3 November 1958 |
| October 1958 |
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Whether a sale lacking clear boundary description is void for uncertainty — court found the agreement uncertain and allowed the appeal.
Sale of land – uncertainty of description – whether contract refers to definite boundaries or an indefinate area to be fixed later – interpretation by reference to on‑the‑ground demarcation and parties’ intentions – requirement of sufficient certainty for enforceable sale.
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2 October 1958 |
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Court convicted both accused of murder for arranging, committing and concealing the killing of a complainant.
Criminal law – murder proven despite advanced decomposition; admissibility of voluntary confessions; accomplice evidence requires caution and corroboration; liability of person who procures or pays for a killing; refusal of separation of trials
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2 October 1958 |
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The applicants' murder convictions, founded on an uncorroborated confession and unreliable witnesses, were set aside.
Criminal law – murder – conviction based on extrajudicial confession to a paramour and uncorroborated informer’s evidence – necessity of reliability and corroboration; inadmissible statements against co‑accused – misdirection and prejudice; setting aside unsafe convictions.
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2 October 1958 |
| September 1958 |
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A compromise reducing liabilities can reduce a year’s assessed trading loss when the balance of assessed loss is determined.
Tax — assessed loss — compromise with creditors reducing liabilities — section 11(3)(a)(ii) — reduction occurs when determining balance of assessed loss for carry‑forward — section 11(4)(a) (recoupment) not decided.
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30 September 1958 |
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Whether contradictions in witnesses' accounts made convictions under s.16(2)(a)(iii) unsafe and the meaning of 'entices, solicits or importunes'.
Immorality Act s.16(2)(a)(iii) — construction of 'entices, solicits or importunes' — covers serious proposal to have intercourse (not merely tentative suggestions); credibility and appellate review — when appellate court may or may not disturb magistrate's factual findings; alleged misdirection on cross‑examination — materiality test; sentence — not excessive given statutory maximum and antecedents.
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30 September 1958 |
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Identification and a preparatory-examination admission supported culpable homicide conviction; murder not proved due to lack of intent.
Criminal law — identification evidence — conflicting eyewitness accounts; weight and admissibility of statements made at preliminary examination under s.250; interpreter credibility; distinction between murder and culpable homicide where intention to kill not proved.
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30 September 1958 |
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Whether appellant proved assault on the balance of probabilities and whether the trial judge erred in assessing witness credibility.
Civil evidence — credibility — assessment of conflicting eyewitness accounts; improbability and inconsistencies in defence testimony; weight of medical injuries as corroboration; appellate review of trial credibility findings; when to remit for assessment of damages.
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30 September 1958 |
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Whether a single-witness, brief nighttime identification supported by possession of a screwdriver sufficed to sustain conviction.
Criminal law – Identification evidence – Single-witness identification – Adequacy of opportunity, lighting and distance; need for cautious scrutiny. Criminal law – Corroboration – Possession of suspected implement and physical marks as corroborative circumstances. Evidence – When in loco inspection/reconstruction may be necessary to test identification evidence.
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30 September 1958 |
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Whether similar, peculiar acts by separate accomplices can lawfully corroborate each other to support convictions.
Criminal law – Immorality Act – accomplice evidence requires corroboration – similar-fact evidence admissible to corroborate accomplice testimony where acts bear peculiar, striking similarities – corroboration not limited to proof aliunde; appellate review of magistrate’s credibility findings.
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29 September 1958 |
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Whether an architect’s certificate and the owner’s oral promise created a direct contractual obligation to pay the electrician.
Contract law; construction contracts — clause empowering architect to nominate specialists; whether architect’s acceptance creates privity between building owner and specialist; nomination versus direct contract; admissibility and weight of architect’s certificate and oral undertakings; appellate interference with trial court credibility findings.
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26 September 1958 |
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Use of "Rising Sun" did not infringe the registered mark "Ray-son" absent proof of a probability of deception.
Trade-mark infringement — comparison of marks by appearance, sound and idea — likelihood or probability of deception required — purchaser characteristics (illiteracy, pronunciation) relevant but must be proved — onus on proprietor to prove probability of deception.
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26 September 1958 |
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Section 7(2) obliges acquisition where expropriation leaves owner with less than one acre, irrespective of title units.
Expropriation – Railway Expropriation Act 37 of 1955 s 7(2) – meaning of "cut through and divided"; words "across or on" broaden scope beyond intersection; protection where owner left with piece < 1 acre; "in one block" construed irrespective of registered title units; owner entitled to require acquisition of remainder
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26 September 1958 |
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Trial court’s careful credibility and identification findings (clothing/language considered) were reasonable; appeal dismissed.
Criminal law – Identification evidence – assessment of eyewitness credibility – relevance of clothing and language to recognition. Appellate review – deference to trial judge’s findings on credibility and factual issues. Criminal procedure – calling additional witnesses and making findings on contested factual matters.
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26 September 1958 |
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Whether an amendment authorising death for robbery applies retrospectively to offences committed before its promulgation.
Criminal law — Sentencing and retrospective operation of penal statutes — Amendments increasing penalties not applied to offences committed before promulgation absent clear legislative intent; sentencing is substantive consequence measured by law at time of offence. Evidence — Confession — Admissibility determined by voluntariness assessed on totality of evidence.
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24 September 1958 |
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Accused No.1 convicted for housebreaking, theft and robbery; accused No.2 convicted for housebreaking but acquitted of robbery.
Criminal law – housebreaking with intent to steal and theft – robbery – identification and accomplice evidence – possession of stolen property as corroboration – doctrine of common purpose – benefit of doubt on mental state regarding subsequent robbery.
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24 September 1958 |
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First appellant’s conviction upheld by vehicle corroboration; second appellant’s conviction set aside due to reasonable doubt over identification.
Criminal law – Identification evidence – Single identifying witness without parade – admissibility and sufficiency. Criminal law – Circumstantial corroboration – vehicle description, registration number and warm engine. Criminal law – Assessment of alibi and witness credibility. Criminal procedure – Failure to hold identification parade not necessarily fatal but may affect safety of conviction.
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23 September 1958 |
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Fingerprint evidence and possession of stolen property established appellant’s participation in a brutal rape and robbery; appeal dismissed.
Criminal law – circumstantial evidence – fingerprint identification corroborated by possession of stolen property – proof beyond reasonable doubt of participation in burglary, rape and robbery; admissibility and weight of extra‑judicial statements; alleged trial irregularities not resulting in failure of justice; death sentence competent for rape
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22 September 1958 |
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Appellate court upholds murder conviction, finding Crown witnesses credible and no evidence of provocation or extenuating circumstances.
Criminal law – murder – credibility assessment of Crown witnesses versus accused’s self-defence claim – absence of extenuating circumstances – Crown’s duty to call witnesses – refusal to speculate on unproven provocation.
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18 September 1958 |
