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Citation
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Judgment date
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| December 1974 |
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Appeal against finding of no mitigating circumstances dismissed; psychiatric evidence and intoxication did not mitigate convicted murder and related offences.
Criminal law – murder and related sexual/violent offences – assessment of extenuating circumstances – credibility findings – psychiatric evidence and intoxication as mitigation.
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11 December 1974 |
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Whether the State proved instrumental abortion and causation; conviction reduced to attempted unlawful abortion, one conviction quashed.
Criminal law – unlawful abortion – requirement of proof of instrumental invasion and causation; medical evidence on hormones and instrumentation; patient records as evidence; attempt versus completed offence; inadmissibility of proving missing direct evidence by inferring an overarching pattern from unproven counts.
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3 December 1974 |
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Whether conveyance of goods formed part of a remunerated load and operation of s.11(1)(a) presumption to owner and driver.
Motor Carrier Transportation Act s.9(1) — conveyance for reward; s.1 definition of motor carrier transportation; s.11(1)(a) presumption that conveyor carried on motor carrier transportation — burden on State to prove permission where owner did not personally convey; evidentiary sufficiency — ambiguous witness evidence insufficient to prove contractual scope.
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2 December 1974 |
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Whether conveyance without a certificate was "for reward" under the Motor Carrier Act and whether the statutory presumption applied.
Motor Carrier Transportation Act s.9(1), s.11(1)(a) – "for reward" requirement – statutory presumption that conveyance by motor vehicle constitutes motor carrier transportation – application to owner/permitter versus actual conveyor – burden of proof to rebut presumption.
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2 December 1974 |
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Devaluation during the tax year reduces deductible expenditure to the lower rand equivalent at year-end.
Income tax — s11(a) "expenditure actually incurred" — liabilities in foreign currency — effect of devaluation occurring in same tax year on quantification in local currency — deductions limited to rand equivalent at year-end; alternative argument on s8(4)(a) recoupment not determined.
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2 December 1974 |
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Whether the bus driver was prima facie negligent in failing to avoid a collision caused by another driver ignoring stop signs — appeal dismissed.
Motor-vehicle collision — Motor Vehicle Insurance Act — Prima facie negligence — Duty to keep look-out versus entitlement to assume right of way — Whether hooting, braking or swerving by a fully laden bus could reasonably have avoided collision — Absolution from instance upheld.
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2 December 1974 |
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Whether the plaintiff proved the driver's negligence — court held he failed to do so and absolved the defendant.
Road traffic — Liability — Burden of proof in pedestrian–vehicle collision — Credibility and probabilities; appellate review of speculative inferences; appeal record — inclusion of unnecessary documents and costs consequences.
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2 December 1974 |
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Whether a committee appointed under valid regulations may be "deemed the commission" for s 6(1) purposes and act without its full appointed complement.
Commissions Act 8 of 1947 — s 1(1), s 6(1) — State President’s power to make regulations — regs 16 and 17 valid — commission may appoint committees deemed to be commission — construction of "commission" for penal provision s 6(1) — whether committee must act with full complement — majority: committee appointed under reg 16 may act for s 6(1) purposes even if not all appointed members present; dissent: penal provision requires full commission/committee acting together.
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2 December 1974 |
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Medical evidence proved the bullet caused fatal meningitis, but evidence left reasonable doubt as to intent to kill; murder reduced to culpable homicide.
Criminal law – causation – fatal meningitis months after gunshot – chronic osteitis linking bullet wound to meningitis – causation proved beyond reasonable doubt. Criminal law – intention (dolus) v. accident/negligence – inconsistent eyewitness evidence and dynamics of struggle create reasonable doubt as to intent to kill. False testimony by accused insufficient alone to infer murderous intent. Remedy – murder conviction substituted with culpable homicide and matter remitted for sentencing.
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2 December 1974 |
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The appellant’s conviction is upheld but the nine-month prison sentence is replaced by a R100 fine, default three months.
Sentencing — appropriateness of custodial sentence versus non-custodial penalty Appeal — distinction between appeal against conviction and appeal against sentence Substitution of sentence — replacement of imprisonment with fine and alternate custody on default
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2 December 1974 |
| November 1974 |
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Unanimous shareholder assent cannot validate a dividend declared contrary to a company's memorandum; statutory special-resolution and filing required.
Companies Act (1926) s11bis; memorandum vs articles; ultra vires doctrine; conditions in memorandum alterable only by special resolution and Registrar filing; unanimous shareholder assent cannot validate acts ultra vires the memorandum; dividend declared from capital reserve contrary to memorandum void.
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29 November 1974 |
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Broker’s repledge in excess of client indebtedness breached pledge and Rule 163 bis; bank’s estoppel defence failed; appeal dismissed.
• Property / vindication – shares – owner’s right to identical share certificates where broker repledges contrary to deed/Stock Exchange rule.
• Interpretation of pledge and Rule 163 bis – broker’s real right limited to amount of client’s indebtedness; repledging en bloc for larger sums breaches the rule/deed.
• Estoppel by representation – requires proximate causal reliance; bank failed to prove reliance induced the overdraft.
• Civil procedure – noting an appeal suspends operation of trial court delivery/valuation dates; appellate alteration of such dates raises separate issues (majority refused extension; minority would extend).
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29 November 1974 |
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Appellant’s evidence he possessed stolen goods only to return them, corroborated by counsel and staff, rendered conviction unsafe.
Criminal law – Theft – Mens rea and possession – Whether possession of stolen goods was bona fide pending restitution – Significance of circumstantial numeric evidence and corroboration by legal advice and witness testimony.
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29 November 1974 |
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Court upholds seven-year sentence for culpable homicide; intoxication not sufficient mitigation given brutal attack.
Criminal law – Sentence – Culpable homicide – Alleged misdirection by trial judge – Whether sentence excessive – Intoxication as mitigation – Prior assaults and brutality of attack relevant to sentence.
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28 November 1974 |
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On appeal, documents and credibility established respondent’s liability for timber supply; absolution was improperly granted.
Civil law – Sale of goods – Proof of contract by contemporaneous documents and witness credibility; appeal against absolution from instance; effect of later correspondence on primary contractual liability; recoverability of alleged delivery/transport charges; taxation of costs (two counsel).
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28 November 1974 |
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Alibi and identification upheld; illiteracy and clan vendetta do not constitute extenuating circumstances — appeal dismissed.
Criminal law – murder – identification evidence: reliability of eyewitness identification by persons who knew accused; alibi disproved by contemporaneous employer evidence; extenuating circumstances: illiteracy, tribal background and vendetta do not automatically reduce moral culpability.
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28 November 1974 |
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Appeal dismissed: driver not negligent or shown to have caused collision with unlit motorcycle.
Delict — Negligence — Foreseeability and duty of care at night — Whether driver should have anticipated an unlit motorcycle and used full‑beam — Causation — Appellate review of trial court credibility and factual findings (point of impact).
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28 November 1974 |
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Court upheld heavy sentence for initiating large-scale bribery but reduced sentence for a recruited, less culpable co-offender.
Criminal law – Sentencing discretion – Appeal against sentence – Interference only if misdirection, irregularity or sentence disturbingly inappropriate; Bribery – Seriousness and public interest in deterrence; Sentencing – Consideration of subjective mitigating factors (family, motive, custody pending trial) and cumulative sentences; Lesser participation and coercion/family pressure may justify sentence reduction. |
26 November 1974 |
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Appeal allowed: prosecutors’ honestly grounded suspicion justified warrants; police officer did not instigate malicious prosecution or wrongful arrest.
Criminal procedure – arrest warrants under s.28 Criminal Procedure Act – reasonable and probable cause; legal and factual components of suspicion – police vs prosecutor responsibility for instituting prosecution – malicious prosecution and malicious arrest – reliance on legal advice and objective test for reasonable suspicion – magistrate’s limited role on written warrant applications.
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22 November 1974 |
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An assignee who assumes lease obligations cannot evade rent liability by relying on a lessor‑lessee consent clause.
Lease and assignment; clause requiring lessor's prior written consent; substitution of lessee; estoppel/preclusion of assignee; unenforceability defence for alleged unconscionable conduct not pleaded; condonation for late lodging of record — prospects of success; costs including two counsel.
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21 November 1974 |
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Whether extenuating circumstances existed — the appeal court found them and reduced the applicant's sentence to 12 years' imprisonment.
Murder — extenuating circumstances — assessment of cumulative provocation and relationship history; credibility findings and factual misdirection; appellate interference with trial court findings; sentencing where mandatory death penalty removed.
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21 November 1974 |
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Whether the applicant proved the respondent driver's negligence at an intersection — court found applicant negligent and dismissed claim.
Motor-vehicle collision — liability — negligence — duty to keep proper look-out; credibility assessment of witnesses; absolution from instance where plaintiff fails to prove defendant's negligence.
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19 November 1974 |
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Statutory presumptions of possession and dealing may be rebutted on probabilities; proximity alone does not establish guilt.
Drugs Act (41/1971) – s.10(3) and s.10(1)(a) presumptions – meaning of "possession" (possessor, holder, storer, keeper, controller, supervisor) – multiple forms of possession – burden to rebut presumption on balance of probabilities – proximity alone insufficient to prove possession or dealing.
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19 November 1974 |
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Appellant liable under lex Aquilia for taking and selling respondent's cattle; bona fide mistaken belief must be proved and failed.
Delict (lex Aquilia) – wrongful dispossession and sale of livestock; tacit or express authority; bona fide mistake as defence to dolus — onus and reasonableness; appellate review of credibility and probabilities.
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19 November 1974 |
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A court must consider juvenile offenders' age and obtain probation reports before imposing serious sentences; youth is not automatically aggravating.
Criminal law – Sentencing – Juvenile offenders – Court must consider age, personality and circumstances; youth generally mitigatory not aggravating; probation officer reports required in serious juvenile cases; sentencing must balance rehabilitation and societal protection.
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15 November 1974 |
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Sentences set aside where trial court failed to consider juvenile offenders' age and obtain probation reports.
Criminal law – Sentencing – Juvenile offenders – Court must consider age, personality and circumstances – In serious cases probation officer's report should be obtained – Trial court misdirected by treating youth as aggravating factor.
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15 November 1974 |
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The appellant insurer liable for respondent’s injuries where insured negligently reversed vehicle in circumstances creating foreseeable risk.
Motor-vehicle insurance — Negligent driving — Reversing vehicle in darkness without precaution — Foreseeability of harm — Credibility findings of trial court — Appeal will not lightly disturb factual findings; negligence assessed by Kruger v Coetzee standard.
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14 November 1974 |
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Culpable homicide for exceeding self-defence does not always "involve an assault"; assault exists if accused realised he used excessive force.
Criminal law – self-defence – exceeding bounds of reasonable self-defence – whether such culpable homicide necessarily "involves an assault" for sentencing under Group 1, Part 1, Third Schedule – assault requires dolus; culpable homicide requires culpa – assault present if accused realised he used excessive force. Criminal procedure – reservation of question of law under s366(1) – State may reserve question post-conviction where sentence competence is in issue.
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14 November 1974 |
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Appellate court upholds murder conviction and death sentence, finding trial court reasonably rejected mitigation and intent issues.
Criminal law – murder – form of intent (dolus directus v. dolus eventualis) – intent alone not necessarily mitigating; must be weighed with all circumstances. Criminal procedure – appellate review – deference to trial court credibility findings; appellate intervention only for misdirection, irregularity or unreasonable conclusion. Evidence – medical and eyewitness evidence on force and nature of wound relevant to intent and possibility of mitigation.
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12 November 1974 |
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Whether appellate intervention was warranted on negligence apportionment and a substantial general damages award in a vehicle collision.
Motor-vehicle collision — contributory negligence — apportionment of blame between drivers — assessment affirmed on appeal; Quantum — general damages for pain, suffering, disability, disfigurement — appellate interference refused where trial judge’s global assessment not vitiated by misdirection; Lost trial transcript — appeal permitted on best available record; Procedural — effect of no cross-appeal on altering contributory-negligence reductions.
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5 November 1974 |
| September 1974 |
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Loss-of-earnings claim denied where income would have come from hawking without the statutory licence; public policy bars recovery.
Delict — Damages for loss of earnings — Illegality — Unlicensed hawking under licensing statutes — Public policy and public health considerations bar recovery of earnings derived from statutorily prohibited activity.
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30 September 1974 |
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Whether payments routed through a company controlled by the applicant constituted bribes and the required mental element for bribery.
Criminal law — Bribery at common law and statutory corruption — mental element required for recipient’s guilt — payments through a company controlled by official — when company receipts constitute bribes to the official.
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30 September 1974 |
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Direct communication on one date proved; convictions for other dates quashed due to defective charge; sentences reduced to six months.
* Criminal law – prohibited communication under banning notices (s 10(1)(a) Act 44 of 1950) – proof beyond reasonable doubt of direct communication on charged date. Criminal procedure – variance between particulars of charge and evidence – necessity to plead intermediary communications; s 176(2)(a) cannot cure radical variance of time, place and mode. Evidence – credibility of multiple independent witnesses vs defence/alibi and children's evidence. Sentencing – appellate reduction where convictions partially set aside. |
30 September 1974 |
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Whether an 1875 servitude forbids constructing diversion and storage dams that capture public-stream water.
Water law – public stream and headwaters – jurisdiction of Water Court over diversion, conveyance and storage works; interpretation of historic servitude restricting "any dam above or between" servitude dams; servitudes registered against subdivided tenements; acquisitive prescription pro tanto; abandonment and waiver of servitude rights.
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30 September 1974 |
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Bank crediting a depositor's account for a cheque deposited for collection did not constitute 'consideration' under s81(1).
Bills of Exchange Act 34 of 1964 – s81(1) – stolen crossed cheque – liability of possessor who received cheque after theft – requirement of 'teenprestasie' to recover from a possessor. Interpretation of 'teenprestasie' – ordinary quid pro quo/consideration, not the broader common‑law justa causa or 'geldswaardige teenprestasie'. Deposit for collection – bank crediting depositor's account and routine interest bookkeeping entries do not, without more, constitute consideration or make the bank a holder for value. s81(4) presumption may be rebutted by proof that no consideration was given.
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27 September 1974 |
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Where a road-closure affects rights, the road board must allow objectors to answer oral representations before deciding.
Administrative law – natural justice (audi alteram partem) – road board’s decision to close private road under s46(3) – where rights/interests affected, objector must be given opportunity to answer oral representations – remit for rehearing.
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27 September 1974 |
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Predictable overflow of makeshift soakpits was not malfunction and thus not covered by the insurance policy.
Insurance — interpretation of house‑owner policy — "bursting or overflowing of water tanks, apparatus or pipes" — requirement that overflowing result from malfunctioning apparatus; makeshift soakpits held not to be malfunctioning apparatus; insurer not liable for damage caused by predictable overflow of neighbouring soakpits.
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27 September 1974 |
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CAR policy covered remedial repairs discovered during policy, Bluff and pipe-delay claims failed; umbrella policy held liable for completion damages.
Construction all risks (C.A.R.) policy – interpretation of "replacing any defective and/or faulty workmanship" – "replacing" includes repairing; cover for remedial works discovered during policy. Discovery during currency of policy material. C.A.R. policy principally property risks — does not extend to liabilities for non-delivery of materials not on site. Umbrella (Bumbershoot) policy – "all sums which the Assured shall by contract become liable to pay in respect of claims made… for damages" – employer's excess completion costs fall within "damages". Condition C (notice) is condition precedent but satisfied by broker/telex communications; Condition D (right to associate) imposes no independent duty to give notice. Interest from date of judgment; costs apportioned.
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27 September 1974 |
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The respondent's challenge to arbitration awards failed; mere unreasonableness does not justify setting them aside.
Administrative law; arbitration under Community Development Act — review limited to whether discretion was exercised — mere unreasonableness insufficient ground for interference; absence of reasons material only where prima facie irregularity established; compensation valuation disputes are estimates within arbitrators' discretion.
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27 September 1974 |
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Applicant failed to prove on a balance of probabilities that the respondent's tractor driver negligently caused the towing accident.
Tort (delict) Negligence and causation in towing operations; onus of proof on plaintiff; insufficiency of circumstantial evidence where primary witness absent; duties of lookout, response to signals and reasonable speed in towage.
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27 September 1974 |
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Whether the Administrator could declare a public road over land when an existing road already connected the same places.
Roads and road‑making powers – interpretation of "pad" and "grond" – restrictive construction to minimise expropriation of private land; statutory validation and retrospectivity – presumption against retrospective operation; effect of amendments on pending proceedings.
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27 September 1974 |
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Whether a purchaser in civil possession who bears contractual risk can sue for diminution in market value.
Delict — property damage — purchaser in civil possession — holder’s economic interest; actio legis Aquiliae and actio furti — non-owners’ remedies; cession of seller’s actions; trespass versus delictual claim for diminution in market value.
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25 September 1974 |
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Whether cancellation excused repayment — court held repayment survived and implied a term requiring payment despite failed sale proceeds.
Contract law — rescission/cancellation — repayment of part‑payment after cancellation — clause designating fund for repayment not a suspensive condition — implication of term by business necessity (Reigate test) that debtor must pay from own sources if designated fund fails.
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24 September 1974 |
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Whether dividends paid via a trust from foreign shares are exempt under s10(1)(k)(v) when beneficiaries are not registered shareholders.
Income tax — s.10(1)(k)(v) exemption — meaning of "shares" and "acquired" — deemed/beneficial entitlement vs registered ownership — conduit principle and trusts.
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20 September 1974 |
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A conditional offer to sell only to the Board at a fixed price does not trigger the Board’s statutory preferent right under s15(5)(a).
Community Development Act s15(5)(a) — preferent/right of pre-emption — meaning of "desires to dispose" — conditional offers to Board — statutory preferent right distinguished from common-law pre-emption — arbitration for price — withdrawal of offers.
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20 September 1974 |
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Appellate court upholds trial judge on credibility, rejects contributory negligence, and affirms damages and future-loss calculations.
Delict — Motor collision — primary negligence of opposing driver — contributory negligence not established; appellate review of credibility findings. Quantum — general damages and future loss of earnings — actuarial capitalisation, contingencies and allowance for possible future employment. Civil procedure — condonation for late filing of record — discretion as to costs.
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17 September 1974 |
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Conviction reduced to culpable homicide where evidence failed to prove statutory intent or knowledge of likelihood of death.
Criminal law — Transkeian Penal Code — sections 135 and 140 — proof of murder requires either intent to kill (s140(a)) or knowledge that injury was likely to cause death (s140(b)) — statutory "likelihood" test stricter than common-law foresight/recklessness — evidential gaps (knife, force, number of wounds, absent witnesses) fatal to proving murder; competent verdict of culpable homicide substituted; sentence reduced to eight years' imprisonment.
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17 September 1974 |
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Appeal allowed: murder not proved under strict Transkeian Code standards; verdict substituted to culpable homicide and sentence reduced to eight years.
Criminal law — Transkeian Penal Code — s135 (culpable homicide) and s140 (murder) — requirements of s140(a) intent to kill and s140(b) "known to be likely to cause death" — prosecution burden to prove statutory language beyond reasonable doubt — modern common-law foresight test distinguished from stricter statutory "likelihood" test — competent substitution to culpable homicide where murder not proved — sentencing: prior convictions and deterrence justify substantial imprisonment.
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17 September 1974 |
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A deemed conviction under section 351 constitutes a conviction for contractual forfeiture and supports ejectment.
Contract law – lease forfeiture – meaning of 'convicted' in a forfeiture clause – Criminal procedure – section 351 admission of guilt procedure – whether 'deemed' conviction amounts to real conviction for contractual and legal consequences – interplay with requirement for judgment in open court.
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10 September 1974 |
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Insufficient proof of subjective knowledge of white bullets’ danger—convictions altered to common assault, sentences reduced.
Criminal law – proof of subjective intention – whether accused knew white plastic bullets could cause grievous injury – negligence insufficient to supply specific intent – intentional pointing/firing to frighten constitutes common assault.
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10 September 1974 |
