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Citation
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Judgment date
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| September 1979 |
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Driver liable where applicant's bus moved with open door, creating foreseeable risk to the respondent.
Delict – negligence – foreseeability and duty to guard against passenger boarding of moving buses in congested areas. Transport law – driver’s control of bus doors and responsibility to prevent boarding while vehicle is moving. Causation – omission to close bus door can be causa causans when omission is sufficiently linked to injury. Speed – slow movement does not necessarily negate foreseeability of harm from boarding a moving bus.
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28 September 1979 |
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In an instalment sale, clause requiring payment "only when I shall have made payment" mandates payment before transfer; guarantee insufficient.
* Property/Contracts – instalment (hire-purchase) sale of land – interpretation of clause requiring payment before transfer – future perfect tense and limiting adverb indicate payment must precede transfer. Remedies – banker's guarantee not equivalent to payment under an instalment sale. Distinction from cash sale authorities permitting guarantees against registration (Breytenbach). Statutory Acts (Sale of Land on Instalments Act; Hire-Purchase Act) inapplicable. |
27 September 1979 |
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In an instalment (hire-purchase) sale the respondent must pay the full purchase price before transfer; a guarantee is not payment.
Sale on instalments/hire-purchase; construction of transfer clause requiring payment before registration; future-perfect tense and "only when" imply payment precedes transfer; banker’s guarantee is not payment; Breytenbach principle inapplicable to instalment contracts.
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27 September 1979 |
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Directors’ surety held to cover post-lease company debts where company continued trading and respondent recognised it as occupier.
Civil procedure; suretyship — directors’ personal guarantee for company debts — scope of guarantee covering "all sums" owing; lease expiry and post-lease conduct — tacit relocation and tacit contracts; identity of debtor — company v. purported sole proprietor; evidentiary consequences where appellants close case and respondent’s evidence remains uncontradicted; oral cancellation / implied term not established.
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27 September 1979 |
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Failure to detect and treat a developing postoperative compartment syndrome constituted negligence causally causing the disabling injury.
Medical negligence — post‑operative care — failure to detect and treat compartment (Volkmann’s) syndrome; causation: ischemia plus superimposed staphylococcal sepsis; duty to decompress circumferential plaster and to act on nursing reports; quantum — allowance for future contingencies (possible amputation/prosthesis).
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27 September 1979 |
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Conviction upheld where accomplice evidence, corroborated by licence‑plate switching and general probabilities, satisfied the cautionary rule.
* Criminal law – Evidence – Accomplice testimony – Cautionary rule – Whether corroboration or strong general probabilities can sustain conviction based on accomplice evidence; corroboration by licence‑plate/disc switching and consideration of interpreter-related inconsistencies. |
27 September 1979 |
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Whether residue vested at testator’s death or on the will’s fixed later date and whether surplus income accrues to capital.
Wills — interpretation — vesting of residue — dies cedit vs dies venit — whether residuary bequest vests at testator’s death or on later fixed date — substitution provisions — surplus income prior to distribution date — accumulation to capital — admissibility of surrounding (arm‑chair) evidence to resolve latent ambiguities.
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27 September 1979 |
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Conviction for neighbouring-house robbery overturned where identification and proximity evidence failed to exclude reasonable doubt.
* Criminal law – identification evidence – reliance on contemporaneous events and similarities between neighbouring offences – necessity for independent proof beyond reasonable doubt. Evidence – weight of time estimates elicited by leading questions. Sentencing – adjustment of cumulative effective sentence where one conviction set aside on appeal. |
27 September 1979 |
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No oral lease or delictual liability where written drafts required head-office signature and no binding agreement was proved.
Lease law – requirement of head-office signature in draft leases (Clause 11 / 60-day clause) precludes finding of binding oral lease; Delict – negligent misstatement and duty of care claims dismissed where no representation or duty established; Administrative failure to exercise option not creating liability to tenant.
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27 September 1979 |
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Whether a newspaper’s footnote implied the respondent retired for misconduct and whether damages were excessive.
Defamation — meaning of words — reasonable ordinary reader — per se libel in headline/lead paragraph; Footnote and contextual interpretation — whether a separate defamatory insinuation arises; Assessment of damages — mitigation by subsequent reports, absence of apology, publication magnitude; Publisher’s responsibility — amplification and presentation can amount to originator conduct; Use of comparative precedent awards and adjustment for differences and inflation.
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27 September 1979 |
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Whether respondent validly paid a preferential loan to a director without proper company authorisation.
Contract — preferential dealer arrangement — interest‑free loan payable subject to conditions — bank guarantee issued and handed to director — requirement of company board authorisation — validity of board resolution and forged/defective authorisation — waiver and estoppel — proof on balance of probabilities — appellate reassessment of credibility — respondent liable for R47,520 plus interest and costs. |
27 September 1979 |
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Appellant’s claim failed because parties’ internal arrangement made payment to the director effective as payment to the company.
Contract law – Variation of payment method – Whether payment to director discharged lender’s obligation; Corporate authority – conduct of sole directors/shareholders; Credibility findings – appellate review; Interpretation of clauses permitting variation of payment (clause 4(b)) vs written amendment clause (7(d)). |
27 September 1979 |
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Whether a defendant who restrained the victim, facilitating a co‑offender’s fatal attack, is guilty as an accomplice.
Criminal law — Murder — Accomplice (medeplichtigheid) — Conscious identification and assistance required — Causal nexus between assistance and killing — Mere presence insufficient; spectator who does not facilitate not guilty as accomplice. |
25 September 1979 |
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A procedural summons-delivery requirement to the Fund is directory; substantial compliance entitles claimants to compensation.
Motor Vehicle Assurance Fund; regulation 5(1)(b)(i) — delivery of summons — directory not peremptory; substantial compliance; statutory interpretation — "shall" not always mandatory; purpose of Act to protect third parties; no prejudice, claimant entitled to compensation and costs. |
25 September 1979 |
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A bank-conditioned payment arising from a forced sale was not in the ordinary course of business and is a voidable preference.
Insolvency Act s.29(1) – voidable preferences – ordinary course of business test – tripartite agreement forming disposition – forced sale/defalcation undermining ordinary-course character – evidentiary onus on alleged preferred creditor to prove ordinary course and absence of intention to prefer.
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25 September 1979 |
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Whether appellant's shooting was justified under section 49; court held it was not and upheld culpable homicide conviction.
Criminal law – Culpable homicide v. justifiable killing under s49 Criminal Procedure Act 51 of 1977 – Use of deadly force to effect arrest or prevent escape – Reasonableness of methods and proximity – Judicial over-questioning not necessarily fatal to conviction. |
25 September 1979 |
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Repeated receipt of stolen goods and refusal to testify undermined mitigation; custodial sentence of twelve months upheld.
* Criminal law – sentencing – receipt of stolen goods – repeated purchases increase culpability and justify custodial sentence. Sentencing – mitigation – refusal to testify under oath and unsupported claims of fear diminish weight of mitigation. Appellate review – whether trial court considered alternatives to imprisonment and personal circumstances before sentencing. |
25 September 1979 |
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Attendance at a wake involving collective singing of political songs may constitute a prohibited "gathering" under the Riotous Assemblies Act.
Riotous Assemblies Act – definition of "gathering" – "common purpose" and "concerted action" – attendance to listen or sing can constitute concerted action – statutory construction and individual liberty.
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25 September 1979 |
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Section 103 inapplicable where an arm’s‑length share sale with commercially normal terms effected dividend avoidance.
Income tax — section 103 tax‑avoidance provisions — requirements: (a) transaction, (b) effect of avoiding anticipated liability, (c) abnormal means/manner or abnormal rights/obligations, (d) subjective purpose — application to arms‑length share sale with repayment of director loans; s86A appeal — full rehearing on fact and law.
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20 September 1979 |
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Section 1(2) of the Banks Act is a prima facie deeming provision; attempted fraud conviction overturned for lack of duty to disclose.
Banks Act s1(2) — deeming provision is supplementary and prima facie, not exhaustive; absence of Registrar’s opinion does not bar prosecution under s7(1); fraud by concealment requires a duty to disclose to the alleged victim; indictment must fairly and precisely plead the form of fraud relied upon. |
20 September 1979 |
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An owner without prior possession may sue for delictual damages for unlawful occupation if wrongfulness, fault and damage are proved.
Property/infringement of ownership – unlawful occupation or use – owner without prior possession entitled to sue in delict (actio legis Aquiliae) for economic loss if wrongfulness, fault and damage established; caution against importing narrow English 'trespass' possessory doctrine.
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18 September 1979 |
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Juvenile caning under section 294(1) must be imposed in lieu of any other punishment, not in addition to it.
Criminal law – Sentencing – Section 294(1) corporal punishment for males under 21 – whipping is discretionary and must be imposed in lieu of other punishment; cannot be conjoined with suspended imprisonment – remedy where whipping already administered is deletion of additional punishment. |
18 September 1979 |
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Appellate court set aside death sentences for gang robbery of elderly victims and imposed 15-year terms, finding no "extreme case."
Sentencing — Death penalty as discretionary — "Extreme case" requirement — Appellate interference with sentencing discretion where no reasonable court could have imposed sentence — Gang robbery of elderly victims; whether facts justify death sentence — Separate counts and competence to alter sentence on unappealed counts. |
14 September 1979 |
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Court set aside murder convictions, finding no subjective foresight; substituted culpable homicide and assault convictions with reduced sentences.
Criminal law – murder (dolus eventualis) – requirement of subjective foresight – distinction between objective foreseeability and subjective foresight; strafbare manslag (culpable homicide) as alternative; common purpose and liability of bystander/instigator; assessment of evidence where witnesses are young and intoxicated. |
11 September 1979 |
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A contractor who disposes of a machine without proper enquiries may be liable where the owner did not abandon it.
Property law – proof of ownership by oral evidence where documentary proof absent; Property law – abandonment – prolonged unattended storage does not necessarily amount to abandonment; Wrongful disposal – duties of occupier/contractor to enquire before disposing of chattels found on site; Damages – assessment where best evidence is imperfect; court may make reasonable valuation and deduct depreciation.
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11 September 1979 |
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Appellant insurer failed to prove insured was intoxicated at collision; post‑mortem alcohol may be from fermentation.
Insurance — exclusion for loss caused by insured being intoxicated — burden on insurer to prove intoxication and causal contribution; post‑mortem blood alcohol evidence — risk of post‑mortem fermentation where sampling delayed and preservation inadequate, especially with diabetic/obese decedent; circumstantial evidence must be assessed cumulatively on balance of probabilities.
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4 September 1979 |
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Appellants’ appeal dismissed; State liable for unlawful warrantless arrests by police acting within scope of duty; s32(1) notice sufficed.
Police law – unlawful entry to private dwelling – arrest without warrant – vicarious liability of State for police officers acting within scope of employment – section 32(1) pre-action notice: substance sufficient, misidentification of arresting officer not fatal.
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4 September 1979 |
