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Citation
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Judgment date
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| 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 |
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Death sentence set aside; appellant re-sentenced for murder to ten years’ imprisonment after mitigation assessment.
Criminal law – Sentencing – Appropriateness of death sentence – Assessment of mitigating and personal circumstances – Prior convictions’ relevance to sentencing
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25 September 1980 |
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An interlocutory dismissal of an exception can be appealable if it is final in effect and disposes the substantive issue.
Civil procedure – Appealability – Interlocutory order dismissing exception to special plea – When such an order is final in effect and appealable without leave. Police Act s 32(1) – Notice requirement – Computation of the one-month period – incorrect method at trial. Procedure – in forma pauperis – leave to prosecute appeal granted. Pleadings – where pleadings contain all relevant facts, dismissal of exception may be "the final word" and not reparable at final stage.
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25 September 1980 |
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A magistrate may validly issue a s 309(3) arrest warrant if convinced by the officer’s relaas, even after putative service.
Criminal Procedure Act s 309(2) and (3) – service of summons – putative (vermeende) service at occupant of address – relaas (officer’s report) as basis for magistrate’s satisfaction – warrant for arrest – validity of arrest and detention; distinction between non‑appearance and excusability of non‑appearance (s 309(5)); vicarious liability and animus in juriandi unnecessary to decide.
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25 September 1980 |
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An appeal under s45(3) is an ordinary appeal; unsupported disciplinary findings were set aside.
Pharmacy law – Disciplinary inquiry – Right of appeal under s45(3) and s24(2) – Appeal is an ordinary appeal on the record, not confined to review. Administrative law – Appellate approach – Deference to tribunal on professional/ethical judgments but power to reverse unsupported factual findings. Evidence – Hearsay and failure to call complainant or named person undermine disciplinary findings. Procedure – Board may (and prudently should) appoint assessor under s39(4).
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25 September 1980 |
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Appeal dismissed: convictions for murder and robberies affirmed; intoxication not sufficient mitigation to avoid death sentence.
Criminal law – murder and robbery – evaluation of witness credibility and inconsistencies – joint liability of co-perpetrators – cautionary approach to possible accomplice evidence – intoxication as extenuating circumstance; appellate re-evaluation of mitigation
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25 September 1980 |
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Death sentence set aside; conviction substituted to accessory after the fact due to lack of mens rea for murder.
Criminal law – guilty plea and appeal in death cases – court may consider accused’s extenuating evidence on appeal (s.121(5)(b)); mens rea – requirement of subjective foresight for murder where victim differs from intended target (aberratio ictus/alternative dolus); substitution to accessory after the fact – sentencing – prior conspiracy may aggravate where closely causally connected
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23 September 1980 |
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Appellant's manslaughter conviction set aside; State failed to prove negligent authorisation of parachute jump.
Criminal law – Culpable homicide (manslaughter) – negligence standard – credibility of witnesses and appellate review of factual findings – meteorological evidence and wind variability at drop zone – duties of drop‑zone safety officer and adherence to S.O.P
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22 September 1980 |
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Applicant’s appeal dismissed: found complicit in sham sale, liable for R12,600 and attorney-and-client costs.
Fraud – sham sale of livestock – written sale and cession held to be a contrivance to obtain company funds; participants jointly and severally liable for R12,600. Apportionment of damages (Apportionment of Damages Act 34 of 1956) – principal perpetrators more blameworthy; equitable division 20%/40%/40%. Attorney-and-client costs – justified where litigant acted dishonestly, gave false evidence and maintained a concocted defence. Condonation – delay and explanation insufficient where merits do not justify overturning trial findings.
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22 September 1980 |
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Whether the trial court correctly convicted the appellant for inciting military training under the Terrorism Act.
* Terrorism Act s 2(1)(b) – incitement/encouragement to undergo military training; corroboration and accomplice evidence; credibility assessment. Effect of detention and interrogation on witness reliability – trial court’s scrutiny. Appellate review of demeanour findings – limited interference absent material misdirection
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18 September 1980 |
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Discretionary death sentences for armed, planned robberies upheld where evidence showed intent to use firearms and real danger to public.
Criminal law – Sentencing – Discretionary imposition of death penalty – Whether misdirection vitiated exercise of discretion – Use of firearms during robberies and intention to injure – Previous convictions, escapes and rehabilitation prospects – Appeal against sentence dismissed
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18 September 1980 |
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Appellant’s mere presence and false testimony were insufficient to prove participation or common purpose in the fatal assault.
Criminal law – circumstantial evidence – presence versus participation – forensic blood and hair evidence – weight of false or inconsistent testimony – common purpose (gemeenskaplike opset) – limits on using rejected testimony to fill evidential gaps
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16 September 1980 |
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Applicant’s conviction for assisting persons to obtain terrorist training upheld despite inadmissible documentary evidence.
Criminal law – Terrorism Act s 2(1)(b) – admissibility of documents under s 2(3) – photostatic copy as hearsay – weight of documentary evidence; credibility and corroboration of State witnesses; proof of mens rea inferred from conduct; effect of alleged police ill‑treatment on witness reliability
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16 September 1980 |
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16 September 1980 |
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Whether a one-month statutory notice under section 32(1) is to be computed civiliter or as a 'clear' month.
Police Act s32(1) — statutory notice to sue — computation of a one-month period — ordinary civil rule (include first day, exclude last) applies absent clear contrary intention; distinction between periods expressed in days/weeks and months/years; "at least"/"before" insufficient to displace civil computation
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15 September 1980 |
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Applicants' housing need did not justify unlawful occupation; Proklamasie under the Group Areas Act held valid.
Group Areas Act – Proklamasie validity and application – whether application is unreasonably discriminatory; follow-up on Lockhat. Criminal law – necessity (noodtoestand) as defence to statutory offences – scope and limits where housing/economic need asserted. Burden of proof – absent statutory imposition, accused need not prove necessity on balance of probabilities; State must discharge proof beyond reasonable doubt.
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11 September 1980 |
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Trial judge’s misdirections on intoxication and unweighed confession parts warranted replacing death sentences with 12-year terms.
Criminal law – Murder – Two-stage inquiry into guilt and extenuation – Pleading an alibi does not preclude raising intoxication or other mitigation after conviction; confessions must be analysed in full and exculpatory parts weighed – Youth and intoxication may constitute cumulative extenuating circumstances – Death sentence inappropriate where extenuation found and prior record not grievous
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11 September 1980 |
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Appellate court set aside death sentence for high treason as excessive and imposed 20 years' imprisonment.
* Criminal law – High treason and terrorism – conviction based on accomplice evidence corroborated by independent facts; Sentencing – discretionary death penalty – factors rendering death sentence excessive: youth, first offender, limited/remote role, comparative sentences in terrorism cases; Evidence – acceptance and corroboration of accomplice testimony; Public order/terrorism context – seriousness of violent attacks weighed against individualized mitigation
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11 September 1980 |
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A legal adviser may vicariously tender pleas for juvenile accused; convictions based on unreliable s112 admissions set aside.
Criminal procedure – right to legal representation (s73(2)) – vicarious tendering of plea by duly instructed legal adviser for juvenile accused; Pleas and procedure – incorrect recording of pleas and wrongful use of s112 questioning; Admissions – reliance on s112 admissions improperly obtained; Evidence – contradictory co-accused testimony insufficient to sustain conviction
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11 September 1980 |
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Procedural defects in granting leave to appeal noted, but identification evidence and sentences upheld; appeal dismissed.
Criminal law – leave to appeal – recorded reasons and incorporation of grounds into record; Identification evidence – visual observation and identification parade; credibility – inconsistencies not necessarily indicate collusion; alibi evaluation; sentencing – absence of mitigating circumstances and confirmation of death sentence
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4 September 1980 |
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Application for condonation of lengthy delays in appeal and record‑lodging refused; applicants ordered to pay costs including two counsel.
Condonation — late noting of appeal and late lodging of record — flagrant breaches of Rules 5(1) and 5(4) — inadequate explanation — prospects of success not decisive — attorney negligence not necessarily exculpatory — costs including two counsel ordered.
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3 September 1980 |
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Leave to appeal should be granted only where there is a reasonable prospect of success; here evidence overwhelmingly supported conviction, so appeal dismissed.
* Criminal law – Appeal – Leave to appeal – Test is whether applicant has a reasonable prospect of success, not mere arguability or severity of sentence. Criminal law – Identification evidence – Positive daylight identifications and corroborative admissions and physical evidence may justify conviction. Criminal law – Murder – Intention inferred from circumstances and admissions; absence of extenuating circumstances
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3 September 1980 |
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Selection patent to hydroxy‑substituted penicillins upheld: not shown to be obvious or without utility.
Patent law — construction of specification and promissory clause — utility ("useful") means effective to produce promised result — limits on using post‑priority test data to disprove inventive step — inventive step upheld for selection of hydroxy‑substituted alpha‑aminobenzyl penicillins — selection patent conditions satisfied.
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2 September 1980 |
