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Citation
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Judgment date
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| 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 |
| August 1979 |
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Whether eyewitness and medical evidence proved dolus eventualis when the appellant allegedly ran over the deceased with his vehicle.
* Criminal law – homicide – whether eyewitness and medical evidence established dolus eventualis where accused’s vehicle ran over deceased. Evidence – assessment of contradictory eyewitness testimony and impact of accused’s falsehoods. Forensic pathology – compatibility of subdural haemorrhage and absence of skull fracture with allegation of wheel passing over head. Sentencing – appellate power to alter conviction and sentence where reasonable doubt exists about intent. |
31 August 1979 |
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The applicant’s revenge-driven, premeditated murders did not constitute mitigating circumstances; appeal dismissed.
Criminal law – Murder – Mitigating (extenuating) circumstances – revenge and grief do not necessarily amount to mitigation; appellate review of assessors’ divergent views; legal limits on reserving death sentence to ‘most extreme’ cases. |
27 August 1979 |
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Whether a printed auction exemption clause bars vendor liability for pre-auction representations and whether ambiguity invokes contra proferentem.
Contract interpretation – printed auction sale conditions – exemption clause – whether clause precludes reliance on prior representations – ambiguity – contra proferentem applies; auctioneer versus vendor liability; exception to alternative plea.
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24 August 1979 |
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Court construes s.21(1C): insurer alone may elect statutory undertaking; court cannot prescribe detailed content without insurer’s consent; instalments need not be prefixed by a lump sum.
Motor Vehicle Insurance Act s.21(1C)(a)–(b) — construction of insurer’s statutory undertaking — insurer’s election to furnish undertaking — scope of court’s power to prescribe contents — undertaking limits: reasonable costs in categories of hospital accommodation, treatment, services, goods — s.21(1C)(b) — no requirement to quantify globular lump sum; court may direct instalment schedule; instalments cease on death/at 60.
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24 August 1979 |
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A landlocked owner is entitled to a permanent right of way; court fixes route, width and compensation.
Servitudes – right of way of necessity (jus viae) – distinction between jus viae precario and jus viae plenum – route selection rule: nearest and least damage – proof required as to necessity, route, width and compensation – magistrate’s court jurisdiction to determine and order registration of right of way – assessment of justum pretium.
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24 August 1979 |
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The respondent's version preferred; the driver was negligent and the applicant's appeal dismissed.
Motor-vehicle negligence — causation — credibility of witnesses — admissibility and weight of police statements and inquest evidence — effect of post‑accident conduct and blood‑alcohol result — appellate assessment of probabilities; costs — two counsel refused.
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23 August 1979 |
| June 1979 |
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Whether a letter acknowledging future commission created an enforceable undertaking by the principal to pay a third party.
Contract – Interpretation of written undertaking – ambiguity in letter acknowledging future commission – whether letter constituted unqualified undertaking by employer to pay third party – admissibility and scope of extrinsic evidence to resolve ambiguity – acceptance of stipulation in favour of third party – reliance/estoppel and liability of principal for agent’s conduct – condonation of late appeal.
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5 June 1979 |
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Whether an ambiguous letter constituted an enforceable undertaking and when extrinsic evidence may be used to imply contractual obligation.
Contract interpretation — written instrument (Exhibit A) ambiguous — whether it constituted an unconditional undertaking to pay a third party’s creditor — admissibility of surrounding circumstances and extrinsic evidence only where instrument ambiguous and existence of contractual obligation established — reliance/trust (estoppel) argument considered but minority view.
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5 June 1979 |
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Whether work-injury patients in a closed teaching hospital are private patients for physician fees; appeal dismissed.
* Workmen's Compensation / Ongevallewet – B.O.D. patients – status in closed teaching hospitals – not private patients for doctors' fees unless treated within authorised limited private practice. Criminal law – fraud – false representation and mens rea – applicant's contemporaneous letters and conduct relevant to honest belief. Medical practice – head of department claiming fees for work done by subordinates – not decided but potentially permissible if patients are private. |
4 June 1979 |
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Driver in a sudden emergency who braked instinctively was not negligent for not swerving or sounding horn.
Delict — motor collision — sudden emergency — objective standard judged by driver’s knowledge at moment not by hindsight; failure to swerve or to sound horn not negligent on these facts; force of collision not dispositive without supporting evidence.
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4 June 1979 |
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The appellant's death sentence for murder upheld; death for robbery replaced with 12 years' imprisonment.
* Criminal law – murder and robbery with aggravating circumstances – mitigating factors (youth, education, intoxication, influence of co‑accused) – appellate review of sentencing discretion – appropriateness of death sentence where victim's death forms basis of separate murder conviction. |
4 June 1979 |
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Taxation of costs is part of judicial proceedings; only advocates or attorneys may appear before the taxing master.
Taxation of bills of costs — Right of audience — Taxing master as court officer — Non‑qualified taxing consultants not entitled to appear — Rules and statutes do not displace common‑law prohibition — Local practice insufficient to establish right.
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1 June 1979 |
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Whether the respondent’s testimony and admissions sufficiently proved paternity despite the corroboration rule.
Family law – Paternity – proof on balance of probabilities – role of corroborative (stawende) evidence and weight of admissions and circumstantial facts. Damages – kraamkoste and loss of earnings – separate awards permissible where loss of earnings not subsumed in agreed kraamkoste. Civil procedure / professional conduct – improper interviewing of a vulnerable litigant and taking sworn statements at maintenance inquiry condemned. Evidence – blood-group tests which do not exclude paternity admissible but not conclusive.
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1 June 1979 |
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The appellants' gang-conspiracy murder convictions and sentences, including death and life terms, were upheld; duress defence failed.
Criminal law – Murder – Gang-organised killing in prison cell – Credibility of convict eyewitnesses and prison officers – Conspiracy and common purpose liability – Duress/compulsion defence and partial-excuse rule – Extenuating circumstances and death sentence – Appellate review of credibility findings. |
1 June 1979 |
| May 1979 |
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Whether the collision hastened the deceased’s death and by how long; five‑year acceleration upheld.
Delict – causation and acceleration of death – medical expert evidence – assessment of life‑shortening due to aggravation of pre‑existing coronary disease – weight and credibility of experts – proof on balance of probabilities.
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30 May 1979 |
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Whether a municipal prohibition on conducting receiving-depot business "at a vehicle" is void for vagueness.
Municipal regulation – vehicles used as receiving depots – Power of local authority under Ordinance to prohibit, restrict and supervise. Statutory interpretation – meaning of "at a vehicle" to be derived from context; conducting business from a stationary vehicle used as a receiving depot. Vagueness doctrine – resolution not void for uncertainty where meaning is ascertainable in context. Criminal liability – requirement of continuity to "carry on a business"; isolated handovers insufficient.
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30 May 1979 |
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Agent who procures binding offer and effects sale is entitled to commission as the efficient cause.
Agency — Mandate to find purchaser — existence of oral mandate established on probabilities; Agency — Commission — when earned: agent who procures binding offer and whose acts are efficient cause of sale entitled to commission; Prior knowledge of prospective purchaser by principal — does not necessarily defeat agent’s claim where agent effects binding offer and precipitates sale; Evidence — credibility of witnesses and inferences of collusion to avoid commission; Quantum — commission at agreed 5% on purchase price, subject to plaintiff’s claim and Wet No. 55 of 1975.
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30 May 1979 |
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Appeal against a 12-month fraud sentence reduced to provide six months concurrent custody due to misdirection and mitigation.
Criminal law—Fraud—False statements to bank to obtain settling-in foreign-exchange allowance—Element of prejudice may be satisfied by some risk of harm, not necessarily probable or financial—Mitigation and misdirection on whether applicant asked bank not to process application material to sentence—Sentencing: partial concurrency substituted. |
30 May 1979 |
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Appellate court rejects drunkenness automatism, substitutes rape conviction and imposes seven‑year sentence.
Criminal law — sexual offences — abduction and sexual assault of a child; identification and circumstantial evidence — medical corroboration — drunkenness/automatism defence — appellate powers under s 322 to alter convictions and impose heavier sentences; sentencing for serious sexual offences involving children. |
29 May 1979 |
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Eyewitness and circumstantial evidence proved common‑purpose murder; no extenuating circumstances — appeals dismissed.
Criminal law – murder in prison cell – credibility of eyewitnesses – corroboration by circumstantial evidence (bloodstains, weapons) – medical evidence on intestinal injuries – common purpose – extenuating circumstances (prison gang culture) – mandatory death sentence. |
29 May 1979 |
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Collision in a dust cloud does not alone establish driver negligence; plaintiff failed to prove foreseeability and breach.
Motor-vehicle collisions – dust clouds – liability – whether collision in dust cloud creates prima facie negligence; onus of proof of negligence; reliability of post-accident tracks and glass in fixing point of impact; foreseeability of other driver's reckless conduct.
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29 May 1979 |
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Whether MVA claims require strict compliance with prescribed form and medical/post‑mortem reports and correct assessment of future loss of support.
Motor vehicle insurance — s.25(1) and prescribed Form MVA 13 — signature requirement directory; substantial compliance by authorised attorney’s cover letter — medical report provision directory; Reg.16(1)(b)(ii) where killed outright — post‑mortem and death certificate may suffice when read with supplementary documents — assessment of future loss of support based on earning capacity; exclusion of illegal income; judicial discretion on contingencies and remarriage allowances.
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29 May 1979 |
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Appellate court found driver negligent after trial court misweighed probabilities; plaintiff awarded agreed damages with costs.
Compulsory Motor Vehicle Insurance – motor collision – negligence – evaluation of conflicting witness accounts and probabilities – appellate review of credibility findings not based on demeanour – effect of uncalled or available witnesses.
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29 May 1979 |
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On the probabilities the insured vehicle’s driver was negligent in a rear-end collision with the cyclist; no contributory negligence.
Motor vehicle negligence – rear-end collision involving cyclist – assessment of conflicting versions and appraisal of probabilities. Credibility – appellate review where trial court did not rely on demeanour – inferences from findings of fact. Contributory negligence – no apportionment where plaintiff’s version accepted. Evidentiary significance of failure to call an available passenger and of corroborative eyewitness evidence.
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29 May 1979 |
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A court where the respondent resides may hear a s.31 appeal against the Board; relief is declaratory, not mandatory.
Civil procedure – Jurisdiction of provincial Divisions – Appeal under s.31 Estate Agents Act is remedial (declaratory/empowering) not mandamus; s.26(1) Supreme Court Act gives procedural reach but does not by itself confer substantive territorial jurisdiction; forum domicilii appropriate where relief is declaratory.
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28 May 1979 |
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Appellant's convictions set aside where they relied on an inadmissible police confession and unreliable pointing-out evidence.
* Criminal procedure – Confession – Section 244(1) Criminal Procedure Act 56/1955 second proviso – confession to peace officer not reduced to writing before magistrate inadmissible. Evidence – Answers elicited by defence (Rex v Bosch) – Bosch principle inapplicable where the answer is irrelevant or improperly elicited and thereby prejudicial. Evidence – Pointing-out by accused – reliability affected by investigator’s inconsistencies and failure to call corroborating police witnesses. Appeal – Conviction unsafe where it rests on inadmissible confession and unproved pointing-out; appellate court may set aside. |
28 May 1979 |
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Once an appeal is set down and sentence variation is in issue, the appellant cannot withdraw without leave; sentence increased to three years.
Criminal appeal procedure — withdrawal of appeal — inability to withdraw without leave once appeal is set down and court or Crown has intimated consideration of increasing sentence; Appellate powers — court may vary or increase sentence on appeal where justice requires; Sentencing — trial court misdirected in mitigation where conduct was premeditated, sustained and cruel; Age/ill‑health — mitigating but not decisive where offences and public interest demand heavier sentence. |
25 May 1979 |
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Whether a lease’s clause granting a right to buy at R10,000 with R3,000 deposit and balance by instalments constituted a valid, enforceable option.
Property/Contract — Lease containing right to purchase — Whether clauses creating right to buy at stated price with deposit and balance payable "op huurkoop af te betaal" over ten years are sufficiently certain to form a binding option and, if exercised, a binding sale — certainty of essential terms and role of implied/common-law rules supplying incidental matters.
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25 May 1979 |
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Appellate court found collision occurred on the Baracuda’s side, establishing Valiant driver’s negligence; appeal allowed with costs.
Motor‑vehicle collision — determination of point of impact by tyre/gouge marks, debris and photographs; weight of contemporaneous police observations versus late eyewitness reconstruction; role of expert reconstruction dependent on factual premises; credibility and appellate review where trial judge’s view held plainly wrong.
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25 May 1979 |
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The applicant's murder convictions were upheld but sentences reduced for disproportionality given mitigating circumstances.
* Criminal law – Murder – Claim of self‑defence and defensive firing – assessment of credibility and expert evidence on shotgun pellet spread. Evidence – Trial court's adverse credibility findings – when appellate court will not interfere. Sentencing – Appellate interference where trial sentence is disproportionately severe; mitigation for prolonged harassment by poachers; concurrent running of unsuspended terms. Ancillary orders – Compensation to dependants and firearms disqualification. |
22 May 1979 |
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Appeal allowed in part: four duplicative dealings convictions set aside; eleven convictions and aggregate 15-year cap upheld.
Criminal law — Dangerous Drugs Act 41/1971 s.2(a) — "handeldryf" widely defined — splitting of charges — multiplicity of convictions where counts relate to same shipment/stock — setting aside duplicative convictions; sentence review. |
18 May 1979 |
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Appellant’s blind, lethal stab while escaping negated lawful self‑defence but amounted to culpable homicide; sentence reduced to four years.
Criminal law – self‑defence – whether force used was necessary and proportional when intruder opened door – murder v. culpable homicide – assessment of credibility and onus to negativate self‑defence – sentencing considerations where culpable homicide substituted for murder. |
18 May 1979 |
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A written exchange agreement requiring delivery of land is a "written contract" for prescription purposes; appeal dismissed.
Prescription — written versus oral contracts — whether obligation to deliver land embodied in writing or collateral oral agreement. Admissibility of extrinsic/oral evidence to identify land referred to in a written contract. Appealability — when dismissal of a special plea constituting a complete defence is appealable as a final order under s.20(1) of the Supreme Court Act. Exchange (barter) contracts distinguished from formal statutory sale-of-land requirements.
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17 May 1979 |
