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Citation
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Judgment date
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| December 1977 |
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Appellant failed to prove driver negligence; appellate court upheld dismissal and costs.
Motor-vehicle negligence – pedestrian struck by passing lorry – foreseeability and causation; credibility assessment of eyewitness versus driver; sufficiency of evidence to discharge plaintiff's onus.
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29 December 1977 |
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Sentence appeal dismissed; no misdirection on premeditation or complainant's character.
Criminal law – assault with intent to commit rape – alleged misdirections on premeditation and complainant’s character – appellate interference with sentence – credibility findings and assessment of evidence.
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8 December 1977 |
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Appellate court upheld conviction, finding trial judge properly assessed eyewitness credibility and rejected the alibi.
Criminal law – murder – credibility assessment of eyewitness testimony; inconsistencies and intoxication not automatically fatal – alibi evidence – burden and assessment of 'reasonably possible' alibi; appellate review of trial judge’s demeanour findings.
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2 December 1977 |
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Conviction set aside where court improperly handled late court‑called witnesses and failed to weigh a credible alibi.
Criminal procedure — section 210 recall/calling of witnesses by court; alibi evidence — burden and testing of State's case on probabilities; weight of lay accused's failure to cross‑examine; prosecution duty to investigate and call material witnesses; sufficiency of identification evidence.
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2 December 1977 |
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Reported
Driver held solely negligent; appellate court reduced capitalised loss-of-earnings for excessive contingencies.
Motor-vehicle collision – negligence – driver failed to keep proper lookout – sole cause established. Appellate review – credibility findings and trial court discretion on general damages – limited interference. Damages – actuarial capitalisation of past and future earnings – appropriate contingency allowance; appellate adjustment. Costs – disallowance of costs for unnecessary record pages; leave to apply for variation on good cause shown.
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1 December 1977 |
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Carrier’s appeal dismissed; damages for destroyed goods upheld where acceptance was not proved and magistrate’s valuation was sustainable.
• Carriage of goods – carrier’s liability – contract of carriage and delict – damaged goods left on delivery.• Acceptance of delivery – conduct insufficient to infer approbation where evidence inconclusive.• Quantum of damages – magistrates’ court may tolerate less precision, but obvious and necessary evidence must be led; slender evidence may suffice if credible.
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1 December 1977 |
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Retiring partner entitled to half of partnership goodwill; goodwill valued by super‑profits method with multiplier and adjustments.
Partnership law — dissolution — actio pro socio and utilis actio communi dividundo as remedies to obtain distribution of partnership assets (including intangible goodwill); valuation of goodwill — super-profits method and choice of multiplier; effect of absence of formal lease/security on goodwill value; adjustment for opening goodwill and competitive contingencies.
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1 December 1977 |
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Belief in witchcraft does not mitigate murder absent evidence of genuine compulsion or mental impairment.
Criminal law – murder – alleged ritual motive and cultural/witchcraft beliefs – cultural belief not mitigating absent evidence accused acted under a genuine, compelling compulsion or mental impairment; psychiatric evidence speculative; trial court’s finding of no extenuation upheld
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1 December 1977 |
| November 1977 |
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Condonation for a long-delayed appeal against sequestration refused due to attorney’s remissness and applicant’s lack of diligence.
Civil procedure – Condonation (Rule 13) – gross and inordinate delay in noting and prosecuting an appeal against sequestration – factors: length and cause of delay, prospects of success, prejudice, public and creditors’ interest in finality; attorney’s negligence not a complete exoneration for applicant.
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30 November 1977 |
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Court lacked jurisdiction to grant leave on conviction; sentence reduced to five years with almost full suspension due to trivial, drunken jest.
Criminal procedure – appeal jurisdiction – sections 362 and 363 Criminal Procedure Act – leave to appeal against conviction must be sought separately; court may not grant leave it lacks jurisdiction to confer. Statutory offences – Civil Aviation Offences Act s.2(f) read with s.2(c) – false allegation of bomb on aircraft – mandatory minimum sentence of five years. Sentencing – misdirection on seriousness permits appellate interference; mandatory minimums limit suspension of sentence.
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30 November 1977 |
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Appellate court set aside sentence after lower courts improperly relied on unproved unrelated conduct in sentencing.
Criminal law – Sentencing – Misdirection where courts take into account unproved, unrelated criminal conduct – vitiates sentence; appellate court at large to substitute sentence; theft of unwrought gold by employee in position of trust an aggravating factor; suspended imprisonment as appropriate deterrent.
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30 November 1977 |
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A post-litis-contestation cession generally transfers only the spes and does not divest the plaintiff of locus standi without court substitution.
Civil procedure; litis contestatio — post-litis cession — distinction between transfer of actio and transfer of spes; substitution of cessionary; salvo jure tertii; locus standi of cedent to continue prosecution.
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30 November 1977 |
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Whether injuries arose out of driving and apportionment of negligence where intoxicated passenger fell from an open lorry.
Compulsory Motor Vehicle Insurance Act s 21 – "caused by or arising out of the driving" – causal connection where passenger falls while vehicle in motion; Negligence – driver’s duty to take precautions when allowing intoxicated passenger on open flat‑bed; Contributory negligence – intoxicated passenger who moves about on moving vehicle; Quantum – appellate restraint unless startling disparity; Costs – successful plaintiff may be deprived of costs for dishonest pleadings/evidence.
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29 November 1977 |
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Proceeds from sale of livestock after transfer to a company were taxable income; mere change of intention did not make them capital.
Tax — income v capital — sales proceeds of livestock sold after transfer to company — whether proceeds gross income or capital — application of s.26 and First Schedule (paras 2–3) after taxpayer ceased farming — change of intention insufficient to convert circulating/trading capital into fixed capital — deduction of acquisition cost under s.11(a).
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29 November 1977 |
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Driver found causally negligent; appellant failed to prove respondent’s contributory negligence; damages upheld.
Motor-vehicle collisions — driver blinded by oncoming lights — duty to reduce speed/stop — causal negligence; contributory negligence — burden on defendant to prove pedestrian was in roadway; point of impact — trial court may determine location on overall probabilities; damages — appellate interference only where no sound basis for trial award.
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29 November 1977 |
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Refusal to separate trials upheld; corroborated accomplice evidence sustained convictions and death sentences.
• Criminal procedure – section 155 discretion to order separate trials – Zonele inapplicable where plea of guilty was not accepted by court – appellate interference limited to irregularity/misdirection or unreasonableness and showing of failure of justice (s369(1)). • Evidence – accomplice confession and corroboration by independent witnesses and recovery of weapon; admissibility of preparatory-examination deposition under s243. • Sentencing – bewitchment/psychological influence insufficient to establish extenuation absent psychiatric corroboration.
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29 November 1977 |
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Whether the appellant was conveyed in the driver’s business under section 23 of the Compulsory Motor Vehicle Insurance Act.
Compulsory Motor Vehicle Insurance Act s23(b)(i)–(ii) — definition/exclusion of "reward" — Motor Carrier Transportation Act conflict; scope of "in the course of the driver’s business" — nexus test between conveyance and driver’s business — condonation for late security for costs — appeal dismissed.
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28 November 1977 |
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Whether possession of stored machinery was restored to the owner and who bore the onus of proving restoration.
Property/possession – physical control of goods – taking and relinquishing occupation of leased storage yard; restoration of possession. Burden of proof – owner need only prove ownership and that defendant holds the res; defendant must plead and prove any right to continue holding or proof of restoration if relied upon. Civil procedure – application to adduce fresh evidence under s22(a) Act 59 of 1959; procedural practice and affidavits (Shein v Excess Insurance) considered but not fatal. Evidence – assessment of credibility and probabilities in conflicting witness accounts; appellate review of factual findings.
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28 November 1977 |
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Admissibility of confessions, interpreter/hearsay limits, and confirmation of convictions and death sentences for three appellants.
* Criminal law – admissibility of confessions – voluntariness – assault, undue influence, persistent questioning and trickery considered. Evidence – confessions recorded by investigating officers versus magistrates; undesirable but not automatically fatal to admissibility. Evidence – use of interpreters; statements communicated through an interpreter not proved to have been accurate constitute hearsay and must be excluded. Criminal law – circumstantial and eyewitness evidence, recovery of stolen money, firearms and vehicle corroborating confessions. Sentencing – absence of extenuating circumstances; death penalty upheld for principal offenders
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28 November 1977 |
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Longstanding domestic humiliation and loss can constitute extenuating circumstances reducing moral blameworthiness and sentence.
Criminal law – Murder – Extenuating circumstances – Provocation – events remote in time may be relevant if directly related to accused’s moral blameworthiness – Onus on accused to prove extenuation but need not give further evidence if foundation of probability exists – Sentence substitution.
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28 November 1977 |
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Uncertain preliminary plea and inadequate circumstantial evidence overturned convictions for appellant one; sentencing procedure corrected for other counts.
Criminal law – admissibility and reliability of guilty plea at preliminary inquiry (form J16); circumstantial evidence standards; sentencing discretion – requirement to hear submissions before imposing concurrent or additional sentences; death penalty – assessment of mitigating circumstances.
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28 November 1977 |
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Death sentence replaced by 18 years’ imprisonment where sentencing court insufficiently weighed provocation and limited prior custody.
Criminal law – Murder – Sentence – death penalty; mitigation – youth and intoxication; provocation and victim’s conduct; antecedents and actual custody served; appellate interference with sentence.
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25 November 1977 |
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Appellate court upheld ten-year sentence for murder despite extenuating psychiatric factors, finding sentence not unreasonable.
Crime — Murder — Extenuating circumstances established by psychiatric evidence (diminished responsibility) — Aggravating factors (history of violence, use of child as instrument) — Sentencing discretion — appellate interference only if sentence unreasonable.
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25 November 1977 |
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Application to remit for further mitigation evidence failed; sentencing appeal dismissed for lack of merit.
Criminal law — appeal against sentence — application to remit for further evidence on appeal — requirements for reopening evidence (explanation for non-production, prima facie truth, material relevance) — psychiatrist’s evidence must relate to conduct on day of offence — sentencing: previous convictions, rehabilitation, deterrence, and excessiveness.
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25 November 1977 |
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Section 83(1) requires examination before the magistrate who issued the subpoena; s.212(1) inapplicable otherwise.
Criminal procedure — s.83(1) subpoena — wording "before him" requires attendance before the magistrate who issued the subpoena; statutory construction — effect of predecessor and successor provisions; s.83(2) deeming provision — s.212(1) applies only where examination is authorised by s.83(1).
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25 November 1977 |
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Applicant's challenge to set aside settlement failed: no actionable fraud or justus error by respondents.
• Commercial law – Compromise (transactio) – settlement of disputed accounts – nature and finality of transactio; rescission grounds (fraud, justus error).
• Contract/misrepresentation – express representation and production of reconciliation documents – when production/silence constitutes actionable misrepresentation or concealment.
• Mistake – mutual and unilateral (justus) error – requirement that error be material to consent to compromise.
• Civil procedure – amendment of pleadings – discretion to refuse late amendments after evidence led.
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22 November 1977 |
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Whether a police officer’s shooting of a fleeing suspect without warning was justified under statutory and common-law standards.
Criminal Procedure Act (1955) s.36, s.37 – use of force in arrest – statutory protection for killing in specified offences – whether serious non-fatal injury can be lawful – common-law reasonableness standard – warning shot and necessity – burden of proof in civil delict pleading statutory justification
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21 November 1977 |
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Appeal struck where reserved question of law did not meet statutory requirements; R v Adams' construction upheld.
Criminal procedure — Reservation of questions of law — Jurisdiction of appellate court when a question is reserved — Limits on prosecutor's right to seek reservation (R v Adams) — Indictment particulars and nullity determinations.
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21 November 1977 |
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Defendant must prove prescription; "identity" requires name/address and creditor must exercise reasonable care to discover it.
Prescription – Prescription Act 68 of 1969 s 12(3) – commencement of prescription for delictual debts requires knowledge of facts and identity of debtor – "identity" means name/address sufficient for service – onus of proof of special plea of prescription lies on defendant – creditor deemed to have knowledge if could have obtained it by reasonable care.
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20 November 1977 |
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Psychopathy and prison-subculture evidence did not mitigate premeditated prison murder; appeals dismissed.
Criminal law – murder in prison – multiple stab wounds with pre-sharpened instrument; credibility of prisoner witnesses and prison officials. Psychiatric evidence – psychopathy and prison subculture – assessment of whether these constitute mitigating circumstances. Appellate review – standard for interfering with trial court findings on mitigation: misdirection, irregularity or conclusions no reasonable tribunal could reach.
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18 November 1977 |
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Implied term refusing to suspend contractual time failed; delivery order set aside; costs apportioned for mixed success.
Contract — implication of terms — business efficacy and necessity tests — Court unwilling to imply term suspending running of fixed period until ‘proper’ supply; specific performance — authority/mandate ended so order for delivery set aside; delivery/tender and acceptance — creditor’s refusal does not necessarily absolve debtor where debtor thereafter affirms contract; costs — apportionment for mixed success and unnecessary prolongation.
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15 November 1977 |
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Appeal dismissed: evidence supported intent to kill by appellant no. 1 and appellant no. 2 was guilty as co‑perpetrator, not merely compelled.
* Criminal law – murder and robbery – proof of dolus directus and, alternatively, dolus eventualis – evidence and credibility assessments.* Criminal liability – distinction between accessory after the fact and co‑perpetrator (socia criminis/medepligtige) – conduct establishing participation.* Duress/fear – requirements for excuse or mitigation and assessment against contemporaneous conduct.* Sentencing procedure – probation officer’s report delays and trial judge’s discretion to proceed.* Appeal – scope of appellate interference with credibility findings and discretionary sentencing decisions
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15 November 1977 |
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Appellants’ convictions for murder and robbery upheld where credible eyewitness evidence supported common intention; rape not proved beyond reasonable doubt.
Criminal law – evidence and credibility – acceptance of child witness; Criminal law – common purpose – when joint participation permits inference of common intention to commit fatal violence; Criminal law – rape – requirement that sexual intercourse must be proved to have occurred before death to sustain conviction; Sentence – death penalty – appellate review of trial court’s finding of absence of mitigating circumstances.
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14 November 1977 |
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Death sentence upheld for applicant who led planned armed robberies posing a real risk of lethal violence.
Criminal law – sentencing – discretionary imposition of death sentence – appellate interference only for misdirection, irregularity or unreasonable exercise of discretion; Criminal law – leadership and participation in organised armed robberies – aggravating factor; Evidence – attempted murder and use of hardened gunmen as justification for extreme sentence; Mitigation – denial of complicity and absence of remorse relevant to rehabilitation assessment; Absence of actual injury not determinative where lethal risk was present
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14 November 1977 |
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Court set aside convictions and death sentence due to unsafe credibility findings and conflict with medical evidence.
Criminal law – Appeal – safety of conviction – appellate intervention where trial court misassessed credibility and overlooked conflicts between medical and eyewitness evidence. Criminal evidence – medical (post-mortem) evidence inconsistent with eyewitness accounts – significance for reliability of identification and guilt. Alibi – accused’s alibi not disproved; court must not rely on speculative inferences to reject it. Credibility – demeanour findings insufficient when other objective discrepancies remain unexplained.
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14 November 1977 |
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Death sentence set aside where mitigating domestic provocation outweighed aggravating factors; substituted twelve years’ imprisonment.
Criminal law – Sentencing – Trial court’s discretion in imposing death sentence where mitigating circumstances found – appellate interference where sentencing exercise is inconsistent or capricious; Mitigation – domestic dispute, provocation and brief loss of self‑control as relevant mitigating circumstances; Aggravation – cruelty of attack and previous conviction; balancing of factors in capital cases.
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14 November 1977 |
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Appellate reduction of a disturbingly disparate sentence where trial judge over‑emphasised appellant’s leadership role.
Criminal law – sentence – disparity among co-offenders – appellate interference where disparity is disturbing and degrees of participation comparable; sentencing for multiple rapes – leadership role as aggravating factor but must be measured against other participants; appellate substitution of sentence where trial judge over-emphasised leadership.
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14 November 1977 |
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A defective summons against a non-debtor does not interrupt prescription of a surety’s accessory obligation.
Prescription — rent under a lease — s.3(2)(c)(iv) of Prescription Act 1943 — three-year period applies; Suretyship — signing as "co-principal debtor" remains accessory; Service of process — s.6(1)(b) interruption requires process to enforce the same or substantially the same right; defective or non-existent cause of action does not interrupt prescription.
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11 November 1977 |
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Appellate court held alcoholism and mitigating factors warranted wholly suspending sentence for attorney’s trust-fund theft after sentencing misdirection.
Criminal law – Theft by attorney – Misappropriation of trust funds – Sentencing – Mitigation based on alcoholism and rehabilitation – Trial court’s misdirection by unduly restricting discretion to suspend sentence – Appellate substitution of wholly suspended sentence.
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4 November 1977 |
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Court convicted the applicant as vehicle driver on credible identification evidence and sentenced him to six months' imprisonment.
Criminal law – identification evidence – credibility assessment of eyewitness identification – weight of inconsistent defence testimony – driving under influence – sentence of six months' imprisonment without option of fine.
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1 November 1977 |
| October 1977 |
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Appeal court erred in displacing magistrate’s credibility findings; respondent negligent entering tarroad, appellant entitled to damages.
Road traffic — collision at junction — credibility of witnesses and distance estimates — appellate court’s duty to respect magistrate’s findings on credibility — negligent entry from gravel shoulder onto tarroad — no contributory negligence established.
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14 October 1977 |
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Court rejects drug‑induced insanity defence and upholds both appellants' convictions and sentences.
Criminal law – alleged drug‑induced insanity (LSD) – proof and credibility; psychopathy and intoxication – diminished responsibility vs. intent; extenuating circumstances in murder sentencing; common purpose and participation in murder; effect of new Criminal Procedure Act on pending proceedings (s344(3)).
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13 October 1977 |
| September 1977 |
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Administrator’s widening notice was ultra vires because it in substance authorised creation of new roads, not mere enlargement of an existing reserve.
Roads and road reserves — Road Ordinance 1957 — article 3 limited to altering width of already-declared road reserves — creation of new service roads (on-/off-ramps) constitute 'roads' requiring proclamation under article 5 — ultra vires action reviewable; procedural distinctions between padraad and Administrator investigations; costs restraint for unnecessary two counsel and irrelevant interlocutory filings.
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30 September 1977 |
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Condonation for late appeal refused where petition was defective and proposed appeal had no reasonable prospects of success.
Civil procedure — Condonation for late noting of appeal — Petition defective for failure to give particulars of delay and to address merits as required by Rules 3(5),(6) and 3bis — Condonation discretionary and requires reasonable prospects of success — Trial court credibility and probabilities upheld in road-accident delict; no prospects of success — Application for condonation refused with costs (including costs of appeal).
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30 September 1977 |
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Psychopathy alone does not excuse; reduced moral blameworthiness requires substantial diminution of self‑control, which was not proved.
* Criminal law – murder – sentence – extenuating circumstances – psychopathy and sexual perversion do not per se mitigate; test is whether psychopathic disorder so weakened wilsbeheervermoë that moral blameworthiness was diminished. Evidence – psychiatric evidence must be assessed with other factual indicators (diaries, prior conduct, incidents of desistance). Appeal – appellate interference only where trial court’s finding on extenuation is vitiated by misdirection, irregularity or is one no reasonable court could reach
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30 September 1977 |
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Whether company lost profits can directly quantify diminution in purchaser’s share value and effect of Prescribed Rate of Interest Act.
Contract — measure of damages — sale of shares — normal measure is adverse difference between notional (warranty-complied) and actual value of shares — alternate measures require justification and proof. Contract — warranty as to existence of third‑party supply contract — lost profits of company not automatically equated with diminution in purchaser’s share value. Evidence — burden on claimant to prove comparative values or to justify alternative yardstick. Interest — Prescribed Rate of Interest Act 1975 applies from commencement (16 July 1976), not retrospectively; interest apportioned accordingly. Costs — successful party entitled to costs including those for two counsel where justified.
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29 September 1977 |
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An oral promise made amid incomplete negotiations did not constitute a concluded contract, and damages were not proven.
Contract — Formation — Whether an oral promise made during ongoing negotiations constituted a concluded contract; certainty of terms and subject‑matter; necessity of lessee’s consent to sale; proof of damages — admissibility and sufficiency of valuation evidence (expert qualification and identification of goods).
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29 September 1977 |
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Withheld trust income withheld until stipulated events is deemed the donor’s income under section 7(5).
Tax law – Section 7(5) Income Tax Act – Deeming of trust income as donor's income where beneficiaries' receipt is postponed by stipulated events – Trustee discretion to withhold and capitalise income does not prevent deeming – Application of Estate Dempers.
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29 September 1977 |
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Whether divided subletting and a clothing retailer are "diametrically opposed" to a supermarket use, and whether cancellation complied with lease notice clause.
Lease cancellation — requirement of clause 18 (notice and seven-day opportunity to remedy) for lawful cancellation; Consent to sublet — interpretation permitting nomination and subdivision into separate shops; "diametrically opposed to" test — whether non-grocery retail uses conflict with supermarket use; ambiguities construed against lessor alleging breach.
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27 September 1977 |
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Whether company’s land sale profit was income or capital; majority held sale proceeds taxable as income.
Tax law – Characterisation of sale proceeds as income or capital; change of intention and "crossing the Rubicon"; imputation of directors/shareholders’ policy to company; onus on taxpayer to prove capital nature; significance of memorandum clause treating realisation proceeds as capital.
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27 September 1977 |
