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Citation
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Judgment date
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| December 1973 |
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Appeal dismissed: appellant failed to prove collision liability; Rule 13 joinder valid and costs order proper.
Civil evidence – assessment of mutually destructive eyewitness accounts – absolution from instance – balance of probabilities; Motor collision – probative value of vehicle damage and photographs without expert evidence; Civil procedure – Rule 13 third‑party joinder valid and not ultra vires; Costs – court’s jurisdiction and discretion to award third‑party costs.
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3 December 1973 |
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Whether a bank's undertaking to pay a "final judgment against" a debtor includes a judgment against the debtor's trustee after sequestration.
Contract construction — meaning of "final judgment against [named person]" — includes judgment against successor (trustee) after sequestration; admissibility of surrounding circumstances to ascertain intention; sequestration does not terminate pending proceedings; trustee as representative/successor in insolvency.
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3 December 1973 |
| November 1973 |
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The appellant could not avoid the Rents Act by reconstruction unless premises became a completely new building.
Rents Act — s.10(1)(a) and s.33(1)(f) — change of identity by reconstruction — proviso construed as part of definition of "controlled premises" — existing rent‑board determination preserved unless premises are a completely new building — lessor's remedy is application to rent board (s.8/11).
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30 November 1973 |
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Employer held vicariously liable where transporting a known escapee without adequate precautions foreseeably caused third‑party loss.
Delict — Negligence — Employer’s vicarious liability for employees’ failure to restrain a known escapee — Test of reasonable foreseeability — Precautionary measures when transporting prisoners in ordinary vehicles.
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30 November 1973 |
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The applicant may obtain declaratory relief to determine a contingent right to indemnity; court must exercise discretion judicially.
Insurance — declaratory relief — contingent right to indemnity under motor policy — insurer's repudiation — court's discretion to grant declarations — policy condition requiring insurer's written consent to settlement — condonation for late appeal filings.
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30 November 1973 |
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Whether the applicant's sentence for repeated defamatory libels was excessive and a belated apology mitigatory.
Criminal law – Libel under s.1 of Act 46 of 1882 – Sentencing discretion – appellate interference only for misdirection, irregularity or manifest disparity – repeated defamatory publications and prior conviction aggravating – belated apology after sentence not judicially mitigatory; executive clemency available.
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30 November 1973 |
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Whether "inferior" in a settlement clause barred marketing "Selected Paarl Perle"; court held it barred such comparative puffery.
Contract interpretation – settlement clause restricting use of words "that suggest the other product is inferior"; meaning of "inferior" (comparative and absolute senses); trade description/advertising – whether "Selected" and "The Champagne of Paarl Perles" constitute prohibited comparative praise and breach of settlement; partial restraint of trade – reciprocal label restrictions.
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30 November 1973 |
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Statutory illegality under the Gambling Act prevents recovery on a cheque negotiated to a gaming house for gambling chips.
Gambling Act s 6(1) — prohibition on permitting games of chance for stakes — negotiation of cheque for gambling chips — statutory illegality permeating negotiable instrument — holder in due course — unenforceability and public policy — sufficiency of pleading and evidence to raise statutory illegality.
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30 November 1973 |
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Liquidators entitled to progress payment; government’s contractual deduction (set-off) rights could not be asserted after liquidation.
Contract law – construction of contractual deduction clauses – rights of deduction vs. set-off – effect of liquidation on contractual set-off – separate executory contracts – liquidator’s entitlement to progress payments.
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29 November 1973 |
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Appellate Division lacked jurisdiction to hear an appeal against sentence where the provincial division had not decided on sentence.
Criminal procedure — Appeals to Appellate Division — jurisdictional limits where provincial division dealt only with conviction — defective notice of appeal cannot be treated as appeal against sentence — Appellate Division cannot create jurisdiction by toeskietlikheid — remedy: fresh notice and condonation.
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29 November 1973 |
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Whether the applicant proved the respondent had a reasonable opportunity to avoid collision after the applicant's negligent crossing.
Motor vehicle collision — negligence — overtaking to pass parked vehicle near a blind rise — onus on plaintiff to prove other driver had reasonable opportunity to avoid collision — police plan and brake marks; credibility and appellate review.
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29 November 1973 |
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Section 2(2) presumption applies where State proves attempted delivery of false documents to terrorists and the accused fails to rebut it.
Terrorism Act s.2(2) — statutory presumption — requirements for invocation: (a) proof of commission or attempt of the act alleged; (b) that the act was likely to have results specified in s.2(2) — distinction from cases where knowledge of contents is implicit; objective test for likelihood of result; accused’s failure to rebut onus.
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27 November 1973 |
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A cession made in bad faith to defeat a debtor’s reconvention binds the cessionary to suffer that reconvention.
Roman‑Dutch law – cession of claims – Digest D.3.3.34 – cession in fraudem eorum qui invicem agere vellent – where cession deprives debtor of reconvention and cessionary is party to bad faith, cessionary must suffer reconvention – rule received into South African law – pleading sufficiency; exception dismissed.
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27 November 1973 |
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Whether eyewitness identification and mens rea supported the murder conviction and whether the 15-year sentence was excessive.
Criminal law — Murder — Eyewitness identification and corroboration — Mens rea (dolus/dolus eventualis) — Sentence review — Mitigating circumstances; reduction of excessive sentence.
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22 November 1973 |
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Whether purported sales were sham exchanges to evade transfer duty and whether the court could grant declaratory relief on duty liability.
Tax law – Transfer duty (hereregte) – Alleged sham sale contracts constituting an exchange of properties to evade duty – Basis for calculating duty where declared values absent – Court’s power to grant declaratory relief on existing, future or contingent rights.
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19 November 1973 |
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A municipal appointment of an auctioneer to conduct erven auctions is a services contract, not a "contract for execution of work" requiring tenders.
Municipal law — Tender requirements — Meaning of "a contract for the execution of any work" in s.143(1) — Distinction between contracts for works (locatio-conductio operis) and for rendering services — Auctioneer appointment as services contract — No tender required.
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15 November 1973 |
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A shareholders' agreement did not bar majority shareholders from removing nominee directors under Companies Act s.69(1).
Company law – shareholders' voting rights – pre‑incorporation shareholders' agreement – nominee directors – whether agreement restricts removability or permits implication of objectively justified cause – Companies Act s.69(1) and article 91 – interim interdict.
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13 November 1973 |
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Whether placing a stationary vehicle and a warning triangle on a blind bend constituted adequate precautions to avoid liability.
Road traffic — obstruction on blind bend — adequacy of warning triangle and other precautions — driver’s duty to move vehicle and warn approaching traffic. Negligence — credibility of witness evidence — distances and visibility on accident reconstruction. Contributory negligence and apportionment — evaluation under Apportionment of Damages Act (Wet op Verdeling van Skadevergoeding) s.2(8). Relief — joint and several liability and division of damages by percentage.
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13 November 1973 |
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Appeal dismissed: trial court’s finding of undue influence and cancellation of mortgage bond upheld.
Undue influence — cancellation of mortgage bond — burden of proof on person alleging undue influence — relevance of alleged indebtedness — appellate deference to trial judge’s credibility findings — failure to call evidence and unexplained books as adverse inference.
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13 November 1973 |
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Conviction for purchasing uncut diamonds upheld where an in-country agreement existed despite intended offshore payment and delivery.
Precious Stones Act – s.84(1)(a) – buying/dealing in rough diamonds without licence – police "trap" operations – territorial application where agreement concluded in Republic despite intended offshore delivery – mens rea by culpa – sentence discretion; currency conversion not irregular.
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12 November 1973 |
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An industrial agreement expanding the industry's scope beyond its registration is ultra vires and, where inseverable, invalid in whole.
Industrial law – ultra vires – definition of "Building Industry" exceeding registration certificate – industrial agreement viewed as subordinate legislation – objective severability test (Chesterfield House) – invalidity of composite measure where remainder cannot carry main object.
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8 November 1973 |
| September 1973 |
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"Subject to a Building Society Loan" meant a loan for the balance outstanding, excusing purchaser’s non‑payment when genuine loan attempts failed.
Contract interpretation – hire-purchase agreement – meaning of "subject to a Building Society Loan" – suspensive condition excusing payment of balance outstanding; clause 11 not a warranty of future financial ability; interplay of clauses 2, 13 and 19; cancellation and forfeiture only permissible on established breach.
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28 September 1973 |
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Culpa is an element the State must prove beyond reasonable doubt; Mandrax combined with alcohol can satisfy "drug having a narcotic effect."
Criminal law – statutory offence of driving under influence – mens rea/culpa remains an element – prosecution must prove culpa beyond reasonable doubt; evidential burden on accused to raise reasonable doubt only. Statutory construction – "drug having a narcotic effect" interpreted broadly to include hypnotic drugs (e.g., Mandrax/metaqualone) and combined effects with alcohol. Evidence – eyewitness, police and medical evidence sufficient to prove driving under influence.
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28 September 1973 |
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The appellant's provocation and lack of proven premeditation warranted substituting the death sentence with 15 years' imprisonment.
Criminal law — Murder — Sentence — Appeal against death sentence — Whether premeditation established from possession of petrol — Whether provocation/sudden passion constituted mitigating circumstances — Prior convictions and appropriate punishment.
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28 September 1973 |
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28 September 1973 |
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Whether the supplier proved an unconditional sale when payment was conditional on successful experimental fumigation.
Contract law — interpretation of multipart commercial arrangement — conditional supply linked to successful experimental fumigation; intermediary/cooperative role — whether created independent obligations; burden of proof and effect of ambiguous pleadings.
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28 September 1973 |
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Appellant failed to prove driver negligence on the balance of probabilities; appeal dismissed with costs.
Motor-vehicle collision — Civil burden of proof (balance of probabilities) — Conflicting witness evidence and absence of objective physical evidence — Credibility and reliability of distance/time estimates — Lookout duty and negligence.
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28 September 1973 |
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Trial court properly rejected improbable explanations and convicting inferences from fingerprints, postmarks and conduct justified dismissal of appeals.
Criminal law – Distribution of subversive literature – Circumstantial evidence (fingerprints, postmarks, typing and envelopes) – Credibility assessment of accused’s explanations – Rejection of improbable defences; Evidence – Weight of conduct and evasive cross-examination answers; Distribution of political pamphlets – intention to disseminate versus mere showing for information.
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28 September 1973 |
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Convictions set aside where knowledge and intent for terrorism were not proved and statutory presumption was misapplied.
Terrorism Act s.2(1)(a) and s.2(2) – application of statutory presumption of intent – presumption only operates where the prosecution has proved the act alleged (including knowledge/factual foundation) – proof of mere physical acts (posting/handing letters) without knowledge does not trigger presumption; appellate review of trial judge’s inferences and probabilities.
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28 September 1973 |
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Applicant refused admission to the Bar for conflict of interest, failure to disclose settlement, and dishonest conduct.
Admission to the Bar; fitness and propriety; conflict of interest between clients; procuring release/indemnity prejudicial to a client; failure to disclose settlement; breach of utmost good faith; credibility of oral testimony; appellate review of discretionary factual findings.
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28 September 1973 |
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Whether estoppel or the exceptio doli can bar a s81 Bills of Exchange Act claim where cheques were crossed "not negotiable" and fraud occurred.
Bills of Exchange Act s80-81 – crossed cheque marked "not negotiable" – effect on title and estoppel; estoppel by silence/failure to warn where actual or imputed knowledge exists; exceptio doli not available to defeat s81 recovery; striking out defective pleas under Rules of Court.
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28 September 1973 |
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Whether trial evidence cured a defective charge and proved the appellant used the motorcycle without owner’s consent.
Criminal law — Motor vehicle — Use/drive without owner’s consent — Statutory offence (s.141(2)) — Indictment omission cured by s.179 bis when trial evidence proves omitted element — de minimis non curat lex and bona fide/mistake defences considered and rejected.
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28 September 1973 |
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Driver negligent turning into traffic; injured child not contributorily negligent; appeal allowed and R10,000 awarded.
Motor‑vehicle negligence — credibility of witnesses — impropriety of trial judge’s extrajudicial commendation of witness; driver’s duty when turning from garage exit into heavy traffic; foreseeability of pedestrians stepping from obscured pavement; contributory negligence of child.
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28 September 1973 |
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Appellate court upheld rape conviction, finding complainant credible and sentence not unduly light.
Criminal law – Rape – Credibility of complainant – Unsigned/unsworn statement – Weight of police evidence – Proof of lack of consent – Appellate interference with sentencing (aggravating vs mitigating factors).
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28 September 1973 |
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Political criticism in an election speech and newspaper report did not constitute defamation as understood by a reasonable reader.
Defamation — meaning of words — objective test of ordinary reasonable reader/hearer — context of political speech in election campaign — meaning of Afrikaans "smous" — fair comment unnecessary once no defamatory meaning found. |
26 September 1973 |
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A threat or infliction of grievous bodily harm by any participant during a robbery constitutes aggravating circumstances for all accomplices.
Criminal law – robbery – meaning of "aggravating circumstances" – interpretation of "by the offender or an accomplice" – accomplice to the offence of robbery sufficient; no need to prove each co-accused inflicted or foresaw grievous bodily harm – effect of Act 75 of 1959 broadening liability.
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26 September 1973 |
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Whether visual identification, supported by corroborative testimony, proved the accused’s participation in an aggravated robbery.
Criminal law – Identification evidence – Assessment of reliability – Factors: lighting, proximity, opportunity, stress, prior parades, corroboration – Corroborative testimony may render identification safe – Appellate deference to trial court’s demeanour findings.
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26 September 1973 |
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Confession, forensic and circumstantial evidence supported a finding of murder and justified dismissal of the appeal.
Criminal law – murder – participation in common purpose and foresight of fatal result – confession and corroborative circumstantial/forensic evidence – burden to prove extenuating circumstances – sentence of death affirmed.
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26 September 1973 |
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Appellate court found no misdirection and upheld imprisonment under Precious Stones Act for repeated illicit diamond buying.
Criminal law — Precious Stones Act — sentencing — deterrence versus personal mitigation — reliance on earlier cases and R. v. L. — misdirection — appeal against sentence dismissed.
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25 September 1973 |
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Whether proclamations under the Suppression of Communism Act prohibit dissemination of periodical issues printed before proclamation.
Suppression of Communism Act — Proclamation prohibiting "printing, publication or dissemination" — Whether prohibition extends to copies printed/published before proclamation — Construction of penal provisions — Periodical publications — La Guma and Malkinson applied.
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24 September 1973 |
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Appeal allowed: child’s evidence sufficed to raise a prima facie case of driver negligence; absolution wrongly granted.
Automobile collision — absolution from instance — test at close of plaintiff’s case; evidence of a young child with lacunae — permissible inferences of driver’s negligence in absence of explanation; duty of special care towards very young pedestrians.
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21 September 1973 |
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Appellate court refuses to disturb partly custodial sentences for unlawful diamond purchases; sentencing discretion properly exercised.
Criminal law – sentencing – appellate interference with discretionary sentence – only where misdirection or striking unreasonableness shown; mitigating factors (enticement by decoys, first‑offender status, health and remorse) weighed against seriousness of offence, statutory harsh penalties and deterrence in widespread illegal diamond trade.
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20 September 1973 |
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Appellate court found a visible pool of headlight illumination and increased the motorist's contributory fault to 50%.
Motor-vehicle collision — apportionment of fault — visibility of rear warning devices and effect of coal dust — existence of pool of light from truck headlights — duty to keep proper lookout — appellate reassessment of negligence.
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13 September 1973 |
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Appeal against murder conviction dismissed; trial court properly rejected accidental-shooting defence and found no extenuating circumstances.
Criminal law — murder — defence of accidental discharge — burden on accused to prove extenuating circumstances on a balance of probabilities — credibility and consistency of eyewitness, accomplice and medical evidence — post-offence statements and letters as evidence of intent.
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11 September 1973 |
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Appeal dismissed for non‑prosecution; other appeals dismissed on reliable identification, voluntary confession and possession evidence.
Criminal procedure – A.D. Rule 7(2) – dismissal for non‑prosecution where appellant breaches bail and absconds; Evidence – confession – voluntariness and admissibility; Identification evidence – reliability of eyewitness identification on roadside and at identification parade; Possession of weapon and banknotes – inference of guilty association and corroboration of guilt.
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11 September 1973 |
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Applicant entitled to spoliation relief: evidence of active trading established possession and unlawful ouster despite irregularities; restoration ordered without trading-permission condition.
Spoliation — possession sufficient for spoliation order — proof of active trading and control; self-help and unlawful dispossession; illegality of arrangement does not bar spoliation relief; civil spoliation order should not be conditioned on obtaining administrative permission to trade.
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11 September 1973 |
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Exercise of a testamentary option by a legatee amounts to acquisition by testamentary succession, exempting it from transfer duty.
Transfer duty – Transfer Duty Act s.9(1)(e)(i) – testamentary option granted to legatee – exercise of option construed as adiation and acquisition by testamentary succession – no transfer duty payable; Hart v. C.I.R. distinguished/overruled on facts.
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10 September 1973 |
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Appellant's youth and intoxication did not constitute extenuating circumstances; conviction and sentence upheld.
Criminal law — Murder — Extenuating circumstances — Intoxication and youth — Pre‑meditation versus spontaneous loss of self‑control — Credibility of accused — Confession held admissible and relied upon.
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10 September 1973 |
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Whether a contract for unproclaimed township stands was void for vagueness due to statutory amendment powers affecting identification.
Contract law – certainty and identification of subject-matter – incorporation of statutory provisions by reference – Townships Ordinance s.58(13) – suspensive sale of unproclaimed township stands – effect of contractual clause limiting amendments to minor boundary/number changes.
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4 September 1973 |
| August 1973 |
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Whether admitting prior hearing records and a commissioner's memorandum prejudiced the applicant’s appeal against dismissal.
Administrative law — review of disciplinary inquiry — Police Act and Regulations — admissibility of documentary evidence under regulation 64(10)(e) — scope of discretion to dispense with viva voce testimony — requirements of rule 53(2) for review affidavits — effect of executive memorandum to Minister on appeals.
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30 August 1973 |
