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Citation
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Judgment date
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| December 1981 |
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Unexplained recent possession of stolen goods permits inference of theft and housebreaking; conviction and three-year sentence upheld.
* Criminal law – recent possession of stolen property – unexplained possession may give rise to inference of theft and housebreaking; part-possession can justify conviction for all goods stolen in same incident. Credibility findings – conflicting explanations justify adverse credibility inference. Sentence – heavy but no misdirection; appellate interference not warranted. |
15 December 1981 |
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Excessive violence during a robbery can establish a separate intent to kill, supporting attempted murder conviction.
Criminal law – joint enterprise/association in violent robbery – credibility of eyewitness and alibi; excessive violence in course of robbery may establish separate intent to kill (S v Moloto) – attempted murder where death not proved – sentencing discretion and deterrence. |
3 December 1981 |
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Appellant failed to prove respondent authorised delivery; trial court credibility findings upheld and appeal dismissed.
* Agency/Authority – proof of authorisation to charge goods to another’s account – necessity of proving oral telephone authorisation; Evidence – assessment of credibility of competing oral testimony; probabilities and documentary conduct cannot displace credible contrary testimony; Appeal – appellate court will not disturb trial court’s credibility findings absent clear error. |
1 December 1981 |
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Appellate court upholds trial credibility findings and dismisses appeal, owner liable for servant’s negligence in horse-road collision.
Delict — Negligence — Collision with animal on highway — Assessment of credibility and demeanour of witnesses — Vicarious liability for servant’s negligence — Appellate restraint in overturning trial court’s factual findings; corroboration by physical evidence (road stains).
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1 December 1981 |
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Whether a bus driver was causally negligent for not hooting or avoiding a pedestrian stepping from a traffic island.
Road-traffic — Causation — Whether bus driver negligent in failing to keep proper lookout, hoot or take evasive action when pedestrian stepped from traffic island; foreseeability and adequacy of time/distance to avoid collision; burden on drivers in busy thoroughfares. |
1 December 1981 |
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Whether the bus driver negligently failed to warn or avoid a pedestrian stepping from a traffic island.
Delict — Causal negligence — Pedestrian stepping from traffic island into path of bus — Duty to keep proper lookout; duty to warn (hoot) or take avoiding action — Foreseeability of pedestrian’s conduct; effectiveness of hooting/avoidance — Inferences from non‑testimony of driver. |
1 December 1981 |
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Appeal dismissed: commissioner applied balance-of-probabilities test and appellant failed to prove employment caused the disease.
Workmen's Compensation Act — causation for occupational disease — proof on balance of probabilities and legitimate inference — scope of appeal under s.25(7) limited to questions of law — commissioner’s factual finding concerning causation not reviewable where correct legal standard applied. |
1 December 1981 |
| November 1981 |
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External paved storage aprons not physically integrated with factory are not "improvements" under s.13(9) for building allowances.
Tax law – s.13 Income Tax Act – "improvements" to a building – statutory definition requires physical attachment/integration (extension/addition effected to the building) and a functional purpose of increasing industrial capacity – external paved storage aprons not physically integrated, hence not "improvements" for building allowances.
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30 November 1981 |
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Appellant convicted as intermediary in 11.98 kg dagga transaction; conviction upheld, sentence reduced to two years suspended.
* Criminal law – Drugs (dagga) – Dealing under s 2(a) – intermediary/transporteur – statutory presumptions s 10(1) – failure to rebut – conviction upheld. Sentencing – appellate interference – manifestly excessive sentence reduced and substituted by suspended term. Forfeiture under s 8(1)(b) noted at trial. |
30 November 1981 |
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Court reversed refusal to confirm custody settlement, prioritising minor’s welfare over non‑mala fide breach of prior order.
Family law – custody – confirmation of consent settlement – court’s duty as guardian to inquire whether settlement is in minor’s best interests; disobedience of prior court order not automatically fatal; assessment of undue influence and legal advice; costs allocation.
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30 November 1981 |
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Court must confirm parental settlement only after independent welfare inquiry; lack of proof of undue influence justified transferring custody to father.
Family law – custody and variation of court order – Court’s duty as parens patriae when asked to confirm parental settlement – refusal to confirm settlement requires evidence of impropriety or contrary welfare – deliberate disobedience of custody order not automatically fatal to subsequent custody claim – welfare of child paramount.
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30 November 1981 |
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Whether materially altered township plans constituted repudiation permitting rescission and recovery of instalments.
Property law – Suspensive instalment sale of erven subject to township proclamation – Possession given pending proclamation; transfer impossible before proclamation – Contract construction vs factual implication of time for proclamation – Repudiation/anticipatory breach – Objective test: whether defendant’s conduct would lead a reasonable purchaser to conclude non‑performance – Subsequent township plans omitting purchased erven may amount to repudiation.
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30 November 1981 |
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Substitutionary clause applies at any time; marriage in community is not "disposing" and Alexander succeeds on intestacy.
Succession — construction of will — substitution clause with disjunctive conditions — whether applies only during life‑tenant's lifetime or at any time — compendious substitution (direct and fideicommissary) recognized; Fideicommissum — when a bequest is burdened and effect on matrimonial community; Marriage in community of property — whether it constitutes "disposing" of fideicommissary interest — held not to be a disposition within substitution clause; Intestacy — effect where fiduciary dies without disposing of interest.
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30 November 1981 |
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30 November 1981 |
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Whether a restrictive condition limiting land to a "woongebou" excludes hotels serving liquor — court held it does not.
Deed restrictions — interpretation of restrictive title conditions — meaning of "woongebou" and "hotel" — whether licensed liquor service precludes characterization as residential building — restrictive conditions construed strictly and least onerous for owner (Pieters v Du Plessis). |
30 November 1981 |
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Whether "woongebou" in a restrictive deed includes hotels serving liquor — court holds it does and dismisses the appeal.
Property — restrictive title conditions — interpretation of "woongebou" — whether "hotels" includes liquor‑serving establishments — ordinary meaning of "hotel"; Construction of restrictive covenants — ambiguities resolved so as to impose least burdensome interpretation on owner (Pieters v Du Plessis); Licensing/liquor — serving of liquor does not necessarily change character of building as residential for purposes of restrictive deed.
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30 November 1981 |
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A minor’s civil capacity must be assessed subjectively; a seven‑year‑old was not culpae capax, so damages were not reduced.
Delict — Minors — Toerekeningsvatbaarheid (culpae capax) — capacity of impubes to be determined by subjective inquiry into age, maturity, intellect and impulse control; negligence (culpa) assessed by objective diligens paterfamilias standard — contributory negligence and apportionment when child found not culpae capax.
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30 November 1981 |
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Convictions set aside where identification was not properly tested and trial judge relied on unsupported inferential reasoning.
Criminal law – Conviction based on identification – duty to test identification evidence; requisite enquiries (features, distance, lighting, obstructions, vehicle description). Appellate review – Missteps by trial magistrate: unsupported inferential reasoning and failure to provide reasons for credibility findings. Probative value of post‑incident offer to compensate – not necessarily indicative of guilt. Failure to testify – limited weight where accused young, inexperienced and unrepresented.
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27 November 1981 |
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Appellate court upheld 50/50 negligence apportionment and damages assessment in pedestrian–motorcycle collision.
Negligence – apportionment between pedestrian and motorcyclist – 50/50 split; Personal injury – distinction between organic brain damage and psychiatric sequelae; Assessment of damages – appropriate contingency allowance and calculation of loss of earnings; Appellate review – deference to trial judge’s factual findings and damages assessment.
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27 November 1981 |
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Appellate court found the applicant's three-year sentence for attempted rape excessive and substituted a lighter sentence.
* Criminal law – Attempted rape – Conviction based on complainant’s evidence corroborated by spouse; accused’s denial rejected. Sentencing – Appellate interference permitted only for 'striking disparity' between imposed and appropriate sentence. Sentencing considerations – No serious injury or proven premeditation; first offender; youth; family responsibilities; gravity mitigated to some extent. Result – Original three-year term reduced to two years, one year suspended for five years on conditions. |
27 November 1981 |
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Appeal allowed: passenger proved employer-arranged transport in course of employment; insurer liable and damages awarded.
Motor-vehicle insurance — liability under Motor Vehicle Insurance Act — passenger conveyed 'in the course of employment'. Employment law — when employer-provided transport forms part of service contract. Evidence — employer's signed accident report as inconsistent admission; credibility of witnesses. Negligence — driver failed to avoid pothole and lost control causing overturning.
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27 November 1981 |
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Attorney’s illness alone did not establish 'special circumstances' excusing late statutory service under section 24(2)(a)(i).
Motor-vehicle third-party claims – s24(2)(a)(i) – 'special circumstances' – burden to prove on balance of probabilities – reasonableness test – attorney illness does not automatically suffice if no reasonable alternative arrangements were made to meet statutory time limits. Civil procedure – review of s24 applications – requirement that explanation be sufficiently complete to enable court to assess reasonableness. Duty of attorney – where incapacitated, to arrange for diary checking/alternative handling of urgent matters to avoid prejudice to clients.
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27 November 1981 |
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Lost time in exploiting a patent can justify an extension, but the extension period must reflect proven non-fault and actual delay.
Patents — extension under s 39(1)(a) — inadequate remuneration — lost time in exploitation — onus on applicant to prove inadequacy and absence of fault — discretion as to period of extension — exceptional cases and limits on extension; assessment of actual v potential remuneration; indemnity conditions not automatic.
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27 November 1981 |
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Convictions based on the applicant’s statements and police identifications require independent proof linking the confession to the charged offences.
* Criminal procedure – s 209 C.P.C. – conviction on accused’s confession – requirement that confession be materially confirmed or that other evidence prove the same offence beyond reasonable doubt. Admissibility vs sufficiency – magistrate’s statement admissible but insufficient without proper corroboration linking confession to charged offence. Evidence – use of investigating officer and police interpreter to confirm identifications/out‑of‑court statements – caution required; potential unreliability where they participated in investigation. Credibility – appellate intervention warranted where trial court uncritically accepts testimony despite material contradictions. |
27 November 1981 |
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Delivery of a cheque to a third party under an agreed arrangement transferred title, so the bank was not liable to the applicant.
Bills of Exchange Act – s 81(1) – liability of bank for payment of crossed/"not negotiable" cheque; transfer of title by delivery to third party; effect of non-endorsement; s 29(4) – transferee obtains transferor’s title; requirement to prove loss for recovery under s 81(1). |
26 November 1981 |
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Ernstige dronkenskap en provokasie skort nie opzet vir moord nie; appèl van beklaagde word afgewys.
Strafreg – moord – dronkenskap en geheueverlies – of dronkenskap opset uitskakel – betekenis van dadersoptrede en erkennings ná die daad; geloofwaardigheidsbeoordeling van getuie en mediese bewyse (bloedalkohol). |
26 November 1981 |
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Appellate court substituted a fine for an excessive custodial sentence, emphasizing appellant’s circumstances and lack of evidence for psychological causes.
Criminal law – sentence – shoplifting and fraud in self-service stores – custodial sentence potentially excessive where individual circumstances warrant leniency; appellate interference justified where sentencing disparity is striking; speculative psychological causes (kleptomania) not considered without evidence; offences committed contemporaneously may be taken together for sentencing. |
26 November 1981 |
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Appellate court substituted a combined fine for excessive custodial sentences for shoplifting and fraud.
Criminal law – sentencing – shoplifting and fraud – magistrate's emphasis on deterrence and local prevalence – appellate intervention where sentence is startlingly inappropriate – no evidence of kleptomania to mitigate sentence – substitution of combined fine for custodial sentence. |
26 November 1981 |
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Violent, life‑endangering robbery conduct justified murder convictions despite uncertain precise cause of death.
Criminal law – Murder – Inherently dangerous conduct during robbery resulting in death – precise cause of death immaterial where attack shows awareness of risk (dolus eventualis); insufficient proof to attribute rape to a particular accused. |
26 November 1981 |
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Whether a policeman's horseplay with a service shotgun amounted to abandonment of employment, negating vicarious liability.
• Vicarious liability – course and scope of employment – deviation/frolic – whether officer’s detour and subsequent horseplay amounted to abandonment of employment.• Credibility findings – appellate restraint in overturning trial judge’s factual findings.• Negligent discharge of service firearm – employer liability where employee remained on duty and within control of superior.• Reliance on Feldman v Mall tests and Minister of Justice v Khoza.
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26 November 1981 |
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A police employer held vicariously liable for a constable’s negligent shooting during a short on-duty deviation; appeal dismissed.
Vicarious liability; course and scope of employment; deviation versus frolic; credibility findings; police on-duty conduct; negligent discharge of firearm; employer liability for employee’s on-duty negligence.
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26 November 1981 |
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Excessive judicial questioning prejudiced the appellant, and the State failed to disprove his plea of self-defence.
* Criminal procedure – Judicial questioning – Limits on judge's examination of witnesses and accused – Avoiding descent into the arena, preserving impartiality and appearance of justice. Criminal procedure – Irregularity and prejudice – Excessive judicial intervention may constitute irregularity requiring appellate intervention. Evidence – Reassessment of credibility – Appellate court may disregard trial court's credibility findings when trial irregularity prejudiced accused and determine guilt afresh. Criminal law – Self-defence – State must negat e plea beyond reasonable doubt; probabilities and medical evidence may support accused's reasonable belief of imminent danger. |
26 November 1981 |
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Appeals dismissed: applicants convicted of murder and aggravated robbery; dolus eventualis established.
* Criminal law – murder and robbery with aggravating circumstances – assessment of witness credibility, single eyewitness and injured co-victim corroboration. Dolus eventualis – participation in a robbery where co-perpetrator was armed and likely to use a lethal weapon; foresight and reckless indifference established. Admissibility/weight of extra-trial statements and allegations of police coercion – found unproven. Alibi – false alibi undermines accused's defence. |
26 November 1981 |
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Participation in an armed robbery while armed can establish dolus eventualis, supporting a murder conviction for both participants.
Criminal law – identification and credibility of single eyewitness; alibi falsity; admissibility and reliability of extra‑curial statements; joint enterprise and dolus eventualis where participant is armed and shares in the robbery; assessment of police coercion allegations. |
26 November 1981 |
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Appellants' convictions and death sentences for murder and aggravated robbery upheld; post-trial recantation rejected and sentences must be separated.
Criminal law – murder and robbery with aggravating circumstances – sufficiency of evidence (confessions, scene identifications, post-offence conduct) – post-conviction recantation affidavits not ordinarily 'further evidence' (Van Heerden principle) – improper grouping of distinct convictions for sentencing – capital sentences upheld. |
26 November 1981 |
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Appeal dismissed: eyewitness identification upheld, alibi rejected, hearsay imperfect but conviction and nine‑month sentence confirmed.
Criminal law – Extortion – Identification evidence – reliability of eyewitness identification and subsequent out‑of‑court identification parades; Alibi – burden and evaluation of alibi against totality of evidence; Evidence – inadmissible hearsay concerning vehicle registration and appellate re‑assessment of admissible evidence; Sentence – appropriateness and confirmation on appeal.
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26 November 1981 |
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Insufficient and unconnected evidence, and the accused's silence, cannot support convictions for negligent driving or culpable homicide.
Criminal law – burden of proof – insufficiency of circumstantial and vague eyewitness evidence to establish negligent driving or causation for culpable homicide. Criminal procedure – accused's silence/absence of plea explanation – cannot fill gaps in the State's case. Evidence – identification – requirement for proper in-court identification or proof linking accused to vehicle and to victim. Forensic evidence – post-mortem report must be properly proved and linked to charged facts to establish causation.
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24 November 1981 |
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Documents and the purchaser’s silence confirmed a binding oral sale of shares for R55,000; appeal dismissed with costs.
Evidence — Oral contract — proof by contemporaneous notes and lawyer's letter with attached Memorandum; omission from aide-mémoire not dispositive of non-formation. Conduct — silence after receipt of written confirmation may permit adverse inference of acceptance. Contracts — oral agreement to sell shares enforceable where terms proved by documents and conduct.
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24 November 1981 |
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Appeal dismissed: convictions upheld on reliable single eyewitness evidence despite some inconsistencies.
Criminal law – murder conviction upheld on single eyewitness evidence – credibility assessment – inconsistencies and body location explained by possible removal of body – absence of strong motive not determinative. |
24 November 1981 |
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Appellate court upheld convictions where trial court reasonably found single eyewitness credible despite discrepancies.
Criminal law – Evidence – Single eyewitness evidence – reliability and credibility – appellate review of trial court’s acceptance of eyewitness testimony; Criminal law – Murder – whether discrepancies and lack of strong motive undermine eyewitness evidence; Appellate procedure – interference with credibility findings only where misdirection or irrationality shown.
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24 November 1981 |
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Whether a magistrate-recorded confession and a police pointing-out were voluntary and admissible, and whether conviction stands.
Criminal procedure — admissibility of confessions — section 217(1)(b)(i) presumption as to statements to magistrate — onus on accused to rebut; voluntariness of statements to police — State must prove voluntariness where no statutory presumption; assessment of credibility and weight of confession and pointing-out; use of custody records to corroborate voluntariness. |
24 November 1981 |
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Appeal against conviction and sentence for brutal assault dismissed; youthful-offender sentencing and probation report not warranted.
Criminal law – Assault with intent to do grievous bodily harm – sustained, brutal assault involving pretence to be police, serious injuries. Sentencing – Youthful offender provisions (s 294 CPA) – inapplicability where offender led adult, independent life and offence is grave. Sentencing procedure – no obligation to obtain probation report where accused had representation and no mitigating evidence placed before court. Appellate review – sentence not startlingly inappropriate; appeal dismissed.
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24 November 1981 |
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Appellant's sentence for brutal assault upheld; juvenile s294 sentencing inapplicable and remittal unnecessary.
Criminal law – sentencing – juvenile sentencing under s294 of the Criminal Procedure Act – applicability where offender led independent adult life; Assault with intent to do grievous bodily harm – severity of injuries and community interest as aggravating factors; Appeal – request for probation report and remittal – unnecessary where no reasonable prospect of material mitigating facts; Sentence not startlingly inappropriate.
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24 November 1981 |
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Appellate court reduced rape sentence from ten to seven years due to intoxication, spontaneity, limited violence and minor injury.
* Criminal law — Sentencing — Appeal against severity — Appellate interference limited to irregularity, misdirection or striking disparity between imposed and appropriate sentence. Sentencing — Rape — Factors: premeditation, degree of violence, physical injury, voluntary intoxication, and victim’s recovery relevant to mitigation. Voluntary intoxication: may diminish self‑control but does not necessarily negate criminal responsibility; can be a mitigating factor in sentencing. |
23 November 1981 |
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Appellate court upheld convictions and death sentence after rejecting appellant's alibi and accepting eyewitness identification.
Criminal law – murder and attempted murder – evaluation of eyewitness credibility – possession of firearm and ammunition – proof of guilt on direct evidence – sentencing – absence of extenuating circumstances; death sentence affirmed.
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20 November 1981 |
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Appeal dismissed: identification evidence upheld; convictions for murder, attempted murder and firearms offences affirmed; death sentence confirmed.
Criminal law – Murder and attempted murder – Identification evidence and credibility – Firearms offences – Possession of firearm and ammunition – Appeal against convictions and capital sentence – No extenuating circumstances.
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20 November 1981 |
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Seven-year sentence for culpable homicide reduced to 18 months; appellate court found sentence excessive.
Criminal law – Culpable homicide – Sentencing – Assessment of gross negligence in handling an automatic firearm – Whether appellant knew of weapon’s readiness to fire or direction of barrel – Use of general incidence of accidental shootings to justify exemplary sentences – Appellate interference where sentence is shockingly harsh. |
19 November 1981 |
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Court reduced a seven-year sentence to 18 months, finding the appellant's negligence did not amount to gross recklessness.
* Criminal law – Culpable homicide – Sentence – Whether appellant's conduct constituted gross negligence or mere negligence when a Bren gun unexpectedly discharged. Sentencing – Exemplary punishment – Incidence of regional shootings cannot alone justify severe deterrent sentence; individual circumstances must be considered. Evidence – Awareness of risk – Knowledge that a partially cocked automatic weapon can fire without trigger depression is material to degree of negligence. |
19 November 1981 |
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Court ordered security for appeal costs despite legal aid due to asset transfers and poor prospects of success.
Security for costs of appeal – sub‑rule (6) Rule 6 – legal aid does not preclude court ordering security – impecuniosity caused by transfers to relatives – adverse credibility findings and prospects of success relevant – protection of successful party from unrecoverable costs.
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16 November 1981 |
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Negotiation of cheques by an insolvent company was a voidable disposition preferring the appellant, despite a prior cession to the bank.
Insolvency — voidable dispositions — s.29(1) Insolvency Act — negotiable instruments: negotiation of cheque constitutes disposition of property; prior cession in securitatem debiti does not prevent disposition or cure prejudice; insolvency to be determined on balance of probabilities; alleged bank consent must be proven; ordinary-course-of-business defence is objective.
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13 November 1981 |
