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Citation
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Judgment date
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| November 1979 |
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Trial court rightly preferred plaintiffs’ credible evidence; unreliable police plan could not displace finding of defendant’s negligence.
Civil liability — motor collision — negligence — point of impact — credibility findings and probabilities. Evidentiary weight of police plans and measurements — inaccuracies and missing notes may substantially reduce probative value. Appellate review — reluctance to interfere with trial court credibility findings unless clearly wrong.
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30 November 1979 |
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Whether a signed option was a binding sale contract enforceable by specific performance despite alleged mortgage-condition and claimed mistake.
Contract law – Option to purchase – Whether a signed option constituted a binding contract enforceable by specific performance; Interpretation of option clauses – obligation to apply for mortgage versus condition precedent to vendor’s performance; Procedural law – inadmissibility on appeal of an unpleaded unilateral mistake defence; Evidence – appellate review of trial court credibility findings.
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30 November 1979 |
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A defendant’s rectification plea affects quantum, not cause of action; admitted sums are recoverable by summary judgment.
Civil procedure – summary judgment (rule 32) – admission of part of claim – rectification plea does not constitute separate cause of action – quantum only affected; tenders/deposits do not prevent summary judgment; security under rule 32(3)(a) cannot avoid summary judgment where defendant admits liability to part of claim.
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30 November 1979 |
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An appeal upheld where a key witness’s recantation destroyed the circumstantial case against the applicant.
* Criminal law – Circumstantial evidence – Safety of conviction when a material prosecution witness recants – New evidence adduced under section 316(3) and its effect on appeal. |
30 November 1979 |
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Whether a magistrate may order further and better particulars and dismiss for non-compliance; appeal dismissed with costs.
Civil procedure — Magistrates’ Court rules — Rule 16 particulars and requests for further and better particulars — Enforcement by compliance orders and dismissal under rule 60(2)–(3); appeals — adequacy of notice of appeal (rule 51(7)) — limits on introducing new legal grounds on appeal; judicial discretion on costs.
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30 November 1979 |
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The applicant failed to prove a fraudulent misrepresentation inducing the sale; appeal dismissed with costs.
Sale of immovable property – Alleged fraudulent misrepresentation as inducement to contract – Onus to prove fraud where contract excludes innocent misrepresentation – Credibility and probability assessment of agent testimony and property record – Corroboration by post-contract conduct – Agency/attribution of spouse’s representation.
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30 November 1979 |
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Whether eyewitness and forensic evidence sustained convictions for culpable homicide and liability of co-assailants under common purpose.
Criminal law – Homicide – Culpable homicide versus murder – Intoxication and intent; Criminal law – Common purpose – liability of co-assailants where death results; Evidence – credibility and contradictions of single eyewitness corroborated by forensic findings; Criminal procedure – substitution of verdict under statutory power (s.322(1)(b)). |
29 November 1979 |
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Appeal: attempted murder convictions set aside as duplicative of aggravated robbery; sentences adjusted.
Criminal law — duplication of convictions — attempted murder and robbery with aggravating circumstances — when same assault forms integral part of single continuous transaction — improper splitting; sentencing — appellate intervention when trial court misdirects or exercises discretion improperly; substitution of sentence.
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29 November 1979 |
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A prosecutor may specify offences and tender indemnity under section 204 even if the section 205 subpoena omits the offence.
Criminal procedure – subpoena under s205 – specification of offence under s204 – tendering of indemnity – "may incriminate" standard – statutory explanation suffices for jointly specified offences – refusal to answer questions.
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29 November 1979 |
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Advanced age and ill health do not automatically justify avoiding prescribed habitual‑criminal sentence under section 335A.
* Criminal law – Habitual criminal declaration – s335(2)(b) and s335A – wide discretion to impose lighter sentence – appellate interference limited to irregularity, misdirection or unreasonableness; advanced age/ill‑health not automatic mitigation; prior convictions and deterrence relevant. |
29 November 1979 |
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Court upheld 60/40 apportionment, finding driver negligent for failing to take reasonable steps to avoid pedestrian collision.
Delict — Negligence — Motor collision with pedestrian — Application of diligens paterfamilias standard (Kruger v Coetzee) — Driver’s duty to take reasonable steps (brake, swerve, sound horn) when risk apparent; apportionment of liability (60% pedestrian, 40% driver). Evidence — Credibility findings and lack of reliable evidence on reaction time/speed/distance — appeal not justified.
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29 November 1979 |
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Appeal dismissed: duress not proven; planning, common intention and active participation in murders and robbery established.
Criminal law – murder – duress/compulsion as defence – evidence must show irresistible pressure; common intention and active participation established where accused procured weapon/ammunition, assisted in killings, concealment and looting; mitigating circumstances may be limited to particular counts. |
29 November 1979 |
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Assailant's brutal beating causing fatal injuries established dolus eventualis; conviction and sentence for murder upheld.
* Criminal law – Murder – dolus eventualis – subjective foresight of death from violent assault – causation from the assailant's beating; Intoxication and provocation do not necessarily negate dolus eventualis; Sentence – appeal against severity refused. |
29 November 1979 |
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Driver not liable where pedestrian recklessly dashed from between parked cars; insurer’s liability not established.
Road traffic — Pedestrian darting from between parked cars — Foreseeability and standard of care expected of motorist on main carriageway; Evidence — Appellate review of inferences about speed and perception; Contributory negligence — pedestrian crossing outside demarcated crossing places.
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28 November 1979 |
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A bona fide wrong date in an MVA13 is not material; substantial accuracy suffices and costs-only appeals require leave.
Motor-vehicle insurance — prescribed MVA 13 — incorrect date — attestation is declaration of belief, not warranty — substantial/reasonable accuracy required to enable insurer’s investigation — bona fide immaterial errors do not vitiate form; costs-only order — appeal requires leave of court a quo. |
27 November 1979 |
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Both driver and pedestrian were negligent; court substituted equal (50:50) apportionment and awarded half the agreed damages.
Motor-vehicle collision — negligence — pedestrian and driver both failed to keep proper look-out — causation and apportionment of fault — appellate substitution of 50:50 apportionment supported by eyewitness evidence and brake-mark/distance analysis. |
26 November 1979 |
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Appeal upheld because nocturnal eyewitness identifications were unreliable, making the murder conviction and death sentence unsafe.
Criminal law — Identification evidence — Nocturnal identification requires great caution — factors: lighting, distance, duration, consistency of testimony, opportunity to observe, possible bias of witnesses — common purpose conviction unsafe where identification doubtful — conviction and sentence set aside. |
23 November 1979 |
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Appellate court upheld finding that the insured driver’s failure to keep proper lookout caused the rear collision; appeal dismissed with costs.
Road traffic — collision from behind — credibility — trial court entitled to accept police scene evidence and claimant’s coherent testimony despite inconsistencies — insured driver’s contradictory statements rejected — no contributory negligence by claimant. |
23 November 1979 |
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On the probabilities from brake marks, damage and lighting, the Fiat driver was negligent; the plaintiff was not contributorily negligent.
Motor vehicle collision — Evidence — Attributing brake marks and glass concentration to particular vehicle — Probabilities and physical evidence supporting negligence finding; driver on incorrect side of road. — Credibility — Plaintiff's lack of memory due to unconsciousness does not negate reliability. — Contributory negligence — Reasonable lookout assessed by driver’s position, lighting, and traffic lanes.
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22 November 1979 |
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Appeal allowed: insufficient evidence to hold driver on green contributorily negligent; absolution from the instance with costs.
* Road traffic — signal-controlled intersection — duty of driver approaching on green — not required to anticipate red-light violators; once danger becomes apparent inside intersection must take ordinary care to avoid collision. Evidence — where factual particulars (road width, speeds, point of impact) are vague, onus of proving sequence of entry not discharged. Appeal — trial court erred in inferring contributory negligence without sufficient factual basis. |
22 November 1979 |
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Appellate court finds mitigating circumstances (intoxication, injury, provocation) and replaces death sentences with 15-year terms.
Criminal law – Murder – Sentencing – Mitigating circumstances (intoxication, injury, provocation) – Appellate interference with death sentence – substitution by fixed term imprisonment. |
22 November 1979 |
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Convictions overturned where identification was unsafe, confession inadmissible and evidence insufficient to exclude reasonable doubt.
* Criminal law – identification evidence – reliability depends on opportunity for observation, parade procedures and witness credibility; police failures may render IDs unsafe. Criminal law – confessions – admissibility requires compliance with statutory safeguards and proof of voluntariness; ambiguous replies not to be construed as clear admissions. Evidence – police conduct, failure to produce forensic/medical reports and improper handling of identification undermine prosecution case. Circumstantial evidence – vehicle location near accused’s residence insufficient alone to establish guilt beyond reasonable doubt. |
20 November 1979 |
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Appeal against conviction and death sentence dismissed; further-evidence application refused for lack of prima facie credibility.
Criminal law — Identification evidence — credibility assessment of eyewitnesses; alibi — rejection where inherently improbable and contradicted by reliable evidence; criminal appeal — evaluation of trial court's findings on demeanour and credibility; further evidence — requirement of prima facie likelihood of truth for admission; sentencing — death sentence upheld where murder was callous and prior convictions relevant.
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16 November 1979 |
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Appellate court found provocation and sudden loss of self-control as mitigating circumstances and replaced death sentence with 15 years' imprisonment.
* Criminal law – Murder – Mitigating circumstances – Court must consider all relevant evidence, including State witnesses, when assessing mitigation; provocation/sudden loss of self-control may mitigate murder. Appellate review – Trial court erred in limiting enquiry to accused’s mitigation evidence. Sentencing – Death sentence set aside and substituted with fixed term imprisonment given circumstances and antecedents. |
15 November 1979 |
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Whether a loader driver breached a duty of care at a signalled, flagman-controlled crossing causing the applicant’s collision.
Delict — negligence of driver/operator of heavy construction plant at a road crossing — effect of advance signage and flagmen on duty — duty to keep lookout and scope of reasonable reliance — findings of fact and causation on balance of probabilities.
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15 November 1979 |
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Conviction based on an unreliable co-accused's testimony and limited corroboration was unsafe, warranting acquittal.
* Criminal law – Evidence – Accomplice/co-accused testimony – Cautionary rule applies to a co-accused testifying in his own defence – multiple inconsistencies and motives to exculpate himself may render such evidence unsafe. Corroboration – Limited corroboration of ancillary facts does not necessarily reduce the risk of relying on an unreliable co-accused’s assertion that another committed the killing. Inference from lies – An accused’s false denials on collateral matters may be relevant but are not determinative where principal incriminatory evidence is unreliable. |
14 November 1979 |
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Applicant failed to prove respondent's driver negligent; sudden act by intoxicated cyclist was unforeseeable—appeal dismissed.
Delict — negligence — foreseeability of harm — sudden, extraordinary act by intoxicated cyclist not reasonably foreseeable by oncoming driver. Evidence — failure to call witness — non-production of defendant's driver does not automatically warrant adverse inference of negligence; inferences must be drawn from all evidence. Standard of care — conduct judged by what a reasonably careful driver in the defendant's position would foresee and do.
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14 November 1979 |
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Written terms for a dismantling contract prevail over inconsistent printed sale/hire conditions, so arbitration clauses on the form did not apply.
Contract interpretation — handwritten/typed terms prevail over inconsistent printed form terms; distinction between locatio conductio operis and contracts of sale or hire; incorporation of standard printed conditions; arbitration clause construed in context of sale or hire only; arbitration Act s.6(1) issue raised but not decided on appeal.
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13 November 1979 |
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An "extreme" rape with prolonged violent assault and lasting psychological harm can justify the death penalty; appeal dismissed.
* Criminal law – Rape – Sentencing – Death penalty – "Extreme case" doctrine: severe and prolonged assault and attendant psychological harm may justify capital sentence even without permanent physical injury. Sentencing – Appellate review – Trial judge’s balanced consideration of personal circumstances, gravity of offences and public interest will not be disturbed absent misdirection. Evidence – Physical and psychiatric effects of assault relevant to sentencing gravity. |
12 November 1979 |
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The term "child" in the estate-duty provision includes illegitimate children; succession law concepts do not alter that meaning.
Estate duty — Interpretation of "child" in s4A(b) of Estate Duty Act (Act 45/1955) — Whether "child" includes illegitimate children — Statutory interpretation by context and purpose; succession law inapplicable to estate-duty definitions.
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12 November 1979 |
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Section 32(1) of the Prisons Act prevents general backdating of sentences to the date of arrest; remand is accounted for by reducing sentence.
Sentencing — Whether a court may order a sentence to run from date of arrest — Interpretation of s32(1) Prisons Act 1959 as mandatory — s282 Criminal Procedure Act 1977 allows only limited backdating after substitution of sentence on appeal/review — remand custody is not service of sentence; courts may reduce sentence to account for remand.
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12 November 1979 |
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Whether contractor complied with municipal clearance specifications and was entitled to payment after a municipal clearance certificate.
Municipal law – vegetation removal – contract interpreting "to the specifications of the Municipality" – clearance certificate as evidentiary proof of performance – exceptio non adimpleti contractus – weight of contemporaneous inspection versus later inspections.
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8 November 1979 |
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Court set aside conviction and remitted case where post‑trial evidence showed identity confusion, allowing amendment and rehearing.
Criminal procedure — conviction set aside and matter remitted where post‑trial evidence discloses identity confusion; functus officio and ss.315–316 Criminal Procedure Act — strict application excused in exceptional circumstances; power to allow amendment of charge, recall/re‑examination of witnesses and fresh finding before sentence.
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5 November 1979 |
