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Citation
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Judgment date
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| December 1980 |
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Bank held liable for manager’s fraudulent, unauthorised endorsement that induced the sale and caused patrimonial loss.
Delict — Fraudulent misrepresentation — endorsement of promissory note by bank manager without authority — implied representation of bank guarantee and borrower’s financial soundness — inducement to sell shares — causation and remoteness of loss. Bank law — vicarious liability for unauthorised acts of branch manager where representation induced third party to act.
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3 December 1980 |
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Bank held liable for manager's fraudulent implied guarantee inducing purchaser and causing patrimonial loss.
Delict — Fraudulent misrepresentation by bank official — implied representation by endorsement of promissory note as bank's guarantee — inducement and causation. Bank law — authority of branch manager to bind bank; consequences of unauthorised endorsement. Causation — remoteness and policy limits on liability where the misrepresentation precedes later default.
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3 December 1980 |
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Whether newspaper accusations of extremist motives were fair comment on public interest or actionable defamation.
Defamation — fair comment — opinion vs fact — ordinary reader test — factual foundation/public knowledge — imputations as to motive — South African reasonableness standard.
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2 December 1980 |
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Whether accomplices are guilty of murder under common purpose and whether a death sentence was appropriate.
* Criminal law – murder – liability of co-accused – distinction between mededader (co-perpetrator) and mere participant; need for proof of common purpose to kill or subjective foresight for dolus eventualis. Criminal law – accomplice liability – mere presence or failure to dissociate insufficient; active participation or provision of opportunity/means required. Sentencing – discretionary death sentence – court must not double-count aggravating facts from a separate offence when sentencing for robbery. Appeal – appellate review of credibility and factual findings: trial court’s acceptance of credible eyewitness evidence upheld
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2 December 1980 |
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Driver’s reasonable reaction to a sudden, unforeseeable kneeling pedestrian at night did not amount to negligent conduct.
* Motor collision — causation and negligence — duty to keep proper lookout — visibility at night and effect of dazzling lights on night vision; Evidence — illumination tests, ophthalmological opinion and stopping-distance calculations; Sudden emergency — reasonable exercise of judgment in braking and swerving; Foreseeability — unusual position of kneeling pedestrian not reasonably foreseeable; Procedural — new, unpleaded ground (failure to use full beams) not considered
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2 December 1980 |
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Appeal against sentence for unlawful possession of a hand grenade dismissed; sentence not excessive.
Criminal law – unlawful possession of explosive/hand grenade – sentencing – intoxication not sufficient mitigation where possession and concealment were deliberate – recklessness in displaying/leaving dangerous weapon – prior convictions relevant – comparison with co-accused not dispositive
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2 December 1980 |
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A magistrate-statement may be admissible; violence closely connected to a theft can constitute robbery.
* Criminal law – Evidence – extra-judicial statement to magistrate – s 219A(1) Criminal Procedure Act – effect on proof and burden as to voluntariness. Criminal procedure – interpreter’s certificate – role in evidential effect of magistrate statement. Evidence – identification – reliability of identification parade and in-court ID; evaluation of cumulative evidence (confession, ID, possession of stolen goods). Criminal law – robbery – timing of violence relative to contrectatio; violence closely connected in time/place/purpose can constitute robbery. Sentence – appeal against severity – not startling in view of aggravating factors
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2 December 1980 |
| November 1980 |
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Applicant’s sentence for unlawful purchase of rough diamonds upheld; second applicant’s appeal struck for non-prosecution.
* Criminal law – Precious Stones Act s 84(1)(a) – unlawful purchase/dealing in rough diamonds – seriousness of offence and sentencing. Sentencing – appellate review – scope limited to misdirection, irregularity or unreasonable exercise of discretion. Agency/principal – statutory penalties do not distinguish in sentencing. Procedure – appeal struck where appellant fails to prosecute
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28 November 1980 |
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Whether evidential material sufficed to resist absolution for negligent failure to leave adequate space passing a child cyclist.
Delict — Motor accidents — Application for absolution from the instance — Proper test: whether a reasonable court could find for plaintiff — Duty of motorist to leave sufficient lateral space when passing a child cyclist; foreseeability of sudden swerving (age, wind, road layout)
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28 November 1980 |
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A driver who swerved onto the wrong side despite safe left verge space acted unreasonably; appeal dismissed with costs.
* Motor-vehicle collision; negligence – sudden emergency doctrine – standard of reasonable driver when oncoming vehicle is partly on wrong side; assessment of credibility and reasonableness of evasive manoeuvres; appellate deference to trial judge’s factual findings
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28 November 1980 |
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Appeal dismissed: plaintiff failed to prove insured driver’s negligence or that any omission caused the collision.
Road traffic — Negligence — Collision at intersection — Credibility of witnesses and effect of inconsistent prior statement; Duty of driver indicating left turn to check rear-view mirror for traffic behind; Causation and apportionment — failure to prove that omission by turning driver caused collision; Appeal dismissed for lack of proof.
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28 November 1980 |
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Rectification of an appeal record after the prescribed period does not excuse failure to obtain condonation; appeal struck off the roll.
* Civil procedure – Appellate practice – Lodgment of record – defective record tendered on last day of prescribed/extended period – registrar’s refusal – rectification after expiry does not negate need for condonation or court order. Civil procedure – Striking appeal from roll for failure to lodge proper record in time and absence of consent or condonation. Company law – effect of striking off and subsequent restoration of foreign company on appeal and third‑party intervention. Costs – discretionary award including costs consequent upon employment of two counsel where appeal struck off the roll
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28 November 1980 |
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Child witnesses’ trustworthy evidence can suffice in civil claims; driver negligent for failing to look out while reversing.
Civil evidence — Weight of child witnesses — No rigid corroboration rule in civil cases; assess trustworthiness (observation, recollection, narration) — Delay or absence of immediate complaint not necessarily fatal — Motor negligence: failure to keep proper look‑out when reversing
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28 November 1980 |
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Trial court’s credibility findings and the applicant’s conduct justified dismissal of appeal against shoplifting conviction.
* Criminal law – theft – credibility of witnesses – appellate court will not lightly disturb trial court’s findings of credibility. Criminal law – conduct on confrontation – false or implausible explanations and failure to volunteer innocent account may reinforce inference of guilt. Procedural – failure to call possible witnesses not fatal where other evidence proves guilt beyond reasonable doubt
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27 November 1980 |
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Appeal against absence of mitigating circumstances and sentence dismissed; trial court’s factual conclusions upheld.
Criminal law – murder and robbery – mitigating circumstances – effect of role in planned crime, dolus eventualis, and use of dagga – appellate restraint in overturning trial court’s factual/discretionary findings
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27 November 1980 |
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Appellant's self‑defence account rejected; evidence supports murder conviction (dolus eventualis) and 12‑year sentence.
Criminal law — Murder — Self‑defence claim — Credibility assessment of sole accused — Forensic pathology evidence of multiple blunt‑force cranial injuries — Dolus eventualis established — Sentence appeal, reasonableness of 12 years' imprisonment
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25 November 1980 |
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Whether a patentee’s lost initial years of exploitation can establish inadequate remuneration justifying an extension.
Patent law — s39(1)(a) Patents Act — extension of term — requirement to establish inadequate remuneration as an objective factual matter before exercise of discretion under s39(4) — relevance of ‘lost years’ (delay in exploitation) — role of patentee’s fault — sufficiency of evidence where precise accounting absent
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25 November 1980 |
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A through-road driver’s failure to keep a general look-out may render him causally negligent despite the other driver's greater fault.
Road-traffic collision — Duty of driver on through road to keep general look-out — Failure to observe cross-road traffic may be causally negligent — Horn and acceleration issues unnecessary to decide where look-out failure caused collision — Apportionment of fault upheld.
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25 November 1980 |
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Whether a Ciskei civil court may make election disqualification orders or such power is confined to criminal courts.
Election law — Proclamation B194 s75(1)(b) — construction of "found guilty", "any person" and "in addition to any penalty imposed" — whether power to make disqualifying/incapacity orders vests in civil or criminal courts — s77 Proclamation: resort to Act s131(1)(b) and applicability to Ciskei elections.
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25 November 1980 |
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A pledgee may be a holder in due course and a transferee can assert holder-in-due-course rights if not party to fraud.
Bills of Exchange Act – holder in due course – pledgee status – taking as pledgee does not preclude holder in due course; consideration includes granting overdraft facilities; transferee deriving through holder in due course may assert those rights under s 27(3) even if the transferee took after dishonour.
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25 November 1980 |
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Minister lawfully prohibited renewal of trading licences in a proclaimed Group Area; vacate notices were valid and reasonable.
Community Development Act s43A(1)-(3) – construction of "licence referred to in subsection (1)" – applies to trading/occupational licences generally (including renewals); Group Areas Act (1966) s23(2)(b) – notices to vacate – no implicit statutory duty on Minister to consider availability of alternative accommodation at notice stage; administrative law – reasonableness of notices and use of temporary permits; ministerial notification prohibiting licence renewals held lawful.
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25 November 1980 |
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Conviction set aside because assessors were not permitted to hear material trial-within-a-trial evidence affecting accomplice credibility.
Criminal procedure – assessors – duty to decide on evidence placed before them – evidence given in a trial-within-a-trial must be repeated before the full court if material to issues the assessors must decide. Criminal law – accomplice evidence – caution required where accomplice testimony conflicts with other evidence; credibility assessments must be made with assessors having heard all relevant evidence. Irregularity – reference to evidence not heard by assessors is prima facie irregular and may be prejudicial rendering a conviction unsafe.
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24 November 1980 |
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Voluntary intoxication is not an automatic defence; if it negates mens rea the accused may not be convicted of specific‑intent offences.
* Criminal law – Intoxication – voluntary intoxication is not a blanket defence; degrees of intoxication determine capacity to form intention – if intoxication destroys mens rea or renders accused unconscious there is no criminal responsibility – where intoxication negates specific intent accused entitled to benefit of reasonable doubt. Evidence – assessment of intoxication requires careful factual inquiry. Precedent – prior authorities (e.g. S v Johnson) remain applicable; public policy does not compel categorical change
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24 November 1980 |
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Voluntary intoxication and gang membership did not mitigate culpability; appeal against murder conviction dismissed.
Criminal law — Murder — Voluntary intoxication — Whether intoxication amounts to extenuating circumstance reducing moral blameworthiness — Gang membership and alleged psychological compulsion — Credibility and role of appellant in group attack
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21 November 1980 |
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Appeal against death sentence dismissed: no proven mitigation from intoxication, provocation, or youth.
Criminal law – murder – mitigation – intoxication, provocation and youth as potential mitigating circumstances – evidentiary burden on accused to prove mitigation on balance of probabilities – appeal against death sentence where trial court found no mitigating circumstances
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21 November 1980 |
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The applicant, as effective cause of the sale, was entitled to commission despite variation from the original mandate.
Agency law – entitlement to commission; effective cause of sale; variations between mandate terms and eventual sale; seller’s asserted ‘net’ price and abandonment of condition; admissibility and probative value of recorded telephone evidence; proof where purchaser not called.
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20 November 1980 |
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Appeal dismissed: psychiatric and factual evidence did not establish mitigating circumstances or coerced confession.
Criminal law – appeal against conviction and sentence – mitigating circumstances – alleged epilepsy, schizophrenia or temporal-lobe damage – expert psychiatric evidence – intoxication and alleged fear of sorcery (toordokter) – admissibility and voluntariness of s.112(1)(b) confession
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17 November 1980 |
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Unproclaimed new housing area was not a ‘Black residential area’; board could charge Commission rent and service fees but not add site rent.
Urban Areas Act – meaning of ‘Black residential area’ (location) – Ministerial proclamation required; Housing Act s.61 – Commission’s administrative determination of rentals for dwellings (including site); Administration Act s.11 – board’s administrative power to provide and charge for services; ultra vires addition of site rent by board; Community Council jurisdiction and ejectment in unproclaimed area.
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14 November 1980 |
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Liquidator must prove an alienation was outside the ordinary course; sale of franchise stock with franchisor’s concurrence was in the ordinary course.
Insolvency Act s 34(1) – alienation "in the ordinary course of that business" – objective test whether a solvent trader carrying on that kind of business would normally have transacted it – onus on liquidator to prove alienation not in ordinary course – franchise agreement terms part of business – sale to successor dealer with franchisor’s concurrence held in ordinary course.
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14 November 1980 |
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Appeal dismissed: custodial witnesses credible; single-witness identification and forensic corroboration sufficed to uphold murder convictions.
Criminal law – murder in prison – identification by custodial officers – evaluation of witness credibility – single-witness conviction permissible if clear and satisfactory – minor inconsistencies expected in sudden violent events – forensic corroboration of multiple weapons
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14 November 1980 |
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Death sentence set aside where earlier-found mitigating circumstances (youth, intoxication, lack of premeditation) made it inappropriate; substituted by 14 years' imprisonment.
Sentencing — Death penalty — Mitigating circumstances (youth, intoxication, absence of premeditation) — Inconsistency between finding of mitigation and conclusion of "inherent wickedness" — appellate interference and substitution of sentence — concurrent sentences
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13 November 1980 |
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Whether driver negligently failed to foresee a pedestrian’s sudden, reckless run into the roadway.
Delict — Negligence — Motor collision with pedestrian — Foreseeability of erratic movement by possibly intoxicated pedestrian; credibility findings; distinction from Norwich Union v Tutt; contributory negligence.
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11 November 1980 |
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Confession and accomplice evidence were insufficiently corroborated; conviction and death sentence were set aside.
* Criminal law – confession – whether magistrate-recorded statement constituted an unequivocal confession; admissibility and weight. Criminal law – s 209, Act 51 of 1977 – requirement that confession be confirmed in a material respect or that murder be proved independently. Evidence – accomplice evidence – reliability and corroboration; discredited accomplice cannot confirm confession. Forensics/identification – medico-legal findings inconsistent with confession; identification of remains not proved beyond reasonable doubt. Standard of proof – insufficiency of evidence to sustain conviction beyond reasonable doubt
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7 November 1980 |
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A creditors' meeting may subpoena and interrogate persons on matters relevant to the company's affairs; prior judgments do not bar such inquiry.
Companies Act — s414(2), s415 — subpoenas and interrogation at creditors' meetings — scope of inquiry — relevance test mandatory. Res judicata — prior judgment against a company before winding-up not binding on liquidator or creditors. Evidence — affidavits in prior proceedings do not bar interrogation; statements at inquiry admissible against company. Liquidator of associated company — may be subpoenaed for information in his possession relevant to the insolvent company's affairs. Review — court may decide issues on record even if presiding officer did not consider them.
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6 November 1980 |
| October 1980 |
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Court affirms convictions where identification and confession proved participation; discrepancies and youth insufficient to avoid murder convictions.
Criminal law — identification evidence — post‑incident identification parade and prior acquaintance of witnesses; evaluation of inconsistent eyewitness accounts; admissibility and weight of extra‑judicial confession; mitigation (youth, intoxication) in murder sentencing
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7 October 1980 |
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Appellant’s murder conviction and death sentence upheld; death sentence on related robbery set aside and replaced by fifteen years.
Criminal law – murder and robbery – credibility of accused’s account – medical evidence of blunt-force injuries – dolus eventualis – extenuating circumstances – sentencing discretion – prohibition on duplication of punishment where same fatal consequence underlies both convictions
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3 October 1980 |
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Acknowledgement of debt can create a separate co-existing obligation; cession of those rights does not unlawfully impair original rights.
Acknowledgement of debt – express undertaking – creation of new co-existing obligation alongside original obligation under deed of sale; Cession of rights – cession of acknowledgement of debt to third party does not amount to unlawful partial cession requiring debtor’s consent; Negotiable instrument analogy – interdependence of obligations and debtor’s protection; nemo plus juris – assignee takes subject to cedent’s restrictions and defenses.
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1 October 1980 |
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Appellate court reduced sentence where trial court overemphasised public interest and overlooked substantial mitigating circumstances.
Sentencing — unlawful possession of firearm — balancing community protection and deterrence against offender’s personal circumstances and prospects of reform — appellate intervention where custodial sentence is disproportionate
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1 October 1980 |
| September 1980 |
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"Foetus" in the Act construed broadly; convictions reinstated where admissions showed termination of live pregnancies.
* Criminal law – Abortion Act 2 of 1975 – definition of "abortion" as "abortion of a live foetus" – term "foetus" construed broadly to include early embryonic stages; no statutory temporal cutoff. Evidence – admissions under section 220 – contextual interpretation; ambiguous admissions construed in favour of accused but here unambiguous and sufficient. Sentencing – six months imprisonment upheld in view of prior convictions and public danger of backstreet abortions
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30 September 1980 |
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Appellate court found dolus eventualis, mitigated culpability and reduced sentence to seven years’ imprisonment.
Criminal law – murder – distinction between dolus directus and dolus eventualis; provocation, intoxication and personal background as mitigating circumstances; appellate substitution of sentence (death set aside, seven years’ imprisonment imposed).
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30 September 1980 |
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A remote family/tribal feud did not constitute extenuating circumstances for a calculated, common‑purpose murder; appeal dismissed.
Criminal law – Murder – Common purpose – Ambush shooting; Ballistics evidence linking accused to fatal shot; Extenuating circumstances – alleged clan/tribal feud – remoteness and insufficiency; Appeal – limited review of trial court's discretionary finding on extenuation; mandatory death sentence context
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30 September 1980 |
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Section 14(3) requires payment to the insolvency/execution official who may apply proceeds to administration costs before paying the cessionary.
Sale of Land on Instalments Act s 14(3) — interpretation of "payment of the outstanding balance under the agreement" — payment to deputy sheriff/ trustee/ liquidator — application of proceeds to costs of sequestration and administration (including endowment) before accounting to cessionary — statutory modification of common law.
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29 September 1980 |
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Purchaser under hire‑purchase had locus standi after full payment; appeal allowed and damages fixed at R666.
Hire‑purchase – transfer of ownership upon full payment; locus standi to sue in purchaser’s name; condonation for late notice of appeal; sufficiency of evidence for vehicle value and total loss; absolution of the instance inappropriate where plaintiff proves interest; contributory negligence reducing quantum.
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29 September 1980 |
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Failure to inform an unrepresented accused of the right to lead mitigation evidence renders the death sentence irregular and remittal necessary.
Criminal procedure – Sentencing – Duty to inform unrepresented accused of right to lead evidence in mitigation – Failure to explain right to call witnesses is a gross irregularity – Death sentence set aside and matter remitted for mitigation and re-sentencing
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29 September 1980 |
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Appellant’s credible explanation about reimbursements for secret payments defeated fraud convictions; convictions set aside.
Criminal law — fraud/theft — credibility and reasonable possibility — secret governmental payments to anonymous operatives — evidential weight of contemporaneous documents and departmental procedures — requirement to prove prejudice/loss
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29 September 1980 |
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Whether claimant was entitled to the full State subsidy as agreed for restoration work; appeal dismissed.
Contract and pleadings – effect of admissions in plea – where plea admits nature and performance of work, dispute limited to amount payable. Evidence – credibility and probabilities – appellate court will not interfere absent misdirection. Subsidy/apportionment – State payment documents govern scope of subsidy claimed; unpleaded apportionment cannot defeat claim. Proof of performance – failure to prove ancillary road repairs did not defeat claim when pleadings and documents addressed only arable land restoration.
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29 September 1980 |
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An appellate court will not interfere with a trial judge’s discretionary imposition of a death sentence absent misdirection or unreasonableness.
Criminal law – sentencing – robbery with aggravating circumstances – appellate interference with trial judge’s sentencing discretion – proper weighing of mitigating and aggravating factors – discretionary death sentence under s.277(1) and definition of aggravating circumstances
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29 September 1980 |
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A judicial officer’s qualified privilege is defeated only where publication was maliciously intended to expose the respondent to odium.
Defamation; Judicial officers — qualified privilege; Abuse/exceeding privilege defined by publication with object to expose to odium (Voet: ad concitandam invidiam atque infamiam); Lack of reasonable foundation not automatically fatal; Onus on plaintiff to prove malice/abuse of authority.
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26 September 1980 |
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Convictions set aside due to magistrate's misdirection and unreliable police identification evidence.
* Criminal law – public violence/rioting – identification evidence – single police witnesses – evaluation of credibility. Misconduct/misdirection by magistrate – prejudicial characterisation of accused and circular reasoning from limited arrests to reliability of identification. Principles for rejecting accused's testimony – accused's evidence cannot be dismissed without clear, articulated reasons. Appeal – convictions set aside where reasonable doubt not excluded
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26 September 1980 |
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Driver negligent for inadequate lookout and driving too close to parked cars; plaintiff not contributorily negligent.
Negligence – motor collision – failure to keep proper lookout and driving too close to parked cars; Sudden emergency – over-reaction to potential hazard does not exculpate driver; Contributory negligence – burden on defendant not discharged where probabilities and credibility favour pedestrian; Assessment of credibility and probabilities in long-delayed accident cases.
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25 September 1980 |
