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Citation
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Judgment date
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| March 1979 |
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Whether the statement that the applicant was "summarily dismissed" was defamatory when read in context.
Defamation — meaning of publication — whether "summarily dismissed" imputes misconduct — interpretation by the ordinary reasonable reader in context — effect of apology; consent (volenti) by prior press statements.
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30 March 1979 |
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An insurer is liable under s.23 where passengers were conveyed "in the course of the owner’s business" even if the vehicle operated without a carrier certificate.
Compulsory Motor Vehicle Insurance Act s.23(b)(ii) – meaning of "in the course of the business of the driver or owner" – not limited to lawfully conducted businesses under motor‑carrier legislation; 1964 definition limiting "reward" does not extend to "course of business"; innocent passengers conveyed in the course of an owner’s taxi business may recover from statutory insurer despite the vehicle operating without required motor‑carrier certificate.
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30 March 1979 |
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A statutory insurer is liable where passengers were conveyed in the owner’s taxi business despite the vehicle lacking a transport licence.
Compulsory Motor Vehicle Insurance Act s.23(b)(ii) – interpretation of "in the course of the business of the driver or owner" – does not require business to be lawful under motor-transport legislation; definition of "reward" (1964 amendment) excludes illegal reward but does not alter "course of business"; insurer liability where vehicle regularly used in taxi business though unlicensed; appellate review of factual credibility findings; substitution of statutory interest rate.
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30 March 1979 |
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Court upheld 12‑month sentence for the applicant’s unlawful export of convertible securities, stressing deterrence and Treasury control.
Exchange control – Export of securities – Regulation 3(1)(a) – Sentencing – seriousness and statutory maxima – deterrent sentence for creation of overseas ‘nest‑egg’ – mitigation (remorse, no actual loss, repatriation) weighed against aggravation (thwarting Treasury control) – scope of appellate interference with sentence.
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30 March 1979 |
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Driver who failed to keep proper lookout liable for collision with unlit motorcycle; passenger’s volenti/contributory defence not proved.
Motor-vehicle negligence – right-hand turn into junction – unlit motorcycle – standard of lookout; Passenger’s knowledge – volenti non fit injuria and contributory negligence – onus to prove actual knowledge; Inspection in loco and trial runs – evidential weight; Assessment of general damages – chronic foot injury, scarring, future operations and modest allowance for future loss of earnings.
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30 March 1979 |
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Dealer's cessation of trade permits cancellation of an indivisible tripartite sales agreement and ends dealer-tied incentives.
Contract interpretation – tripartite Sales Agreement – whether severable into separate agreements or an indivisible contract binding owner, distributor and dealer. Clause construction – Clause 6 cancellation on dealer ceasing to trade permits cancellation of entire agreement. Incentive payments – Clause 8 incentive tied to purchases by dealer under the Sales Agreement; obligation ceases on cancellation. Appeal limits – absence of cross-appeal prevents altering orders adverse to a respondent.
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30 March 1979 |
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Dealer ceasing to trade permitted distributor to cancel the tripartite Sales Agreement; incentive payments ended on cancellation.
Contract – Tripartite sales agreement – construction – severability – whether agreement between distributor, dealer and owner was severable – dealer’s cessation of trade as event permitting cancellation under cancellation clause – effect of cancellation on incentive payments and loan obligations.
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30 March 1979 |
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Whether a tender in a defendant’s plea constituted a valid offer and the proper compensation and costs under the Expropriation Act.
Expropriation — statutory offers/tenders in pleadings — whether a tender in a plea can constitute an offer capable of acceptance — effect of extrinsic evidence (council minutes) to determine intention — assessment of compensation under s 8(1)(a)(i) (market value) and s 8(1)(a)(ii) (actual monetary loss and inconvenience) — costs consequences of late or ineffective acceptance of offers.
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29 March 1979 |
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The applicant's appeal dismissed: trial court credibility findings upheld; no fraudulent misrepresentation proven.
Sale of immovable property – allegation of fraudulent misrepresentation – burden of proof rests on buyer alleging fraud; credibility findings central. Evidence – contemporaneous notes and telephone episode – probative value in resolving disputes of fact. Appellate review – deference to trial court’s evaluation of witnesses and probabilities; appellate court will not lightly disturb such findings.
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29 March 1979 |
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Alleged fraudulent misrepresentation about planted acreage not proved; trial court credibility findings upheld and appeal dismissed.
Sale of land — allegation of fraudulent misrepresentation as inducement to contract — burden on party resisting contract — evaluation of credibility and probabilities — appellate deference to trial court findings — conflicting documentary notes and oral evidence — appeal dismissed.
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29 March 1979 |
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Whether an attorney convicted of terrorism and found to have lied should be struck off and oral recantations admitted to challenge the conviction.
Attorneys’ disciplinary proceedings – striking off for convictions under Terrorism Act and finding of untruthful evidence. Civil procedure – admission of viva voce evidence in collateral disciplinary proceedings – test: reasonable prospect of casting real doubt / rebutting presumption of correctness (Solomon principle). Credibility findings of trial courts – weight and presumption of correctness in subsequent proceedings. Striking off versus suspension – seriousness of offences, absence of contrition, and requirement of rehabilitation before readmission.
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29 March 1979 |
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Court refused new oral evidence and upheld striking off of attorney convicted of serious terrorism offences.
Attorneys — professional fitness — striking off — effect of criminal convictions and trial credibility findings; admissibility of post-conviction recantation affidavits and viva voce evidence — test whether oral evidence could reasonably cast real doubt on conviction; public protection and rehabilitation considerations in striking off versus suspension.
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29 March 1979 |
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Leave to appeal in forma pauperis refused where pedestrian’s gross negligence and driver’s right of way made appeal bound to fail.
Civil procedure – in forma pauperis application – leave to appeal – prospects of success; Delict – pedestrian struck in intersection – contributory/gross negligence of pedestrian; Motorist’s duties at traffic signal – right of way and foreseeability; Obstruction by stationary vehicles and sudden emergence of pedestrian.
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29 March 1979 |
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Driver not negligent where child suddenly ran from in front of a stationary bus; danger was not reasonably foreseeable.
Road traffic — collision with pedestrian who ran from in front of stationary bus; eyewitness credibility — unreliable estimates of speed, distance and time; statutory duty when passing stationary bus (s.109(7) Ord. 21/1966); foreseeability and standard of care where children or pedestrians may be present.
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29 March 1979 |
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Overtaking driver must foresee passengers emerging from a stationary bus at a junction and take precautions; failure is negligent.
Negligence — overtaking stationary bus — foreseeability of passenger alighting and passing round front; duty to hoot, reduce speed and give berth; adverse inference from failure to call driver; apportionment of damages between driver and injured child.
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29 March 1979 |
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Appellate court upheld murder conviction and death sentence; youth and gang membership were not mitigating given leading, violent conduct.
Criminal law – murder – mitigation at sentencing – youth and maturity – gang membership and leading role as factors in assessing inherent wickedness and appropriateness of death sentence.
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29 March 1979 |
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Court upheld admissibility of confession (Lebone exception) and dismissed appeal, finding guilt proved beyond reasonable doubt.
Criminal law — confession — voluntariness — onus on State under Criminal Procedure Act to prove confession freely and voluntarily made; trial within a trial; cross-examination on contents of confession permissible where accused alleges police-supplied contents (S v Lebone exception); credibility of police evidence v. accused; conviction upheld where confession corroborated by independent evidence.
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29 March 1979 |
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Appellate court upheld death sentences for brutal aggravated robbery where inherent viciousness and public protection justified capital punishment.
Criminal law – sentence – death penalty discretionary where aggravating circumstances proved – violent aggravated robbery of elderly victims; inherent viciousness as basis for severity of sentence; youth and possibility of long imprisonment may mitigate but insufficient where brutality and lack of remorse established; appellate review of sentencing discretion limited.
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29 March 1979 |
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Whether a statutory "gathering" may consist of two people and whether a Ministerial prohibition on "social gatherings" was valid; two-person lunch did not contravene notice.
Criminal law – Internal Security Act – meaning of "gathering" in statutory definition – includes any number from two upwards; administrative law – validity and certainty of Ministerial prohibitory notice under s 9(1) – "social gathering" sufficiently certain and intra vires; application – one-to-one meeting not a "social gathering" under the notice.
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29 March 1979 |
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Whether a written 'guarantee' is an original obligation or suretyship and which prescriptive regime applies.
Contract interpretation – guarantee construed in context as original/primary obligation not suretyship; Prescription – date when debt 'arose' determines whether Prescription Act 1969 or pre-1969 Proclamation applies; written undertaking classified as a written contract (six-year prescriptive period); interest – contractual rate incorporated from underlying sale (13%) but reduced by waiver to 11%. |
28 March 1979 |
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Court upheld permanent removal of children abroad; children’s welfare, not custodial preference, is paramount.
Family law – Variation of custody order – Removal of children abroad – Welfare of the child paramount – "Good cause" for variation may exist absent substantial change of circumstances – Court may override custodial parent’s prior consent restriction where removal is on balance in children’s best interests – Appellate review limited to whether trial court erred in judicial exercise of discretion.
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27 March 1979 |
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Appellate court absolved police employer where respondents failed to prove police driver’s causal negligence.}
Road-traffic negligence — evaluation of conflicting eyewitness evidence; contradictions with prior criminal-trial testimony; probative value of independent eyewitness and physical evidence; appeal and absolution from instance; apportionment of costs after consolidation.
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27 March 1979 |
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Court affirmed seriousness of exchange-control offences but reduced sentences where trial courts misdirected on deterrence and mitigation.
Exchange control offences – contraventions of Exchange Control Regulations – serious nature; deterrence and retribution often significant in sentencing. Sentencing – discretion of trial court – appellate interference limited to misdirection, irregularity or unreasonableness. Sentencing – weight of repatriation, contrition (particularly post-detection), and personal circumstances as mitigation. Evidence – hearsay in mitigation may be rejected where inherently unreliable and improbable. Principle – courts must not fetter discretion by treating classes of offenders as undeterrable by fines.
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23 March 1979 |
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Deterrence important in exchange‑control offences, but courts must not fetter sentencing discretion or treat wealth as mandating imprisonment.
Exchange Control Regulations – contraventions – seriousness and deterrent importance; Sentencing – balance between deterrence and personal circumstances (repatriation, contrition, likelihood of reoffending); Wealth of offender not determinative of prison sentence; Appellate interference where trial court fetters sentencing discretion or misdirects; Repatriation and late contrition are mitigating but carry less weight if effectuated only after detection.
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23 March 1979 |
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Conviction set aside where co-accused testimony was unreliable and fingerprint evidence inconclusive.
Criminal law – Evidence of co-accused – cautionary rule – necessity to warn and require corroboration before accepting accomplice testimony as establishing guilt of another. Forensic evidence – fingerprint on recovered item – requirement of reliable identification and exclusion of innocent explanations. Appeal – conviction unsustainable where principal incriminating evidence is uncorroborated and equivocal.
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23 March 1979 |
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Appeal dismissed: trial judge’s discretion to sit without assessors was reasonable; intoxication not proven as mitigation.
Criminal law – murder – sentence – discretion to sit without assessors under s.145(2) of Act 51 of 1977 – calling assessors a matter of judicial discretion dependent on whether a judge could reasonably conclude death sentence might be imposed. Criminal law – mitigation – intoxication – absence of evidence of drunkenness cannot be supplied by speculation from venue/time; high degree of intoxication required to diminish moral blameworthiness.
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22 March 1979 |
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Application to adduce new Huntington’s-disease evidence refused; experts failed to link findings to facts, no likely different verdict.
Criminal procedure – s316(3) CPA 51/1977 – application for leave to appeal and to adduce further evidence – requirements: content of evidence before court, credibility, reasonable explanation for non-production, and reasonable prospect of different verdict/sentence; psychiatric evidence – expert must link clinical findings to factual circumstances and motive when alleging diminished responsibility (Huntington’s chorea).
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20 March 1979 |
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The respondent may rescind and recover payments when the appellant’s conduct anticipatorily repudiated the suspensive sale.
Contract — Anticipatory breach — Recognised as breach of an obligation ex lege based on bona fides — Repudiation by conduct tested objectively by reference to the reasonable expectation of the promisee — Suspensive sale subject to proclamation — Removal of identified erven from plan as anticipatory breach — Rescission and restitution available.
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19 March 1979 |
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Whether intermediary delivery and lack of agreement defeat formation of an enforceable cheque contract and estoppel claim.
Bills and notes – delivery by intermediary – agent or mere messenger – causa/"redelike oorsaak" (justa causa) as requirement for enforceable cheque contract – consensus ad idem, objective versus will/reliance theories – estoppel by representation/neglect requires representation, fault and causal link – delivery "by or under authority" required to perfect wisselkontrak.
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16 March 1979 |
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A suspended sentence is a fixed continuous period tied to good behaviour; "tenuitvoerlegging" is not read in isolation.
Criminal procedure — Suspended sentences — Interpretation of s 297(1)(b) Criminal Procedure Act 51/1977 — "Tenuitvoerlegging" must be read in context with s 297(1)(a) (good behaviour) — suspension period must be fixed and continuous — breaches judged by conduct during whole period; proof or conviction after expiry irrelevant.
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15 March 1979 |
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Most default‑judgment rescission applications refused for lack of satisfactory cause; one judgment set aside due to bona fide representation mistake.
Civil procedure – Rescission of default judgment – Scope of common-law discretion to rescind default judgments broader than narrow Childerley categories; applicants must show satisfactory cause; Rule 42(1)(a) inapplicable where respondent complied with Rules and judgment properly sought; judgment on counterclaim permissible where counterclaim previously admitted; relief granted for bona fide representation mistake.
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13 March 1979 |
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Appeal against imprisonment dismissed: trial court properly exercised sentencing discretion considering mitigating and aggravating factors.
Criminal law — Sentencing — Exercise of discretion on appeal — Whether trial court misdirected itself in sentencing; mitigation (first offender, remorse, cooperation) versus aggravation (seriousness, value of goods) — Disparity with co-accused not necessarily grounds for interference where personal circumstances differ.
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13 March 1979 |
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Whether the trial court properly exercised sentencing discretion in diamond-trafficking convictions; appeal dismissed.
Criminal law — Sentencing — Appellate review of sentence — discretionary assessment — interference only where trial court misdirected or exercised discretion improperly. Criminal law — Diamond trafficking — seriousness and value of goods relevant to sentence. Sentencing — Mitigation (guilty plea, remorse, cooperation, first offender) weighed against aggravation (prevalence, statutory denunciation, high value). Sentencing disparity — comparative sentences of co-accused do not automatically require interference if personal circumstances and culpability differ.
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13 March 1979 |
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Appeal upholds death sentence for murder with dolus eventualis but substitutes ten years for robbery closely linked to the killing.
Criminal law — Murder by dolus eventualis; extenuating circumstances and sentencing discretion under s277(2); robbery with aggravating circumstances and death penalty under s277(1)(c)(i); overlap of violent acts producing separate convictions; psychiatric evidence on diminished responsibility (mild psychopathy).
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13 March 1979 |
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Doodvonnis tersyde gestel weens misleiding en onbehoorlike uitoefening van vonnisdiskresie.
Moord — versagtende omstandighede; Artikel 277(2) Wet 51 van 1977 — diskresie by vonnisoplegging; Artikel 145(2) — aanspreek van assessors waar doodsvonnis ’n moontlikheid is; vorige veroordelings en relevansie; misdireksie by vonnisoplegging.
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9 March 1979 |
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Whether the respondent-driver’s inadequate lookout constituted negligence and how damages should be apportioned between the parties.
Negligence – Duty of driver to keep proper lookout before turning; contributory negligence – apportionment of damages where both parties at fault; evaluation of factual findings – limits on inferring excessive speed or poor visibility without evidence.
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8 March 1979 |
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Both cyclist and driver were negligent; court apportioned damages 50/50 and awarded appellant half of agreed damages.
* Motor collision – negligence – driver’s duty to take adequate lookout before turning across a main road; failure to re-check for oncoming traffic may constitute negligence. Evidence – credibility and inferences – appellate review of trial judge’s adverse credibility inferences where unsupported by facts. Visibility/street lighting – conflicting evidence as to effectiveness may undermine conclusions about what a reasonably careful driver should have seen. Apportionment of damages – contributory negligence by both parties and 50/50 division of liability. |
8 March 1979 |
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A written sale deed that on its face fails statutory description requirements cannot be rectified to create validity; appeal allowed for the seller.
Property law – Sale of land – Statutory formalities – Whether written contract sufficiently identifies land under s.1(1) General Law Amendment Act 68 of 1957. Evidence and construction – Intention of parties – Whether boundaries were intended to be fixed by surveyor (selection from a genus). Equitable relief – Rectification – Whether courts may rectify a written deed that on its face is void for non-compliance with statutory formalities. Procedure – Condonation – Late filing of appeal and record.
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8 March 1979 |
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Appeal dismissed for non-prosecution where appellant likely had notice and the appeal lacked reasonable prospects.
Civil procedure – Rule 7(2) – dismissal for non-prosecution where appellant fails to appear; discretion to dismiss or strike off – relevant factors: notice to appellant, prejudice to respondent, and prospects of success; appeal on facts – trial court’s credibility and probability findings entitled to deference.
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6 March 1979 |
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Appeal dismissed: murder conviction upheld on dolus eventualis; self-defence and extenuation rejected.
Criminal law – murder – dolus eventualis – close-range shots to chest and shooter’s handgun expertise establish foresight of death; credibility findings and absence of firearm rebut self-defence; no extenuating circumstances warranting reduction; attempted murder and robbery convictions upheld.
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6 March 1979 |
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A court may vary child maintenance to preserve a child’s established schooling where changed circumstances and the child’s best interests justify increased payments.
Family law – Variation of maintenance – Change of circumstances – Child’s best interests paramount – Contribution to private school fees – Custodial parent’s conduct and disclosure not decisive where child’s welfare requires variation.
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6 March 1979 |
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Whether a possessor’s enquiries about the registered owner defeat acquisitive prescription and whether registration shows abandonment.
Prescription (acquisitive) – possessor’s enquiries about registered owner – enquiries construed as acknowledgement of another’s superior right, defeating prescription. Abandonment/derelictio – requires clear intention to abandon; registration and long non‑occupation insufficient. Registered title protects ownership against prescriptive claims by occupiers. Statutory issue (Disposition of State Land Act) raised but not decided.
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5 March 1979 |
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Convictions for rape and murder upheld; no reasonable basis to order a section 78(2) mental‑responsibility inquiry.
Criminal law – identification – corroboration by independent witnesses and absence of defence witnesses.* Criminal law – sexual offences – child victim, medical evidence, absence of semen not decisive where blood or interrupted intercourse possible.* Criminal law – murder – intent inferred from nature and degree of force used (strangulation and blunt head trauma).* Criminal procedure – mental condition inquiries (s78(2)) – court must direct inquiry if a reasonable possibility exists that accused lacked criminal responsibility; discretion not available once such possibility appears.* Sentencing – extenuating circumstances – no misdirection where trial court implicitly considered mitigation and found none.
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2 March 1979 |
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Whether a town-planning condition compelling land surrender without compensation was ultra vires and rendered the Administrator’s refusal reviewable.
Town-planning law – Amendment of town-planning scheme under s35 bis – Power to impose conditions – Whether Administrator may require surrender of land for road widening without compensation – Ultra vires. Administrative law – Review of discretion under s57(4) – Decision influenced by mistaken view of legality of imposed condition – reviewable. Property law – Acceptance, waiver, estoppel – whether conduct of owner or predecessors validated uncompensated transfer. Distinction between Chapter 2 township permissions and Chapter 4 scheme amendments (Ruyteplaats v Belinco).
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1 March 1979 |
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Appellate court found provocation and personal circumstances mitigated culpability, replacing death sentence with 12 years' imprisonment.
Criminal law — Murder — Sentencing — Mitigating circumstances: provocation, youth and personal circumstances — Trial court's speculative rejection of motives — Death sentence set aside and replaced by imprisonment.
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1 March 1979 |
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Appeal dismissed: reasonable driver could not foresee a child’s last‑moment jump from an upper roadway, so no negligence established.
Civil liability – Motor-vehicle collision involving a child – Credibility findings on how child accessed lower roadway – Appellate restraint on disturbing trial judge’s findings. Negligence – Duty of lookout and foreseeability – Reasonable driver (diligens paterfamilias) not required to foresee remote, last-moment act of a pedestrian jumping from upper to lower roadway when steps are provided. Causation – too-late-perception of danger absolves driver of liability where avoidance was not reasonably possible.
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1 March 1979 |
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The applicant failed to prove the driver negligent for not anticipating a child’s sudden jump from an upper roadway.
Negligence — foreseeability and duty of care — whether reasonable driver should have anticipated child jumping from upper to lower roadway; Credibility — appellate restraint in overturning trial judge’s findings on conflicting eyewitness testimony; Motor-vehicle collision — pedestrian access between different-level roadways and expectation of use of steps.
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1 March 1979 |
