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Citation
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Judgment date
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| December 1976 |
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Trafficking conviction set aside where evidence proved post-import possession only; substituted to possession with suspended sentence.
* Criminal law – Drugs – "Handeldryf" (trafficking) – whether continued possession after importation constitutes an act "in verband met invoer" – mere post-import possession insufficient. Criminal procedure – variance between particulars of charge and evidence – substitution of offence (s.179 bis / s.180(4)) inappropriate where discrepancy is substantial and may prejudice accused. Sentencing – mandatory minimum displaced by substitution to possession and suspended sentence where appropriate mitigation and rehabilitation shown
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21 December 1976 |
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An interim interdict was interlocutory, so res judicata did not bar the company’s challenge; matter remitted for trial.
Civil procedure – interlocutory/interim interdict – when an order pendente lite is interlocutory and not final – test: whether the order disposes of any issue in the main action or irreparably precludes relief at trial (res judicata). Res judicata – exceptio rei judicatae vel litis finitae inapplicable where interim order is not a final decision. Locus standi – may be challenged where prior judgment was interlocutory. Costs – appellate costs awarded party-and-party; attorney-and-client costs refused for record preparation.
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21 December 1976 |
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Respondent's yoga book (with nude illustrations) is exempt as bona fide scientific material; appeal dismissed.
• Publications/Customs — interaction of Publications and Entertainments Act and Customs Act — reading section 5(4) exemption into section 113(1)(f) decisions. • Censorship — definition and criteria for 'undesirable' publications; scope of bona fide scientific/technical exemption. • Appeal procedure — respondent may support lower court’s order on alternative grounds without cross-appeal where no variation is sought.
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9 December 1976 |
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Appellant negligent for entering intersection despite seeing high-speed oncoming vehicle; 25% contributory negligence upheld.
Negligence — road traffic — entering intersection at night after stopping — foreseeability of oncoming vehicle’s excessive speed; contributory negligence — apportionment (25%) upheld; use of eyewitness evidence and skid-mark measurements to determine speed and causation
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8 December 1976 |
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Whether the appellant foresaw being seen and thus intended to insult by exposing himself in a parked car.
Criminal law – crimen injuria – attempt – intention (dolus) v. negligence; dolus eventualis; visibility/public place evidence; requirement that accused foresee and reconcile himself with risk of being seen.
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8 December 1976 |
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Conviction quashed where identity evidence was unreliable and material defence testimony was inadequately considered.
Criminal law — Identification evidence — Reliability of identification parade and delayed parade; evaluation of conflicting eyewitness testimony; appellate intervention where trial court failed to consider material defence evidence. Criminal procedure — Review — Alleged interpreter misconduct; adequacy of proof to set aside proceedings. Appeals — Whether reasonable doubt as to identity requires quashing conviction.
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8 December 1976 |
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Appellate court affirms trial finding that driver was primarily negligent in pedestrian collision; appeal dismissed with costs.
Delict — Motor collision — Credibility and probabilities in conflicting eyewitness accounts; inherent improbability of driver’s version that pedestrian ran into stationary car; contributory negligence and apportionment; effect of delay and lost police docket on assessment of evidence.
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2 December 1976 |
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Murder conviction upheld; five‑year imprisonment substituted with referral to a reform school under section 342(1)(d).
Criminal law – Murder – Single eyewitness credibility – whether single inconsistent but substantially credible eyewitness evidence can support conviction. Criminal law – Self‑defence (noodweer) – burden to displace prosecution’s case and when plea fails. Sentencing – Juvenile offender – weight to rehabilitation, probation officer’s report, and appropriateness of reform school referral under s342(1)(d). Appellate review – power to intervene on sentence and substitute non‑custodial rehabilitative order.
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1 December 1976 |
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Bilingual penal provision construed narrowly; FN rifle not a "machine gun" and s.40(1) presumption required each accused to rebut possession.
• Criminal law – interpretation of bilingual penal regulation – where English and Afrikaans texts differ, adopt narrower meaning in penal context.
• Proclamation R.195 s.7(1) – "assembly of armed men" requires an assembly called or summoned (held pursuant to a calling together).
• Arms and Ammunition Act 75 of 1969 – s.32(1)(a) definition issue – "machine gun" construed narrowly; magazine-fed FN rifle not a "machine gun" or part thereof for Act’s purposes.
• s.40(1) presumption – possession of an article on premises raises presumption of possession by persons present; each accused must rebut by a preponderance of probabilities.
• Sentence – erroneous imposition of fine with default imprisonment exceeding statutory maximum corrected.
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1 December 1976 |
| November 1976 |
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Acquisition of foreign citizenship under s15 causes loss only if the acquisition is completed while outside the Union.
Nationality law – Automatic loss of South African citizenship under section 15(1)(a) – Meaning of "acquires" and "whilst outside the Union" – Statutory construction: ordinary meaning, context and background (British nationality precedents) – Acquisition requires completion while outside the Union.
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30 November 1976 |
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Appeal dismissed: driver not negligent; condonation granted but attorney ordered to pay condonation costs de bonis propriis.
Delict — road accident — negligence — pedestrian conduct and reasonable driver assumption; Credibility — variance between pleadings and testimony; Civil procedure — condonation for late delivery of record; costs de bonis propriis against attorney.
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30 November 1976 |
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Appeal reduces award: driver negligent but pedestrian partly to blame; liability apportioned 70/30 and award reduced to R14,700.
Motor collision – pedestrian crossing – negligence of driver for inadequate lookout and ineffective evasive action – contributory negligence of pedestrian for failure to keep vehicle in sight – novus actus interveniens rejected – apportionment of liability 70% driver/30% pedestrian – insurer’s failure to call driver not fatal.
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30 November 1976 |
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A magistrate may not hear evidence after a guilty plea to determine applicability of section 258(1)(b); conviction set aside.
Criminal procedure – section 258(1)(b) – guilty plea in inferior court – prosecutor must provide essential particulars before plea – court must decide applicability of reservation before plea – inadmissibility of hearing evidence after plea to invoke section 258(1)(b) – conviction set aside where magistrate misapplies procedure.
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30 November 1976 |
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Sentence reduced from fifteen to ten years due to appellant’s youth, long delay, absence of state evidence until confessions, and remorse.
Criminal law – robbery with aggravating circumstances – sentencing appeal – appellate interference where trial court failed to consider youth, long delay, absence of state evidence until accused’s confessions, and remorse – substitution of sentence.
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30 November 1976 |
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Consent to tender of a blood‑analysis certificate can suffice; expert proof of whole‑blood representativeness not always required.
Criminal law; Road-traffic offences – blood-alcohol evidence – admissibility of laboratory certificate tendered with defence consent; s 284(1) acknowledgement; requirement for medical evidence on representativeness/equilibration of blood alcohol; evidentiary sufficiency regarding cleansing and sample container.
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30 November 1976 |
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Unexplained delay in furnishing security and poor appeal prospects justified refusal to reinstate and condone the appeal.
Civil procedure — condonation and reinstatement — failure to furnish security for respondent’s costs of appeal (rule 6(2)) — adequacy of explanation for delay — prospects of success on appeal — assessment of damages and credibility of witnesses (repairer, assessor, expert) — discretion to refuse condonation where explanation unsatisfactory and appeal lacks reasonable prospects.
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26 November 1976 |
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26 November 1976 |
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Appeal concerned the sufficiency and credibility of single eyewitness evidence; court affirms conviction and dismisses appeal.
Criminal law – murder – conviction based on single eyewitness evidence – credibility assessment and minor inconsistencies. Evidentiary issues – discrepancy between medical report and witness description (side of wound) held immaterial to core credibility. Procedure – non-production of preliminary-inquiry witness who could not be traced not fatal to State’s case. Appellate review – trial court entitled to prefer witness seen and assessed in the box; accused’s version rejected as inherently untruthful.
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26 November 1976 |
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Whether appellants could be convicted of murder under common purpose based on a gang attack and witness evidence.
Criminal law – murder – common purpose – indictment drafting – whether variance in wording precludes reliance on common purpose; witness credibility and corroboration; mens rea attribution in group attacks.
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26 November 1976 |
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Settlement offer ("with prejudice") held not an acknowledgment of liability and did not interrupt prescription under insurer claim.
Prescription — Motor Vehicle Insurance Act 56 of 1972 s24(1) — interruption by acknowledgment — settlement offer vs. admission — meaning of "with prejudice" in pre‑litigation correspondence.
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25 November 1976 |
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Written bonus clause governs entitlement; parol evidence cannot vary clear contractual terms; audited instalments payable despite resignation.
Employment law – written letter of appointment – incentive bonus clause construed in its plain meaning; parol evidence inadmissible to vary clear written terms; audited bonus instalments payable once audited accounts available and not conditional on continued employment; implied forfeiture not established; appellate award of unpaid audited bonus, interest and costs.
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25 November 1976 |
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Convictions based on untested, inconsistent identification evidence were set aside as identity was not proved beyond reasonable doubt.
Criminal law – Evidence – Identification evidence – Reliability tested by factors such as lighting, proximity, opportunity, prior knowledge, voice and physical features. Criminal procedure – Identification parades – Value of properly arranged parades for corroboration. Appeal – Misdirection by trial court on crucial identification findings – appellate court free to reconsider and set aside convictions where identity not proved beyond reasonable doubt.
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25 November 1976 |
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Appeal allowed: prosecution failed to prove corrupt intent towards the employer and accomplice evidence lacked sufficient corroboration.
Criminal law — Prevention of Corruption Act s.2(a) — required subjective belief by agent that payer intended inducement relating to principal’s affairs — accomplice evidence and s.257 corroboration — corroboration may be circumstantial but must render accomplice reliable and exclude reasonable doubt.
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23 November 1976 |
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An avoidance order restores corporate existence but does not validate proceedings taken during the period of dissolution.
Companies law – dissolution and avoidance – s191(1) Companies Act 1926 – effect of order declaring dissolution 'to have been void' does not validate proceedings taken during period of dissolution; liquidator’s release requires statutory formalities; summons issued during dissolution is nullity.
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23 November 1976 |
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Appellate court upholds murder conviction and death sentence; youth and alleged accidental discharge did not mitigate.
Criminal law – murder v. culpable homicide – assessment of appellant’s claim of accidental discharge – credibility and surrounding conduct. Dolus eventualis – firing while realizing risk of death. Sentencing – extenuating circumstances – youth and absence of dolus directus not automatically mitigating; inquiry into motive, personality and manner of commission. Appeal – appellate deference to trial court’s credibility findings.
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23 November 1976 |
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Appellant entitled to self‑defence; convictions and sentences for murder and assault were set aside.
Criminal law – murder – self‑defence (noodweer) – whether State excluded self‑defence beyond reasonable doubt given struggle, possible weapon and poor visibility. Criminal law – mens rea – whether murderous intent established. Evidence – reliability and corroboration of prosecution witness; weight of extra‑judicial statements. Assault – insufficiency of evidence to sustain conviction.
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23 November 1976 |
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Condonation refused where trial court credibly found informed consent to the surgical operation and no realistic prospects on appeal.
Condonation — late noting of appeal — prospects of success on appeal assessed by strength of merits and credibility findings; Medical law — informed consent — patient must be advised of nature, risks and realistic prognosis of operation; volenti non fit injuria — defence where informed consent established; Amendment of pleadings — proposed addition of assault allegation would not improve prospects.
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23 November 1976 |
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Appellate court re‑sentenced an employee convicted of statutory corruption, requiring individualized terms and partial suspension.
Corruption — Prevention of Corruption Act 6 of 1958 — sentencing — appellate review of provincial division’s sentencing discretion — only interfere for irregularity, misdirection or unreasonable exercise of discretion — need to individualise sentences for multiple counts according to circumstances — statutory bribery may warrant imprisonment and is not necessarily less serious than common-law bribery.
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23 November 1976 |
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Whether a sub-licensee is deemed an exclusive licensee under s20(9) via s47(7) and thus has locus to sue.
Copyright — exclusive licence — meaning of section 20(9) — section 47(7) deeming acts of grantee to be with licence of grantor — sub-licences treated as exclusive licences — locus standi to seek interdict.
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18 November 1976 |
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Gang leader and two members convicted of prison murder; no extenuating circumstances proven and appeals dismissed.
Criminal law – Murder – Prison killing by gang members – Leadership and participation in organised cell attack established by eyewitness and medical evidence. Criminal law – Extenuating circumstances – onus on accused to establish factual foundation on a preponderance of probabilities; trial court’s finding of absence of extenuating circumstances not disturbed. Evidence – Credibility of self‑confessed gang member witnesses may be accepted where corroborated by objective medical and custodial evidence.
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18 November 1976 |
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Appeal dismissed: identification upheld despite parade irregularities; seven-year effective sentence affirmed.
Criminal law – Identification evidence – Parade irregularities – Single entry/exit, prior discussion and sketch – Whether such defects invalidate parade – Held: defects not fatal in the circumstances. Criminal law – Evaluation of witness credibility – Hesitation and partial lack of candour do not necessarily render identifications unreliable where trial judge’s careful assessment supports them. Sentencing – Effective seven-year sentence not disturbingly inappropriate given planning and deceit.
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18 November 1976 |
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"A/c payee only" on a crossed cheque does not prevent transfer; "not negotiable" makes transfer subject to equities.
Bills of Exchange Act – cheques – crossings – effect of inscriptions between parallel crossing lines – words 'not negotiable' on a crossed cheque render transfer possible but subject to equities (s.80). Banking practice – words 'A/c payee' or 'A/c payee only' on a crossed cheque are not part of statutory crossing and are a direction to the collecting banker, not a prohibition of transfer. Precedent – Dungarvin decision declined where it treats 'A/c payee only' as making a cheque non-transferable.
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16 November 1976 |
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Payments under a partnership death clause were taxable as partners’ gross income, not receipts held on trust for the widow.
Tax law – partnership – construction of clause providing that deceased partner’s widow "shall continue to draw profits" – whether payments are part of partners’ gross income or receivable directly by widow.* Partnership law – death of partner – whether surviving partners acquired goodwill/interests for their own benefit and paid widow from profits or transferred receipts as trustee.* Trust/fideicommissum – contention rejected: payments were contractual profit‑shares, not trust receipts.* Income Tax Act – definition of "gross income"; destination of income after accrual generally irrelevant to taxability.
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16 November 1976 |
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Intoxication mitigated punishment but did not negate intent; murder conviction upheld and death sentence replaced by twelve years' imprisonment.
* Criminal law – Murder v. culpable homicide – dolus eventualis – violent, repeated head injuries and appellant's words supporting intent to kill. Criminal law – Intoxication – may mitigate sentence but does not necessarily negate criminal capacity or reduce murder to culpable homicide. Sentencing – Death penalty substituted by long imprisonment where mitigating circumstances are present
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15 November 1976 |
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Appellant’s admissions and forensic evidence established intent to kill; psychopathic personality did not mitigate, appeal dismissed.
Criminal law – murder versus culpable homicide; circumstantial and forensic evidence; dolus directus/dolus eventualis; psychopathic personality not amounting to mitigating mental disorder; confession and witness evidence corroboration.
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15 November 1976 |
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Eyewitness and medical evidence established the appellant’s direct intent in a prolonged fatal assault; appeal dismissed.
Criminal law – Murder – Prolonged and severe assaults causing death – Eyewitness and medical evidence establishing causation and dolus directus. Intent – Distinction between dolus directus and dolus eventualis; threats and conduct may demonstrate direct intent. Mitigating circumstances – Must be established on probabilities; provocation, illiteracy, or minor assistance (e.g. laxatives) insufficient to reduce moral blameworthiness.
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15 November 1976 |
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Procedural irregularity in admitting confessions was harmless; confessions and identification evidence sustained murder convictions and appeals were dismissed.
Criminal law – admissibility of confessions – voluntariness and procedure – judge’s role in determining admissibility where voluntariness contested; procedural irregularity by involving assessors in preliminary finding not fatal if no prejudice. Identification evidence – reliability of eye-witnesses and corroboration. Common purpose liability – participation and foresight of risk supporting murder conviction.
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8 November 1976 |
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Signing a blank suretyship later completed by others does not satisfy the statutory written-and-signed requirement.
Civil procedure – summary judgment – Rule 32 – bona fide defence – signing in blank – statutory requirements for written suretyship under s.6 General Law Amendment Act – terms of suretyship include identification of parties – incorporation by reference of annexed lease.
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5 November 1976 |
| October 1976 |
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A wife need not pre-qualify under s10(1)(c) before a local residential permit enables her to remain as a dependant.
Administrative law/Influx control; Bantu (Urban Areas) Consolidation Act 25/1945 s10(1)(c); Alexandra Township Regulations (Administrator’s Notice 760 of 1964) — residential permits and dependants; interplay between local residential permits and endorsement/qualification to remain in prescribed areas.
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1 October 1976 |
| September 1976 |
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Solicitor held liable for negligent advice/drafting on ultra vires guarantees; damages reduced for probable insolvent dividend.
Professional negligence — solicitor’s duty to investigate third‑party capacity and to disclose uncertainty to client; standards of care. Suretyship/guarantee — interpretation of documents; whether obligations are accessory or self‑standing co‑principal obligations. Ultra vires — whether a registered friendly society may give guarantees under its rules and statutes (Act No.25/1956 and related provisions). Formal validity — consequences of execution/completion of documents in incomplete form and statutory formalities (Act No.50/1956). Causation and quantum — assessment of loss where debtor insolvent; allowance for probable dividend. Costs — apportionment where appellant partly successful on a new ground in appeal.
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29 September 1976 |
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Appeal dismissed: convictions and cumulative sentences for corruption in issuing driver competency certificates upheld.
Criminal law – corruption – licensing official accepting overpayments for issuing driver competency certificates – credibility of witnesses – whether multiple acts form one continuous course of conduct – sentencing and cumulative punishments.
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29 September 1976 |
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Costs de bonis propriis against a judicial officer require mala fides; mere legal error or poor judgment is insufficient.
Criminal procedure — Insanity/mental condition raised at trial — medico-psychiatric evidence required (S v Mahlinza) — Judicial officers — costs de bonis propriis — generally not awarded; permissible only where officer acts mala fide or becomes party to merits — State not liable for magistrate's erroneous judgment on review.
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28 September 1976 |
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Insurer failed to prove non-receipt of broker’s pre-policy disclosure; appeal dismissed with costs.
Insurance law — Non-disclosure — duty to disclose accidents of related-party vehicles; Evidence — parol and written communications — incorporation by proposal declaration; Onus — insurer must prove non-receipt of pre-policy disclosure; Credibility — appellate restraint on overturning trial credibility findings.
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28 September 1976 |
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On probabilities and witness credibility, the court found the Zephyr’s unexpected rightward movement caused the collision; appeal allowed.
Motor collision — negligence — credibility and probability assessment of conflicting eyewitness accounts — sudden swerve into traffic — absolution from instance set aside.
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28 September 1976 |
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Clause requiring lessee to "get in touch" before a date was an agreement to negotiate, not an enforceable option to renew.
Contract law — lease renewal clause — whether wording creates an enforceable option or merely an agreement to negotiate (agreement to agree); interpretation of uncertain contractual conditions; consequence that non-binding renewal clauses do not confer enforceable renewal rights.
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28 September 1976 |
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Whether delay by police in summoning medical aid and arranging transport causally caused a detainee’s death.
Police custody – duty to detainees – prompt medical attention required when serious illness/injury suspected; negligence for delay in summoning doctor/ambulance; causation in delict – application of the conditio sine qua non (but‑for) test and burden of proof where time‑sensitive medical prognosis governs outcome.
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27 September 1976 |
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Admissibility of prior statements and memory‑refreshing police notes; conviction upheld for nine cattle, sentence reduced to fine.
Evidence — prior consistent statements — admissibility as exception where witness accused of recent invention; evidence — refreshing memory from police notes and effect thereof; criminal law — proof of number of stolen items; sentencing — substitution of fine for imprisonment where circumstances mitigating.
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24 September 1976 |
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Appellate court found the intermediary was the buyer's agent; seller absolved and appeal upheld with costs.
Agency – determination whether intermediary acted for seller or buyer; misrepresentation and imputing agent’s statements to principal; non-disclosure/fraud – reliance on principal’s knowledge; contractual commission clause not determinative of agency.
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24 September 1976 |
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Demountable office partitions are "articles" deductible under s.11(e) unless permanently integrated into the building.
• Tax — Income Tax Act s.11(e) — depreciation allowance for "machinery, implements, utensils and articles" — scope of "articles". • Tax — proviso excluding "buildings or other structures or works of a permanent nature" — test of permanent integration into building (nature/mode of attachment, removability, loss of separate identity, owner’s intention). • Tax — movable office partitions — when they remain articles eligible for wear-and-tear allowances. • Evidence — factual inquiry and appellate restraint on factual findings.
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24 September 1976 |
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Appellate court upheld respondent’s judgment: employer liable for servant leaving unlit road roller obstructing tar; appeal dismissed.
Delict — motor collision — liability of employer for servant’s negligence — credibility of witnesses and evaluation of contemporaneous scene measurements — onus to prove contributory negligence — warning devices on immobilised machinery on roadway.
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23 September 1976 |
