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Citation
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Judgment date
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| December 1978 |
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Driver of vehicle containing dagga presumed to have dealt in drugs unless he rebuts that presumption on a balance of probabilities.
* Criminal law – Drug offences – Statutory presumption s.10(1)(e) where drugs found in vehicle – presumption raises evidential burden on accused to rebut on balance of probabilities; mens rea (dolus) required for dealing offences
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22 December 1978 |
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Conviction shifted from negotiable-instrument offence to unlawful export transaction; imprisonment partly suspended.
Exchange control – Regulation 3(1)(d) – meaning of "consideration" and whether drawing/negotiating a bank cheque creates/transfers a right as quid pro quo for payment or acquisition outside the Republic. Exchange control – Regulation 10(1)(c) – entering into a transaction whereby capital is exported; attempt and preparation. Criminal law – circumstantial evidence and mens rea – when only reasonable inference supports guilty knowledge. Sentencing – balancing deterrence/retribution and personal circumstances; suspension of imprisonment.
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1 December 1978 |
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Conviction for refusing to testify upheld; sentence set aside and reduced because of sentencing misdirection.
Criminal procedure – witness refusal to give evidence after being sworn – application and meaning of section 189(1) Criminal Procedure Act. "Sufficient excuse" for refusing to testify – extent of judge's duty to explain or probe conscientious objections. Trial irregularity – when brief questioning amounts to unfair trial or nullity. Sentencing – misdirection where judge treats personal circumstances as irrelevant and misunderstands section 189(3).
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1 December 1978 |
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Appellant failed to prove genuine change of heart; offer to restore conjugal rights was insincere and appeal dismissed with costs.
Family law — Restitution of conjugal rights — onus on defendant to prove genuine change of heart on balance of probabilities; continuing abusive conduct defeats offer; discretion to extend return day not exercised where behaviour persists.
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1 December 1978 |
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Appellate court substituted an unduly harsh custodial sentence with fine and suspended term conditioned on restitution.
Criminal law – Sentencing – Interference on appeal where sentence is unduly harsh or prevents restitution – Substitution of sentence to permit compensation by instalments; fine with imprisonment alternative; suspended imprisonment conditional on restitution.
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1 December 1978 |
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Appellate court reduces a disproportionate 15-year rape sentence to 8 years given mitigating circumstances.
Criminal law – Rape – conviction upheld where complainant credible and consent rejected – Sentencing – appellate interference where sentence is strikingly disproportionate – Prior convictions aggravating but mitigating factors (complainant’s conduct, limited physical injury, partial penetration) justify reduction – Sentence reduced from 15 to 8 years.
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1 December 1978 |
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Conviction for racially abusive crimen injuria upheld; six-month prison sentence reduced to a fine and suspended term.
Crimen injuria – obscene and racially denigrating language – impairment of dignity. Sentencing – consideration of aggravating (racial insult in public) and mitigating factors (first offender, family responsibilities, employment). Appellate review – robust judicial language not necessarily a misdirection. Substitution of excessive imprisonment with fine and suspended sentence.
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1 December 1978 |
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Finding of refusal upheld; sentencing misdirected — sentence reduced to 18 months.
Criminal procedure – s 189(1) CPA – refusal to testify – meaning of refusal where witness before questions states he will not give evidence – requirement to explain 'sufficient excuse' – extent of judicial inquiry into conscience-based refusal – sentencing procedure under s 189 and misinterpretation of s 189(3).
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1 December 1978 |
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Main conviction under Regulation 3(1)(d) set aside; conviction substituted under Regulation 10(1)(c); fine upheld, imprisonment suspended.
Exchange control – Regulation 3(1)(d) and negotiable instruments – meaning of ‘consideration’ and creation/transfer of rights – Regulation 10(1)(c) – attempt/transaction to export capital – circumstantial evidence and mens rea – trap operations and admissibility.
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1 December 1978 |
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Respondent failed to prove insured driver’s negligence; trial court erred in preferring his contradicted evidence over credible eyewitness testimony.
Motor-vehicle collision — onus of proof — assessment of credibility — contradictions in plaintiff’s evidence — police plan and alleged indication of point of impact by witness treated as unreliable/hearsay — distribution of broken glass and resting positions of vehicles insufficient to fix point of impact — absolution from the instance ordered.
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1 December 1978 |
| November 1978 |
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Appellate court upheld trial credibility findings and dismissed appeal against 70/30 contributory-negligence apportionment.
Appeal — appellate review of factual and credibility findings — limited interference; Contributory negligence — apportionment 70/30; Motor-vehicle accident — failure to keep proper lookout — roadside vegetation and visibility.
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30 November 1978 |
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Failure to give the statutory 14‑day notice under s311(4) barred the claim against the ship agent; appeal dismissed with costs.
Merchant Shipping Act s311(4) – agent's undertaking – statutory notice requirement; notice must be given to the person sued and indicate claim against the agent; 'Note of Protest' and vague oral statements insufficient as statutory notice; failure to give notice within 14 days bars recovery against agent.
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30 November 1978 |
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The appellant's final payment claim failed because the lift was not freely handed over and extras were released by accepted payment.
Building contracts – exceptio non adimpleti contractus – delivery and handover — subcontractor’s right of retention disabling essential work (lift) prevents claim for final payment; payments/letters may discharge liability for extras; transformer for air-conditioning held part of contract, not extra.
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30 November 1978 |
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30 November 1978 |
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Appellate court refuses to disturb custodial sentence for systematic, large‑scale theft; no misdirection or excessive punishment found.
Criminal law – Sentencing – Appellate restraint – Appeal court will interfere only for misdirection, irregularity or manifestly excessive sentence; sentencing factors – position of trust, enticement, recovery of property, and scale/series of thefts weighed; custodial sentence upheld for systematic large‑scale theft.
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30 November 1978 |
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Importation of dagga into the Republic for personal use constitutes "dealing in" under s.2(a); convictions reinstated.
Statutory interpretation – definition of "deal in" – whether "importation" requires commercial purpose – held: not limited to commercial transactions; non-commercial importation of dagga falls within s.2(a). Reliance on prior authority (S v Gibson; S v Guess) confirming inclusive construction of acts enumerated in definition. Amendment to sentencing (Act 76 of 1978) not applicable retrospectively on appeal.
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30 November 1978 |
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Introduction of dagga for personal use constitutes 'dealing in' under section 2(a); 'importation' is not limited to commercial activity.
Criminal law – Drugs – Definition of 'deal in' (s 1(iv)) – 'Importation' not limited to commercial transactions; introduction of dagga for personal use falls within s 2(a). Statutory interpretation – Afrikaans 'invoer' does not restrict meaning to commerce. Sentencing – post‑conviction amendment not applicable on appeal to reduce sentence that was not competent at conviction.
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30 November 1978 |
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Whether identification evidence proved guilt beyond reasonable doubt; two convictions upheld, two overturned.
Criminal law – Identification evidence – Credibility and inconsistencies of eyewitnesses – Prima facie proof – Incitement and principal offender – Sufficiency of evidence for convictions of bystander conduct (brick‑throwing).
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30 November 1978 |
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Appellate court upholds imprisonment for systematic high‑value theft; no misdirection in trial court’s sentencing discretion.
Criminal law – sentence – appeal – appellate interference only where sentencing court misdirected or imposed manifestly unreasonable sentence; imprisonment vs fine – imprisonment appropriate for systematic, high‑value thefts; sentencing considerations – mitigation, recovery of property, role of co‑conspirators, and deference to trial court discretion.
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30 November 1978 |
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Appeal allowed: State failed to prove appellant subjectively believed received medicines were stolen; conviction set aside.
Criminal law – Attempted theft – requirement of animus furandi (subjective belief that goods are stolen) – proof beyond reasonable doubt. Criminal law – Impossibility and attempts – mistake of law under R v Davies: a putative crime may negate attempt liability. Evidence – absence of owners’ testimony and representatives’ discretionary distribution weakens theft proof. Charge selection – receiving stolen property vs theft.
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30 November 1978 |
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A court must not offer a fine in lieu of imprisonment that is manifestly beyond the applicants' means.
Sentencing – Fine in lieu of imprisonment – Court must not impose a fine manifestly beyond accused’s means. Sentencing procedure – Duty to inquire into offender’s financial resources before fixing a fine option. Remedy – Setting aside sentence and remitting for resentencing where fine-option is illusory.
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30 November 1978 |
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Whether comparable sales and development potential raise market-value compensation for expropriated land; appeal increases award.
Expropriation law – valuation – market value assessed by reference to comparable sales, including contemporaneous expropriation prices and nearby sales shortly before/after date of expropriation. Evidence – admissibility and weight of comparable transactions; a sale prima facie bona fide unless abnormal features proved. Valuation – characterization of the notional willing buyer (farmer v. speculator/investor) must reflect realistic market conditions. Onteieningswet s.8(4)(f) – increases in value linked to public works/municipal planning cannot be excluded where public and municipal actions are intertwined.
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30 November 1978 |
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Both rider and driver were negligent; damages apportioned 50/50 and appeal succeeds with costs (condonation costs to appellant).
Delict — negligence — motorist emerging from private exit — duty to look for and guard against reasonably foreseeable sidewalk users (not limited to pedestrians). Illegality of injured party’s use of sidewalk does not alone absolve motorist of duty of care. Apportionment of damages — equal division (50/50) where both parties negligent. Procedure — late noting of appeal condoned; costs of condonation awarded against appellant.
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28 November 1978 |
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A motorist exiting a blind yard must take precautions; unlawful sidewalk use by a moped does not absolve the motorist—damages apportioned 50/50.
Delict – Road traffic – Duty of driver exiting premises across a sidewalk – driver must take proper lookout and precautions even if sidewalk use by vehicles is unlawful. Road Traffic Ordinance – unlawful use of sidewalk by motorised bicycle does not absolve motorist from duty of care when crossing sidewalk. Apportionment of Damages Act 34 of 1956 – contributory negligence – equal (50/50) apportionment where both parties culpable. Procedural – condonation for late noting of appeal may be granted to determine merits, but costs of condonation may be awarded against late appellant.
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28 November 1978 |
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Receiver’s rejection of bank claims partly upheld: security/guarantee as prohibited financial assistance invalidated the second loan, first loan valid.
Companies Act s86 bis(2) – financial assistance – guarantees and security can constitute prohibited financial assistance even without impoverishment; agreements to give such assistance void; severability and integrality of guarantees in loan transactions.
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28 November 1978 |
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Appellate court upheld trial judge’s credibility findings and dismissed insurer’s appeal; eyewitness evidence and calculations supported the verdict.
Evidence — Credibility — Appellate court reluctant to disturb trial judge’s findings on oral testimony. Motor collision — Determination of who ran a red robot light — use of eyewitness evidence. Estimation of speed/distance — mathematical calculation as a check on oral estimates, applied with caution. Contributory negligence — duty to look notwithstanding a green light and apportionment of 20% not disturbed.
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27 November 1978 |
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Whether mitigating circumstances under s 335A justified departing from the statutory mandatory sentence for serious, planned frauds.
Criminal law – Sentencing – Fraud – Compulsory sentence under s 334 ter(2) – Application of s 335A (circumstances justifying lighter sentence) – Mitigating factors (restitution, family hardship, financial difficulty) weighed against aggravating factors (prior convictions, premeditation, large amounts).
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27 November 1978 |
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Appellant's restitution and family hardship insufficient to outweigh aggravating features and prior convictions; mandatory sentence upheld.
Criminal law – Sentencing – Mandatory punishment under s.334 ter(2) – s.335A enabling lighter sentence where circumstances justify – relevance and weight of restitution, family hardship and prior convictions in sentencing discretion.
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27 November 1978 |
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Rectification granted to reflect common intention excluding 454,89 morgen; purchaser ordered to ensure transfer to the State, with costs.
Contract — Rectification — Common intention and mistake — balance of probabilities standard; Ancillary relief — specific performance/obligation to effect transfer to third party; Company law — enforceability of ruilkontrak against company and ultra vires plea; Evidence — credibility findings and inspection evidence; Joinder — non-joinder of State where State aware and accepts judgment.
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24 November 1978 |
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Conviction based on police trap and supporting circumstantial evidence upheld despite imperfections in trap testimony.
Criminal law – police traps – trap evidence to be approached with caution but admissible; single-trap witness may be corroborated by circumstantial evidence; evidence of instructions to trap to approach particular person relevant and admissible; matching banknotes and pointing out by co-accused furnish corroboration; conviction upheld where cumulative probabilities establish guilt beyond reasonable doubt.
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24 November 1978 |
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Police-trap evidence, though requiring caution, was corroborated by circumstances and upheld; conviction sustained.
Criminal law – use of police traps/informants – cautionary rule applicable but not fatal where corroboration exists; corroboration by circumstantial evidence (police observations; marked banknotes; discovery of drugs); admissibility and relevance of instructions given to trap; accused’s untruthfulness as factor affecting credibility and supporting inference of guilt.
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24 November 1978 |
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Appeal allowed where probabilities and witness evidence showed driver’s negligent movement of bus caused passenger’s fall and injury.
• Motor-vehicle liability – passenger injured while boarding – whether driver negligently drove off while passenger boarding; credibility and inherent probabilities.
• Conflicting witness accounts – distances, stopping and possible dragging – inconsistencies in driver’s evidence undermine defence.
• Contributory negligence and intoxication – police observations unreliable; respondent failed to prove appellant’s negligence.
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23 November 1978 |
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Whether the respondent negligently moved the bus causing the applicant to fall and suffer compensable injuries.
Motor-vehicle liability – passenger boarding – driver alleged to have moved off causing passenger to fall and be dragged – assessment of credibility and inherent probabilities – drunkenness and contributory negligence not proved.
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23 November 1978 |
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Whether the spouse’s testimony and a prior assault conviction could be used to establish the appellant’s guilt for murder.
Criminal law — competence of spouse as witness — admissibility of answers elicited in cross‑examination — use of prior conviction or prior guilty finding as an independent fact in assessing guilt on a separate charge — circumstantial evidence and inherent improbability of accused’s explanation.
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23 November 1978 |
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Circumstantial evidence sustained murder convictions; appellate court upheld convictions and 15-year sentences.
Criminal law – Murder – Circumstantial evidence – Totality of facts and reasonable inference – Credibility and inconsistencies – Appellate review of findings of fact and sentence; limited scope to interfere with trial court's sentencing discretion.
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21 November 1978 |
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Totality of circumstantial evidence supported the applicants' murder convictions; appeal against conviction and sentence dismissed.
Criminal law – Murder – Conviction on circumstantial evidence – Totality of proved facts may permit only one reasonable inference of guilt. Evidence – Circumstantial evidence – Proper approach: catalogue of proved facts and application of legal tests for drawing inferences (authorities cited). Credibility – Trial judge entitled to reject accuseds' versions where inconsistent with proved facts. Sentence – Appellate interference limited; sentences not excessive.
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21 November 1978 |
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Admissible confessions sustained robbery convictions; attempted murder convictions overturned for lack of intent.
Criminal law – admissibility of confessions – voluntariness – assessment of credibility and circumstances of recording. Criminal procedure – s 217(1)(b)(ii) presumption where confession made to a magistrate – burden on accused to rebut. Substantive criminal law – robbery with aggravating circumstances; proof beyond reasonable doubt. Criminal law – attempted murder – dolus eventualis not established where shot may have been accidental. Sentence – concurrent sentencing and effect of setting aside one conviction.
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20 November 1978 |
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Confessions upheld; robbery and firearm convictions affirmed, but attempted-murder convictions set aside for accidental discharge.
Criminal law – admissibility of confessions – voluntariness – trial judge’s assessment of credibility and probabilities. Criminal procedure – confession to magistrate – statutory presumption under s 217(1)(b)(ii) of Act 51 of 1977 – burden on accused to rebut. Substantive criminal law – attempted murder – requirement of intent/dolus eventualis distinguishes accidental discharge from attempted murder. Sentencing – concurrent sentences; setting aside one concurrent conviction does not necessarily reduce effective custodial period.
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20 November 1978 |
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A person registered as owner on the fixed date can be held liable for an enhancement levy under s 35 ter; the provision is not ultra vires.
Town-planning law – Enhancement levy under s 35 ter – interpretation of "owner" and "fixed date" – liability attaches to person registered on fixed date. Constitutional/administrative law – Provincial legislative competence – retrospective/deeming provisions validating enhancement-levy powers. Statutory interpretation – avoidance of absurdity; application of subsections 8 and 9 to shift or discharge levy liability.
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16 November 1978 |
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Appellate court found identification proved but circumstantial evidence insufficient to establish common purpose to murder; conviction set aside.
Criminal law – identification evidence – credibility of eyewitnesses at shebeen and in car – court entitled to accept demeanour-based findings. Criminal law – murder – common purpose – whether circumstantial evidence established common purpose to kill or foresaw death – alternative innocent inferences. Evidence – false alibi – probative but not necessarily decisive; must be weighed with all circumstances. Appeal – appellate intervention where conviction not supported beyond reasonable doubt by cumulative evidence.
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16 November 1978 |
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Court upholds that the 1854 deed vests trusteeship in holders of a specific Imaum office and validates the 1968 court-sanctioned Board of Trustees.
Trusts – construction of deed – "successors in office" means successors to the specific office named (Imaum of Buitengracht) and is unambiguous; surrounding circumstances not admissible to vary deed. Trusts – Court power – Court may fill trustee vacancy and incorporate administrative constitution by order; substitution of board of trustees was permissible and not a substantial variation. Pleadings – admissions – plaintiff entitled to rely on pleaded admission that meeting and election were duly held. Islamic law/evidence – sale in execution does not necessarily destroy mosque status; continuity of trusteeship upheld on evidence. Occupation – private appointment contrary to constitution’s electoral procedure ineffective to confer occupancy rights.
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14 November 1978 |
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Trial court rightly rejected youth as extenuating for two appellants; third appellant (under 18) had death sentence set aside and matter remitted for resentencing.
Criminal law – sentencing – extenuating circumstances – youth of accused – whether youth constitutes extenuation for death sentence; Criminal law – joint enterprise/common purpose – culpability of less active participant; Sentencing – juvenile (under 18) – trial judge retains jurisdiction to impose less than death irrespective of extenuating‑circumstances finding; Procedural – remittal for reconsideration of sentence and leave to lead evidence.
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14 November 1978 |
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Possession of multiple firearms and receipt of stolen goods justified refusal to wholly suspend the appellant's sentence.
Criminal law – Sentence – Possession of multiple firearms and receiving stolen property – Distinction from lesser possession cases – Appellate restraint in interfering with sentence where magistrate considered mitigating and aggravating factors.
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14 November 1978 |
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Appeal dismissed: child eyewitness credible; facts support common‑purpose murder conviction and no mitigating circumstances.
Criminal law – murder – common purpose – where two acted together to enable theft and silenced an elderly victim, both may be convicted of murder if they foresaw risk of death. Evidence – credibility of child witness – a clear, consistent 12‑year‑old eyewitness may be accepted. Circumstantial evidence – inferences from conduct before, during and after the incident. Sentencing – absence of mitigating circumstances; appellate restraint in interfering with trial court’s sentencing findings.
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14 November 1978 |
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Youth did not excuse first and second appellants, but death sentence on the under‑18 third appellant was set aside and remitted for re‑sentencing.
Criminal law – Murder and robbery with aggravating circumstances – Joint enterprise/common purpose – culpability of co‑participants; Sentencing – Extenuating circumstances – Youth considered; Juvenile offender (under 18) – discretionary nature of death penalty and jurisdiction to impose non‑capital sentence; Procedure – Remittal for re‑sentencing and leave to lead sentencing evidence.
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14 November 1978 |
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Assault that materially contributes to death makes assailants criminally responsible even if a later fire hastens death.
Criminal law – murder and arson – causation (conditio sine qua non) – material contribution by earlier assault that hastens death – common purpose liability for robbery and subsequent arson – admissibility and challenged voluntariness of accused’s statement – appellate review of credibility findings.
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14 November 1978 |
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Appellate court reduced death sentence to 12 years because intoxication was a mitigating circumstance; conviction upheld.
Criminal law – murder – sentence – mitigation – intoxication as a mitigating circumstance; appellate interference with death sentence where trial court failed to take intoxication into account; translation/section 317 annotation noted but conceded not prejudicial.
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14 November 1978 |
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Death sentences upheld where appellant's exceptionally brutal rape and fatal assault on a vulnerable elderly victim were proven.
Criminal law – Murder and rape – Sufficiency of evidence – Medical evidence of fatal cranial and genital injuries – Confession – Mitigating circumstances (youth, intoxication) – Death sentence upheld for exceptionally brutal sexual assault resulting in death.
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13 November 1978 |
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Appeal dismissed: murder and rape convictions and death sentences upheld; no sufficient mitigating circumstances.
Criminal law – murder – sufficiency of evidence – confession and extensive medical injuries support conviction. Sentencing – death penalty – may be appropriate where rape involves extreme violence, serious bodily injury and victim vulnerability. Mitigation – brief/intoxication and youth not necessarily extenuating where conduct is particularly brutal.
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13 November 1978 |
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Applicant failed to prove fraudulent inducement to sign restrictive agreement; adverse inference drawn for not calling available witness.
Property law — restrictive title conditions and servitude — alleged fraudulent misrepresentation inducing contractual restriction; evidence and credibility — demeanour and probabilities; adverse inference for failure to call available material witness; rescission/ damages claim dismissed on lack of proof.
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10 November 1978 |
