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Citation
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Judgment date
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| November 1975 |
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Written memorandum constituted an enforceable agreement and prescription was interrupted by 1970 conduct, so appeal dismissed.
Contract — written memorandum — whether document constitutes binding agreement or a protective/nudum pactum; admissibility of extrinsic evidence to determine parties’ intention. Prescription — interruption (stuiting) by acknowledgement or conduct; sale/lease and written consent as interruptive acts. Civil procedure — appropriateness of action versus motion procedure; admissibility of further evidence on appeal; appellate review of credibility findings.
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28 November 1975 |
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An insolvent obtains credit when entrusted with goods or services on an undertaking to pay in the future; conviction upheld.
Insolvency — s137(a) Insolvency Act — meaning of 'obtains credit' — includes delivery of goods or rendering of services entrusted to insolvent on undertaking to pay in future; common-law due-date test rejected; conviction upheld where creditor would not have parted with property/services had insolvency been known.
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28 November 1975 |
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Effective sentence reduced from 13 to 9 years after appellate court weighed cumulative effect and appellant’s psychiatric condition.
Criminal law – sentencing – cumulation and concurrency of multiple sentences – adequacy of weight given to psychiatric condition and personal circumstances – reduction of effective sentence on appeal; Mental Health Act (No. 18 of 1973) – s.30 investigation and possible transfer to prison-hospital for psychopaths – relevance to sentencing and post-sentence treatment.
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28 November 1975 |
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Murder conviction reduced to culpable manslaughter due to reasonable doubt about intent from intoxication and circumstances.
Criminal law – Identification evidence – credibility of witnesses regarding who inflicted fatal wound and ownership of weapon – appellate review of trial court's findings. Criminal law – Intention to kill (dolus) – when intoxication, poor lighting and circumstances of the attack may give rise to reasonable doubt. Criminal procedure – Substitution of conviction on appeal – murder substituted with culpable manslaughter and sentence reduced.
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28 November 1975 |
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Civil courts may review domestic tribunal decisions for lack of jurisdiction, denial of natural justice or absence of evidential basis.
Administrative/judicial review – Domestic (church) tribunals – finality on merits but civil courts retain supervisory review for jurisdictional failure, mala fides, denial of natural justice or absence of evidence; extended formal test applies; voluntary associations’ internal decisions reviewable where tribunal acts on unpleaded grounds or without hearing. |
28 November 1975 |
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A two‑person (or more) meeting can constitute a statutory "gathering"; four people playing bridge fell within the Act, appeal dismissed.
Interpretation of "gathering" under the Suppression of Communism Act — effect of the qualifying words "of any number of persons"; ejusdem generis in statutory construction; whether two or more persons can constitute a prohibited "gathering"; application to a four-person card game. |
28 November 1975 |
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Delivery to the local port authority under the bill of lading upheld; unpleaded mixed-delivery objection disallowed.
Carriage by sea – bill of lading clause providing for delivery to "Harbour Board or Port Authority or their Agents" – construction in context to mean body authorised to receive discharge at port; proof on balance of probabilities that local body (Otraco) was port authority; unpleaded mixed-delivery objection not permissible where plaintiff failed to replicate.
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27 November 1975 |
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Condonation refused for late record and absent security; insurer taking over defence did not defeat costs order.
Condonation; Rule 13; late lodging of record (Rule 5(4)(b)); failure to enter security for costs (Rule 6(2)); belated tender to attorney’s trust account not equivalent to security; insurer’s right to conduct defence under indemnity policy does not make insurer the defendant; Taxing Master’s duty to tax where costs order exists.
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27 November 1975 |
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A commissioner’s certificate need not repeat statutory words verbatim; substantial compliance validating a will signed by mark suffices.
Wills Act s.2(1)(a)(v) — certificate by commissioner of oaths — substantial compliance suffices; ipsissima verba not required — formalities aimed at preventing impersonation and ensuring identity — will signed by mark validated where certificate shows certifier satisfied as to identity and that document was the testator’s will; post-mortem amendment left undecided.
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26 November 1975 |
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Whether an oral consultancy agreement existed, was wrongfully repudiated, and whether claimed R5,000 damages were proved.
Contract law – Formation of oral agreement – credibility of witnesses; wrongful repudiation – acceptance and damages; proof of loss of profit – failure to quantify negligible expenses not fatal; appeal – review of factual findings and condonation for late filing.
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26 November 1975 |
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Pleadings did not admit ownership; survey constituted "business" of owner so insurer may be liable, driver’s business claim failed.
Motor Vehicle Insurance Act s.11(1)(iii) — meaning of "business" — wide construction in favour of third parties; isolated organised enterprises may qualify as "business". Pleadings — implied admission — an admission in a plea must be clear and unequivocal; an admission of insurance does not necessarily imply admission of ownership where ownership is expressly denied. Appeal — trial judge’s erroneous ruling treating a plea as admitting ownership and refusal to allow amendment set aside; matter remitted for determination of ownership and possible amendment. Liability — passenger conveyed in course of owner’s business entitles claim under proviso (iii); driving by an incidental companion was not in course of driver’s business.
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25 November 1975 |
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The respondent's occasional visits did not make him a member of the household for insurance exclusion.
Insurance — motor vehicle indemnity — interpretation of "member of the same household" — requires relationship plus occupation/continuous residence — occasional or weekend visits insufficient — onus on insured to prove non-membership.
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25 November 1975 |
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Appeal succeeds: trial court wrongly accepted driver’s improbable ‘stone‑struck windscreen’ account; plaintiff entitled to damages.
• Civil procedure – absolution at close of plaintiff’s case – correctness where defendant’s account of unforeseeable event accepted by trial court – appellate review of credibility.
• Delict – motor collision – inference of negligence where a vehicle runs into a stationary vehicle from behind – effect of defendant’s claim of windscreen struck by object.
• Evidence – assessment of witness credibility, weight of post‑accident statements and physical evidence (glass fragments).
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25 November 1975 |
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Appellate court replaced an active prison term with a fine and wholly suspended sentence given strong mitigating circumstances.
Criminal law – sentence – large-scale theft by employee in position of trust – factors mitigating sentence: full repayment, absence of prior convictions, chronic neurotic/depressive illness, cooperation with employer. Sentencing – deterrence vs. personal mitigation – when non-custodial punishment (fine + suspended term) is appropriate. Appellate review – substitution of materially different sentence where trial court did not consider suitable alternatives.
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25 November 1975 |
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Appeal dismissed: accomplice evidence properly corroborated and trial procedure did not prejudice appellants; culpable homicide convictions upheld.
Criminal procedure – acceptance of guilty pleas at close of State case – de facto separation of trials permissible and not prejudicial. Evidence – accomplice testimony – cautionary rule applies; corroboration may be inferred from conduct and medical evidence. Criminal liability – culpable homicide – participation in a collective assault that contributes to death attracts criminal responsibility.
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25 November 1975 |
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The Transkei Legislative Assembly alone could alter Act No. 41/1971 provisions affecting health, so s.2A of Act No. 80/1973 did not apply in Transkei.
Constitutional law — Transkei Constitution Act — legislative competence of Transkei Legislative Assembly (s.37) — Part B First Schedule (health matters) — application of Acts of Parliament in Transkei — whether amending Act No. 80 of 1973 applied in Transkei; Criminal procedure — distinction between amending substantive sentencing provisions and procedural sentencing powers; statutory interpretation of s.2A of Act No. 41 of 1971.
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25 November 1975 |
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Conviction for illicit diamond dealing upheld; trap-evidence credible with corroboration and sentence affirmed.
Criminal law — Illicit diamond dealing — Trap evidence — Caution when convicting on evidence of traps/accomplices — Need for corroboration and assessment of probabilities — Credibility findings of trial court entitled to great weight — Forfeiture of proceeds and compensation orders — Sentence review.
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24 November 1975 |
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A defendant’s conditional counterclaim for contribution under the Apportionment Act is competent; exception dismissed.
Provisional/conditional counterclaim; Apportionment of Damages Act (Act No. 34 of 1956, as amended) s.2(6)(a); declaratory relief; pleadings read together; exception to counterclaim; joinder of alleged co-wrongdoer; avoidance of multiplicity of suits. |
20 November 1975 |
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Reported
Affidavit in support of summary judgment must verify cause of action and show deponent's personal knowledge; defendant's bona fide defence warranted refusal of summary judgment.
Procedure — Summary judgment (Rule 32) — Supporting affidavit must verify cause of action and amount — deponent must have personal knowledge or show how acquired — mere assertion of ability to swear positively insufficient — court to consider all documents 'at the end of the day'.
Procedure — Summary judgment (Rule 32(3)) — Defendant must 'fully' disclose nature and grounds of bona fide defence with sufficient particularity to show it is bona fide and good in law.
Pleadings — Particularity — Lack of particularity in simple summons must be considered when assessing opposing affidavits.
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18 November 1975 |
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Appellants convicted of fraud and perjury; appellate court replaces immediate prison with suspended terms and fines.
Criminal law – Fraud and perjury – guilty pleas supported by agreed admissions – sufficiency of evidence for convictions; sentencing – mitigation, speculative nature of prejudice and appropriate global suspended sentence with fine. Sentencing – related offences forming one course of conduct may be treated together; appellate interference warranted where trial court overstated prejudice.
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18 November 1975 |
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Presence at the scene at night, without evidence of participation or common purpose, does not support a murder conviction.
Criminal law – Identification – reliability of witness identification at night where witness was familiar with accused, proximity and moonlight supported acceptance. Criminal law – Circumstantial evidence – mere presence at scene insufficient to infer participation in murder absent evidence of acts or common purpose. Evidence – Hearsay – allegations of a prior meeting/plot inadmissible and cannot be relied upon to establish conspiracy. Criminal procedure – Accused's failure to give evidence does not supply missing proof of guilt.
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13 November 1975 |
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Whether widespread calendar publication of erotic nude photographs is 'undesirable' under section 6(1)(b) as likely to outrage or disgust viewers.
Publications Act 26 of 1963 – s 6(1)(b) – undesirable publications – assessment requires evaluation of matter and probable impact on likely readers/viewers – mode and scale of publication (widely displayed calendar) material to enquiry – nudity not automatically permissible; manner and context decisive.
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11 November 1975 |
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The applicant’s prison sentence for buying uncut diamonds was upheld, but the repayment condition of suspension was set aside.
Criminal law – Sentence on appeal – Disparity between co-accused’s sentences not alone ground for interference; only misdirection, irregularity or disturbingly inappropriate sentences justify appellate interference. Criminal law – Illegal trade in uncut diamonds – Seriousness and deterrence justify substantial custodial sentences. Criminal procedure – Suspended sentence conditions – Restitution/repayment condition invalid if no evidence of benefit, no causal basis or no inquiry into ability to pay.
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11 November 1975 |
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Conviction reduced from murder to culpable homicide: dolus eventualis not proved beyond reasonable doubt.
Criminal law — homicide — dolus eventualis — whether accused’s testimony contained unequivocal admissions of foresight; whether murder proved beyond reasonable doubt. Evidence — appraisal of isolated admissions versus testimony as a whole; credibility and reconstruction of intent. Sentencing — reduction where conviction substituted to culpable homicide.
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6 November 1975 |
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Accused’s killing held justifiable self‑defence; conviction and sentence set aside for State’s failure to disprove self‑defence.
Criminal law – Self‑defence – Objective standard of the reasonable person in accused’s position – Credibility and appellate review of trial court’s rejection of accused’s evidence – Onus on the State to prove unlawful conduct beyond reasonable doubt.
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6 November 1975 |
| October 1975 |
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Conviction set aside where alleged corroboration of non-consent was insufficient and reasonable doubt remained.
Criminal law – rape – sufficiency of evidence and corroboration; admissibility and weight of contemporaneous complaints; medical signs and conduct (urination) as corroboration of non-consent; effect of inconsistencies in accused's statements.
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17 October 1975 |
| September 1975 |
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Appeal partly allowed: two convictions quashed; multiple convictions and death sentence upheld based on ID, fingerprint and common purpose.
Criminal law – identification evidence – value of identification parades and in-court ID; reliability assessed in light of inconsistencies and witness demeanour. Forensic evidence – fingerprint found on vehicle – weight where position indicates an inside or exiting occupant and accused fails to explain. Common purpose – liability for offences (including rape) committed by gang members acting with a shared objective. Recent-possession doctrine – inference from possession of stolen property and timing of possession. Single-witness caution – dangers of convicting on uncorroborated, uncertain testimony. Sentencing – appellate restraint on review of death sentence; discretionary exercise not overturned absent misdirection or irrationality.
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30 September 1975 |
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Whether the appellant acted in lawful self‑defence or exceeded it, warranting reduction from murder to manslaughter.
Criminal law — self‑defence — scope and excess — witness credibility and perception of events — appellate re‑evaluation of findings of fact — conviction altered from murder to manslaughter and sentence reduced.
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30 September 1975 |
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Appeal allowed: State failed to prove appellants shared a common purpose to murder beyond reasonable doubt.
Criminal law – Murder – Common purpose – Whether inference of common purpose justified by evidence – Circumstantial evidence and credibility – Possession of weapons and alleged admissions insufficient to prove shared murderous purpose.
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30 September 1975 |
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A driver's‑licence withdrawal under the provincial ordinance is regulatory, not a criminal punishment; appeal dismissed.
Road traffic — Ordinance 21 of 1966 — art. 147(3) — automatic withdrawal of driver's licence on third or subsequent conviction — regulatory measure, not criminal punishment for s.303 ter/Fifth Schedule Rule 1(a) purposes. Constitutional/legislative competence — provincial power to regulate driver licensing upheld. Validity of conditions attached to suspended sentence — prohibition on driving for fixed period lawful.
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30 September 1975 |
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Attempted rape can be established where accused believed the deceased was alive and would not have consented to intercourse.
Criminal law – Attempted rape – Whether attempt can be proved where accused had intercourse with a corpse believing victim alive – Incorporation of material facts in reserved question – Precedent R. v. Davies considered.
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30 September 1975 |
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Shod kicks causing intestinal perforation constituted culpable homicide; sentence reduced on appeal.
Criminal law – Culpable homicide – causation – medical evidence linking shod kick to small‑bowel perforation causing death; subsequent assault not a novus actus; foreseeability (diligens paterfamilias) establishes culpa; appellate review of sentence where trial court’s sentence is disturbingly inappropriate.
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29 September 1975 |
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Failure to call the available driver and his unexplained sudden stop at night justified inferring respondent's contributory negligence.
Motor-vehicle collision – absolution from instance – whether trial court erred in granting absolution where insured driver not called to testify. Evidence – failure to call available witness – adverse inference that witness would not give satisfactory explanation. Negligence – sudden stopping/parking at night on fast road – duty to take extra precautions (mirror-checking, avoiding abrupt stopping). Contributory negligence – concurrent negligence by both drivers; res ipsa loquitur unnecessary.
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29 September 1975 |
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Appellate interference for disparity requires equal culpability; here appellant’s dominant role justified the harsher sentence.
Criminal law – Sentencing – appellate interference for disparity of sentence between co-participants tried separately – test for disturbing disparity; admissibility of co-accused’s judgment for comparison; role of individual culpability in justifying differing sentences.
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29 September 1975 |
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Convictions set aside where single‑witness identification and alleged corroboration were unreliable and insufficient to prove guilt.
Criminal law – identification evidence – single eyewitness identification – caution required where identification opportunities limited; inconsistencies and embellishment undermine reliability; circumstantial evidence and admissions must be admissible and sufficiently probative to corroborate unsatisfactory identification; pointing‑out evidence inadmissible absent proof of voluntariness.
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29 September 1975 |
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Conviction for theft affirmed; sentence set aside and remitted for resentencing due to sentencing misdirection and possible sudden temptation.
Criminal law – Theft by recipient of an overpayment; proof and credibility of State witnesses; sentencing – misdirection by treating isolated overpayment-theft as embezzlement; sudden temptation doctrine where negligence by third parties creates opportunity; remit for resentencing where relevant mitigation and financial facts absent.
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29 September 1975 |
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A purchaser’s knowledge or rent negotiations do not bar ejectment unless it adopted or enforced the illegal lease.
Group Areas Act – invalidity of lease – purchaser’s knowledge of illegality; Adoption/enforcement of illegal contract – in pari delicto; Ejectment – purchaser’s rights against unlawful occupiers; Discretion to grant time to vacate after ejectment order.
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26 September 1975 |
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Appellate court reduced an excessive sentence after finding the trial judge improperly penalized remorse and alcoholism.
Criminal law — Sentencing — Trial judge’s consideration of offender’s alcoholism and subsequent relapse — Improper to extend custodial term to deny access to alcohol; appellate court may alter sentence where misdirection and excessiveness shown; culpable homicide by gross negligence while intoxicated; suspension and fine substituted for lengthy imprisonment.
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26 September 1975 |
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Accomplice testimony, materially corroborated and bolstered by accused's lies, can lawfully sustain a murder conviction.
Criminal law – Accomplice evidence – special danger in convicting on accomplice testimony; need for corroboration implicating the accused or other satisfactory indicators. Corroboration – independent witnesses corroborating material aspects of accomplice account can suffice. Credibility – accused’s deliberate untruths may reduce the risk inherent in relying on accomplice evidence. Section 257 (formerly s.285) – does not by itself eliminate the caution required when relying on accomplice testimony.
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25 September 1975 |
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Whether the applicant was entitled to commission after the principal accepted a lower sale price despite an earlier concluded sale.
Agency and commission – proof of concluded sale by agent – credibility and probabilities – principal’s plea admitting commission term – no waiver or forfeiture by agent – principal liable despite subsequent acceptance of lower price – fictional fulfilment inapplicable on pleaded facts.
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25 September 1975 |
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Whether pre-completion interest forms part of "the cost to the taxpayer" of a building for s13 bis allowances.
Income Tax Act s13 bis — statutory construction of "cost to the taxpayer of any portion of a building" — whether pre-completion interest on borrowed funds is includible — ordinary meaning limits "cost" to price/consideration for erection — accounting practice cannot override statutory language; financing charges not deductible as building cost.
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25 September 1975 |
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Appellate court upheld murder conviction and 15-year sentence, rejecting accused's accident defence and accepting eyewitnesses' core evidence.
Criminal law – Murder with extenuating circumstances – sufficiency of evidence; rejection of accused’s accidental/self-defence version. Evidence – assessment of conflicting eyewitness testimony – material discrepancies do not necessarily vitiate core, consistent features. Sentencing – prior convictions and post-offence conduct relevant to severity of sentence.
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25 September 1975 |
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Registrar has discretion under s15(2); pre-acceptance amendments without post-dating are not automatically void.
Patent law — Amendment of specifications — s36(3) applies only to accepted complete specifications; provisional and unaccepted complete specifications may be amended to introduce new matter before acceptance. — s15(2) — Registrar's power to post-date an application where amendments introduce new matter is discretionary ('may'), not mandatory. — Registrar's unconditional grant without post-dating not automatically null; review possible in principle but must be properly pleaded and pursued.
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23 September 1975 |
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Death sentence upheld where brutal murder, extensive violent record, and community protection outweighed slight mitigation.
Criminal law – sentencing – murder – mitigating circumstances (relationship, provocation, intoxication) versus aggravating factors (brutality, prior violent record, escape from custody, lack of remorse) – protection of the community and deterrence as legitimate sentencing objectives – when death sentence not startlingly inappropriate.
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23 September 1975 |
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Appellant failed to prove alleged adultery; absolution upheld and appeal dismissed with costs.
Civil procedure — absolution at close of plaintiff’s case — appellate review of credibility findings; Family law — adultery alleged in divorce proceedings — insufficiency of evidence and unreliable key witness; Condonation plea unnecessary where absolution properly granted.
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23 September 1975 |
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Alleged adultery not proved on balance of probabilities; credibility findings and absolution upheld.
Family law – divorce for adultery – assessment of credibility and weight of circumstantial evidence – whether adultery proved on balance of probabilities. Evidence – witness reliability and inconsistent statements; corroboration required for tainted testimony. Civil procedure – absolution from the instance upheld where plaintiff fails to discharge onus.
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23 September 1975 |
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Appellate court upholds sentence for repeated fraudulent cover‑up of rent overcharging; sentencing discretion properly exercised.
Criminal law — Fraud — Repeated fraudulent scheme to conceal statutory overcharging of controlled rents — Fraud as cover‑up increasing gravity of offending. Sentencing — Discretion of trial court — appellate interference only for misdirection, irregularity or disturbingly inappropriate sentence. Sentencing principles — Punishment to fit crime and criminal; role of mercy as balanced humane element; deterrence, prevention and reformation. Rents Act — Overcharging and fraudulent cloaking of contraventions requiring deterrence.
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23 September 1975 |
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Plaintiff failed to prove that an execution sale would have produced proceeds sufficient to satisfy its judgment debt.
Delict/delictual liability — registrar’s omission to register attachment — causation and proof of quantum — weight of open‑market valuations versus likely execution‑sale proceeds; Land Bank Act s.55(3) effect on execution sales; speculation is not evidence. |
22 September 1975 |
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Section 10(2) protects copying only where the original artistic work itself was on public display, not a reproduction.
Copyright — section 10(2) Copyright Act 63 of 1965 — exception to infringement for publication of paintings/drawings/photographs shown in a public place — applies only where the original work itself is on view, not where a reproduction is displayed and copied. Interpretation of statutory exception — "on view in a public place" refers to the original artistic work. Civil procedure — strike out (rule 23) — pleadings relying on inapplicable statutory defences may be struck out as irrelevant; appellate court may allow new legal grounds in strike-out applications where no prejudice results.
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19 September 1975 |
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Condonation for late lodging of appeal record refused where explanations were unreliable and appeal lacked reasonable prospects.
Civil procedure – Condonation for late filing of record under Rule 5(4)(b) – requirement to show good cause and reasonable prospects of success – credibility and inconsistent explanations – arbitration clause in lease does not bind third‑party seller – discretion under Rule 69(3) on costs.
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19 September 1975 |
