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Citation
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Judgment date
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| December 1972 |
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Condonation refused where delays were inordinate and prospects of success weak; possession includes witting custody, intent to hand to police mitigates.
Criminal procedure — condonation for late lodging of record — inordinate, unexplained delay by appellant’s attorneys — condonation requires strong prospects of success. Statutory interpretation — "possession" in s.2(1) of Act 37 of 1967 — held to penalise witting physical detention, custody or control; State not required to prove intention to hold for own use or benefit. Defence of temporary custody to hand to police — not a complete defence but relevant to mitigation of sentence.
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28 December 1972 |
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Section 18 of the Hire‑Purchase Act bars use of civil imprisonment, garnishee or section 65 remedies to enforce both hire‑purchase debts and attendant judgment costs.
Hire‑Purchase Act s.18 – interpretation – whether prohibition on civil imprisonment, garnishee and s.65 orders to enforce hire‑purchase liabilities includes judgment costs; "judgment creditor" includes costs; legislative purpose to protect buyer; prior s.69(4) supports inclusive construction.
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4 December 1972 |
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A discretionary statutory refusal to grant an entry/residence permit is reviewable but not arbitrary where valid policy, illegality and security considerations were considered.
Administrative law – discretionary statutory power to grant/withhold entry permits – scope of judicial review for improper exercise, arbitrariness or failure to exercise discretion; audi alteram partem – when right to be heard is not required where no antecedent legal right exists; competence of Executive Committee to exercise powers vested in ‘Administrator’.
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1 December 1972 |
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1 December 1972 |
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Whether the appellant’s close‑range shooting amounted to murder despite claiming he only aimed to frighten and merits mitigation.
Criminal law – Murder – mens rea – firing multiple close‑range shots at a fleeing person: subjective foresight/recklessness supports murder conviction. Credibility – Appellate review where trial court made limited misstatements: minor errors do not necessarily require reversal if overall findings supported by evidence. Arrest/trespass – owner‑authorised arrest not applicable where person was not a trespasser. Sentencing – mitigating circumstances (no premeditation, confusion, age/role of co‑participant) may justify partial suspension of sentence.
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1 December 1972 |
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Employee failed to prove he was on duty when injured; appeal and cross-appeal dismissed with costs.
Employment contract – alleged term to pay full remuneration during disability; alternatively insurance to indemnify – proof required; Course and scope of employment – whether employee was on duty when injured; Credibility and evidentiary weight – conflicts in witness evidence; Insurer payment – not necessarily an admission of employer’s liability; Counter-claim dependent on failure of primary claim.
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1 December 1972 |
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An appellate court will only reduce a long cumulative sentence where there is misdirection or a striking disparity; 25 years was not excessive here.
Criminal law – sentencing – cumulative sentences – whether total of 15 and 10 years (25 years) excessive; appellate review of sentence – interference only for misdirection or striking disparity; practice concerning long terms (25 years) not an absolute maximum; consideration of antecedents and slight mitigation in sentencing.
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1 December 1972 |
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Ouster clause in deportation statute bars judicial review absent fraud, manifest lack of jurisdiction or similar exceptional circumstances.
Administrative law – deportation – Undesirables Removal Proclamation 1920 s.1(1)(a) – ouster clause s.1(3) excluding court jurisdiction – limited judicial interference only for fraud, manifest absence of jurisdiction or similar exceptional circumstances. Natural justice – audi alteram partem – does not automatically apply to deportation under s.1(1)(a) where decision involves state/confidential interests. Statutory interpretation – form of deportation order directory where no prejudice shown. Constitutional/legislative competence – Administrator‑in‑Executive Committee validly authorized to direct issuance of orders; no repugnancy established with immigration or Supreme Court statutes.
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1 December 1972 |
| November 1972 |
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A truck driver’s delay in reducing speed and moving left established negligence and causation; appeal dismissed.
Motor-vehicle negligence – articulated rig on or over centre line – duty to reduce speed and move left on observing oncoming vehicle – reliance on assumption other driver will give way limited – causation established where timely movement would probably have avoided collision; evidentiary weight of measurements, photographs and tachograph data.
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30 November 1972 |
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Whether monthly payments tied to share ownership were taxable to the seller or effectively ceded to the purchaser before accrual.
• Tax law – definition of gross income – "received by or accrued to" – effect of antecedent cession of right to future payments.
• Characterisation of payments – remuneration for services versus return on investment (fruits of share ownership).
• Contract/cession – effectiveness of cession of rights to future payments despite company’s non-recognition and continued payment to transferor.
• Beneficial ownership – consequences of sale where company refuses share transfer but continues to pay amounts tied to shareholding.
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30 November 1972 |
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Whether post‑accident payments by a former employer reduce damages — majority: gratuitous payments (or where claimant lacked capacity) are not deductible; dissent: valid wages are deductible.
Delict — motor collision — liability established for tractor driver; contributory negligence not proved. Collateral‑source rule — deductibility of post‑accident payments by former employer — where payments are essentially gratuitous or where injured lacks contractual capacity they are res inter alios acta and not deductible; where a valid contract existed and payments are for services they reduce damages. Majority and dissenting views considered. |
29 November 1972 |
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Whether a trial judge’s premature judgment and whether a voetstoots clause excluded an implied fitness-for-purpose warranty.
Civil procedure – trial judge directing written addresses and giving judgment without receiving opposing argument – potential vitiating irregularity; appellate re-hearing of merits permitted. Contract construction – "erected price"/"after erection" and clause excluding warranties (voetstoots) – obligation limited to proper erection, not fitness for a particular purpose. Onus and evidence – supplier proved proper erection by successful test-bakings and remedial work. Cancellation – no proved mutual agreement to cancel.
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29 November 1972 |
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Appeal dismissed: no duty to order psychiatric observation; judge need not recuse after in‑court threat; conviction upheld.
Criminal law — Mental disorder — s.28/29 Mental Disorders Act and s.182 Criminal Procedure Act — 'appears' requires reasonable basis for inquiry/observation; no committal if medical and other evidence do not raise reasonable doubt about fitness or sanity. Judicial impartiality — attempted in‑court attack by accused — judge need not recuse where objective assessment shows no real likelihood of bias and judge can act impartially. Disclosure — previous inconsistent police statement — not every inconsistency requires proactive disclosure by prosecutor unless materially prejudicial. Sentencing/extenuation — dagga use and alleged psychopathy do not automatically amount to legal insanity or mitigation.
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28 November 1972 |
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Leave to appeal requires a reasonable prospect appellate court may differ; trial court’s convictions for possession of diamonds upheld.
Criminal procedure – leave to appeal – correct test is whether there is a reasonable prospect that the Appellate Court may take a different view (Kuzwayo/Muller), not a requirement that it will; Evidence – assessment of credibility and circumstantial evidence – convictions for possession/receipt of diamonds upheld; Appellate review – trial court’s factual findings entitled to deference where properly evaluated.
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24 November 1972 |
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Court upheld large general damages but reduced future earnings award because plaintiff likely would have left paid employment to marry.
• Delict — personal injury: assessment of general damages for pain, suffering, impairment and loss of amenities and marriage prospects.• Future loss of earnings: need to prove, on balance of probabilities, duration of paid employment; marriage contingency may limit future‑earnings claim.• Loss of marriage prospects: includes material benefits of marriage (maintenance, home, security) as well as non‑material losses.• Expert medical evidence: appellate court will not lightly disturb trial judge’s factual findings where medical evidence supports prognosis.• Appeal — interference with discretionary quantum: high but not excessive awards will be upheld absent clear error.
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23 November 1972 |
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Psychiatric injury caused by negligent driving is recoverable and constitutes "bodily injury" under section 11(1) when foreseeable.
• Delict – psychiatric/nervous injury – recoverability where no ordinary physical injury – reasonable foreseeability governs liability. • Statutory interpretation – "bodily injury" in s.11(1)(a) includes brain/nervous-system (psychiatric) injury. • Negligence – foreseeability of general nature of harm sufficient; witnessing death does not automatically bar recovery. • Motor-vehicle insurance – insurer liable under Act 29 of 1942 for psychiatric injury caused by insured driver’s negligence.
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20 November 1972 |
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War-pensions statute bars common-law claims for damages in respect of a volunteer’s disablement or death.
Defence Act s145(1)(a) – applicability to Citizen Force members injured while conveyed in connection with training; s145(2) – application of War Pensions Act mutatis mutandis; War Pensions Act s37 – broad bar on actions at law against the State for compensation "in respect of" a volunteer’s disablement or death (including common-law damages); statutory scheme substitutes administrative compensation for delictual claims.
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16 November 1972 |
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Transfer and stamp duty assessed on combined land and completion cost when completion is integral to acquisition.
Transfer duty — valuation — section 6(1)(c) of Transfer Duty Act — additional consideration "in respect of or in connection with" acquisition includes payments for completion of house where completion is integral to acquisition; Stamp duty — payable on the higher value where transfer-duty valuation includes additional consideration.
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16 November 1972 |
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Whether a person classified as Indian should be reclassified as a Cape Malay under the Population Registration framework.
Population Registration Act 1950 / Proclamation 123 (1967) – racial sub-groups – distinction between "indeed" a member and "usually regarded as" a member – Cape Malay v Indian classification. Burden of proof – s.19(1A) – claimant must prove claimed classification beyond reasonable doubt. Presumption from census/identity declarations – rebuttal by overwhelming evidence. Use of sociological and community evidence (mosque leaders, social association) in racial-classification determinations.
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16 November 1972 |
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A purchaser with effective contractual power to obtain transfer is an "owner" under the Act's frozen-area pre-emption rules.
Community Development Act – frozen-area notification – definition of "owner" – includes persons lawfully entitled and able to effect transfer (e.g., purchaser under contract) – ejusdem generis in definition not restrictive – pre-emption/arbitration rights enforceable.
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14 November 1972 |
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Where parties fail to agree price for extra quarrying work, contractor is entitled to reasonable remuneration; owner's breach negates loss claim.
Contract law – mining contract – implied term for reasonable remuneration where parties fail to agree price on increased overburden; clause for payment on termination includes preparatory overburden removal; assessment by reference to prevailing excavation rates; owner’s failure to procure explosives (clause 16) defeats counterclaim for shortfall; appellate deference to trial credibility and measurement findings.
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13 November 1972 |
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Appellants' silence and corroborating circumstances supported convictions for burglary and theft; appeal dismissed.
Criminal law – housebreaking with intent to steal and theft – sufficiency of evidence; accused's failure to testify; credibility of principal witness; joint enterprise — admissibility of co-accused's statements; hearsay — non-prejudicial error.
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13 November 1972 |
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Appellate court affirms murder conviction where appellant forcibly lodged cotton wool in victim’s throat, causing fatal asphyxia.
Criminal law – Murder by asphyxia – foreign object (cotton wool) thrust into pharynx – dolus eventualis established; Sexual offences – rape inferred from injuries and absence of consent; Expert evidence – remote possibility of self‑ingestion insufficient to upset trial findings; Appeal – appellate court defers to trial credibility and sentencing discretion where no misdirection shown.
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13 November 1972 |
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Court upheld murder convictions despite certain inadmissible remarks, finding identification and other admissible evidence proved guilt beyond reasonable doubt.
Criminal procedure – power to call or recall witnesses after close of case; admissibility and prejudice of collateral evidence; identification evidence – credibility and proof beyond reasonable doubt; murder versus culpable homicide; appellate assessment of irregularity under s 364.
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8 November 1972 |
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Appellate court upheld trial credibility findings, dismissing insurer's appeal and awarding costs after finding insured driver's negligence caused the collision.
Civil procedure – assessment of credibility and probabilities in negligence claims – appellate review limited where trial judge’s factual findings justified. Onus of proof – balance of probabilities – judge’s evaluation of reliability not a misdirection. Evidence – weight of expert opinion from vehicle damage – limitations and imponderables in reconstructing collisions.
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7 November 1972 |
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Trial court’s credibility and finding of common purpose/dolus eventualis in murder upheld; appeals dismissed.
Criminal law – murder – credibility of eyewitnesses – medical evidence of stab and blunt/sharp trauma – common purpose and dolus eventualis – appellate review of trial court’s findings.
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7 November 1972 |
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Appellant’s plausible explanation and prosecution’s failure to call a key witness defeated an inference of guilt; conviction set aside.
Criminal law – recent possession – evidential inference only; onus remains on State to disprove reasonable innocent explanation. Criminal procedure – misdirection by trial court regarding non-existent duty to record customer details when cashing cheques. Evidence – mistaken identification and absence of demeanour findings not automatically fatal; credibility assessed on totality. Prosecution duty – failure to call obvious material witness may fatally weaken case.
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7 November 1972 |
| October 1972 |
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The respondent entitled to specific performance; the applicant’s cancellation for delayed banker’s guarantee was invalid.
Sale of land — banker's guarantee clause — time not of the essence — notice of rescission and mora — anticipatory repudiation — total inability to perform — validity and sufficiency of banker’s guarantees — specific performance remedy.
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31 October 1972 |
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Written sale agreement may be rectified to reflect parties' common intention where agent's fraud caused incorrect price; late further evidence refused.
Contract law – Rectification of written instruments – Whether instrument may be rectified to reflect parties' common intention – Rectification available for mutual mistake and for non-conformance caused by fraud. Evidence – Use of prior negotiations and extrinsic evidence to establish common intention where no antecedent formal contract exists. Civil procedure – Further evidence on appeal (s.22(a) Supreme Court Act) – late evidence refused where witness was available at trial and no exceptional circumstances shown. Equity/estoppel – Exceptio doli and preventing party benefiting from instrument procured by agent’s fraud.
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17 October 1972 |
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Whether the appellant had murderous intent and whether intoxication or provocation mitigated the sentence.
Murder – proof of intent; mitigation – intoxication and provocation/self‑defence as relevant to moral blameworthiness; appellate re‑assessment of sentence where trial court misapprehended material facts.
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5 October 1972 |
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Appellant’s rape and murder convictions and death sentence affirmed on credible eyewitness and medical evidence.
Criminal law – Rape and murder – evaluation of eyewitness and medical evidence; confession/admission; contradictions in accused’s account; causation of death; proof of intent (opset); absence of extenuating circumstances; appeal – standards for overturning convictions.
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5 October 1972 |
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An appellant cannot pursue on appeal a version or amendment expressly abandoned by counsel at trial; leave in forma pauperis refused.
Civil procedure – leave to appeal in forma pauperis; abandonment of case at trial – amendment of declaration – appellant cannot on appeal rely on an alternative case expressly abandoned in trial court; negligence – evaluation of driver’s actions when reaction time limited.
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2 October 1972 |
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Driver’s failure to give adequate warning before a long trailer’s turn makes respondent liable; appellant not contributorily negligent.
Negligence — long integrated vehicle (horse and trailer) turning — driver’s duty to warn pedestrians and take active precautions — credibility assessment of driver versus independent witness — reliance on gatekeeper’s routine ineffective — no contributory negligence by pedestrian.
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2 October 1972 |
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Appellate court upheld convictions and death sentence for a juvenile where trial judge properly exercised sentencing discretion.
* Criminal law – murder and assault with intent to murder – intent established by stealing and deliberately firing a loaded firearm; evidence supports convictions. Sentencing – death sentence on juvenile – statutory exception and discretionary exercise where accused under 18; trial judge’s duty to consider extenuating circumstances. Appellate review – will not substitute its discretion for trial court; interference only where misdirection, capricious exercise, or disturbingly inappropriate sentence. Psychiatric observations – may inform consideration but do not automatically constitute extenuation. |
2 October 1972 |
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Appellate court quashed one unsafe rape conviction, upheld a capital rape sentence, and reduced excessive cumulative imprisonment terms.
Criminal law – identification evidence – factors affecting reliability (lighting, opportunity, suggestibility, corroboration) – conviction set aside where identification unsafe; Criminal procedure – appeal against sentence – appellate interference only for misdirection, irregularity or disturbingly inappropriate sentence; Sentencing – cumulative sentences – need to consider aggregate effect and order concurrent terms where appropriate; Capital sentence – death for exceptionally grave rape upheld where discretion properly exercised.
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2 October 1972 |
| September 1972 |
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A court order under section 203 vests a foreign company’s lease rights in a new South African company despite contractual prohibitions on assignment.
Companies Act s203 — court‑ordered transfer/vesting of foreign company’s business, rights and obligations to a South African company — effect on contractual prohibitions against assignment and on third‑party consent rights; lease law — whether statutory vesting equals conventional cession/assignment enabling lessor’s cancellation; suretyship clause interpretation — guarantee fulfilment and lease continuity.
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29 September 1972 |
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An insurer’s appeal against an excessive globular damages award was upheld and the award reduced to R4,042.68.
Motor-vehicle accident — assessment of damages — globular award — appellate interference with quantum — future medical expenses, future loss of earnings, pain and suffering — medical evidence on prognosis and effect on work capacity.
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29 September 1972 |
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Whether voluntary intoxication negates intent or mitigates murder conviction; court upholds conviction.
Criminal law – murder – volunt ary intoxication – whether drunkenness negates dolus or constitutes mitigating circumstance – evaluation of circumstantial and forensic evidence and credibility of accused’s statements.
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29 September 1972 |
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Whether the appellant's intoxication constituted a mitigating circumstance warranting substitution of death with imprisonment.
Criminal law – murder – mitigating circumstances – effect of voluntary intoxication on moral blameworthiness and sentencing; appellate review of trial court’s failure to make essential factual findings; safety of conviction despite contradictory witness detail.
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29 September 1972 |
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Appellant convicted of murder under common purpose for foreseeably assisting an accomplice who used lethal force.
Criminal law – Common purpose – liability for murder where one accomplice inflicts fatal injury; foreseeability of lethal violence and continued participation as basis for guilt; identification and possession/sale of stolen property corroborating confession; admissibility and probative value of confession; robbery with aggravating circumstances – death sentence upheld.
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29 September 1972 |
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Where an endowment condition under the old Ordinance was contingent on disposal, the new Ordinance could not be used to make it payable when ownership was retained.
Town-planning — Endowment conditions — Contingent liability under old Ordinance payable on disposal — New Ordinance s.74(5) requires pre-construction payment only where liability already imposed — s.97(2) cannot be read to convert contingent disposal-based obligation into unconditional liability without clear legislative language.
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29 September 1972 |
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Accused failed to prove mitigating circumstances; trial court’s rejection of his version and death sentence affirmed.
Criminal law – murder – mitigation of sentence – burden on accused to prove mitigating circumstances on a balance of probabilities – limited appellate review of trial court’s factual findings on mitigation – intoxication and provocation assessed on evidence.
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28 September 1972 |
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Where police evidence is contradictory, a confession alone cannot sustain conviction if voluntariness is not proved beyond reasonable doubt.
Criminal procedure – admissibility of confessions – s.244(1) first proviso – confession alone as sole incriminating evidence requires special caution. Confession evidence – voluntariness – Court must analyse all contacts from police custody to magistrate, weighing contradictions and omissions. Police conduct – authority and potential influence on weak or ignorant accused – prolonged questioning and conflicting police accounts may create reasonable possibility of undue influence. Trial-within-a-trial – necessity of thorough inquiry where voluntariness disputed; inadmissible confession requires acquittal if it is sole evidence.
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26 September 1972 |
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Appeal upheld: convictions set aside where police‑based identifications and credibility findings were unreliable and unsafe.
Criminal appeal — credibility assessment of accused versus investigating officer — alleged coerced ‘identification’ by police — failure to call available police witnesses — alibi, dates and distances affecting probability of guilt — convictions unsafe and set aside.
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22 September 1972 |
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Appeal succeeds: twelve‑year sentence for fatal assault reduced to seven years due to mitigation and excessive original punishment.
Criminal law – Sentencing – Excessive sentence – appellate interference where sentence exceeds bounds of reasonable punishment; mitigation by intoxication, provocation and youth in culpable homicide; prior juvenile conviction and risk to society.
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22 September 1972 |
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Appeal upholds murder conviction but reduces sentence, finding trial court erred in credibility assessment and overstated moral culpability.
Criminal law — murder vs private defence — credibility assessment of witnesses — indirect intent (dolus eventualis) — appellate interference with sentence where moral culpability mitigates punishment.
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22 September 1972 |
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Applicant’s attack on composition and financier’s contract rejected; trustees ordered to pay costs personally.
Insolvency law — composition accepted by creditors — s.119(7) Insolvency Act proviso directory; substantial compliance suffices. Procedure — leave to appeal under s.21(2)/(4) Supreme Court Act — security for costs governed by statute not Rule 6(2). Contract — financier’s performance and non-repudiation; cancellation not justified. Locus standi — trustees without authority: appropriate to order costs de bonis propriis. Costs — condonation for late filing of cross-appeal documents may be granted in discretion.
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21 September 1972 |
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Appellate court finds warrant valid, no revenge motive, and police officers not liable; plaintiff’s appeals dismissed.
Criminal procedure – arrest-warrant – reasonable grounds for suspicion; procurement in fraudem legis – requisites for invalidity; form requirements of warrant and effect of clerical error; territorial/‘local prosecutor’ competence; accessio and proof required to convert movables into part of land; vicarious liability of State for police acts; amendment of pleadings and costs consequences.
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19 September 1972 |
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Receiver under court‑sanctioned compromise must consider Insolvency Act s.26(2) when admitting or rejecting creditor claims.
Companies Act — Compromise sanctioned by court — Receiver’s powers under clause conferring "same powers mutatis mutandis as Liquidator" — construction limited to admission/rejection of claims; Insolvency Act s.26(2) (disposition not made for value) applicable to proof of claims; limited declaratory relief appropriate where facts insufficient to set aside suretyship.
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18 September 1972 |
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Appeals dismissed: confession admissible; circumstantial evidence proved participation; no sufficient mitigation from youth or intoxication.
Criminal law – confession – voluntariness and admissibility of statement before magistrate – effect of alleged police threats or inducements; Circumstantial evidence – presence, pointing out of scene, distribution of injuries – inference of participation and common purpose; Sentence – youth and intoxication considered but not mitigating to avoid death penalty.
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14 September 1972 |
