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Citation
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Judgment date
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| March 1983 |
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Global compensation for servitude assessed by willing-buyer/willing-seller test; appellate court defers to trial judge's in loco valuation.
Expropriation — compensation under s 8(1)(b) — global assessment of actual financial loss and inconvenience — s 8(4)(e) excludes indirect loss — willing-buyer/willing-seller test — in loco inspection entitled to deference — valuation of loss of acreage, farming inconvenience and aesthetic depreciation.
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30 March 1983 |
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Servitude compensation is measured by diminution in market value; indirect profit loss excluded; award revised to R11,000 and costs split 50%.
Expropriation/servitude — taking of a real right under power-line servitude — compensation measured under provision for rights (s 8(1)(b)) — indirect loss/loss of profits excluded (s 8(4)(e)) — proper measure is diminution in market value (compare value without and with servitude) — capitalised projected-yield method rejected as inappropriate — costs: court may moderate costs where owner failed statutory pre-litigation requirements and pursued excessive claim.
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30 March 1983 |
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Appellate court refuses to disturb magistrate's sentencing discretion in theft case and refuses leave to appeal.
Criminal law – sentencing – appeal against sentence – appellate restraint where trial court properly and carefully exercised sentencing discretion; differentiation of culpability among co-accused justified by facts; leave to appeal refused for lack of reasonable prospects. |
30 March 1983 |
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Respondent failed to prove the alleged electricity‑supply agreement; appeal upheld and defendant absolved from the instance.
Contract and evidence – burden of proof – party asserting a contract as basis of claim bears onus of proving it; failure to prove pleaded contracts; tacit agreement not established by mere connection of supply and subsequent payment; costs — limited award for preparation of post‑trial schedule of exhibits. |
30 March 1983 |
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Pleadings must expressly state material facts; irrelevant averments properly struck out and trial judges should give reasons for interlocutory orders.
Civil procedure – pleadings – Rule 22(2): material facts must be expressly pleaded; no reliance on implication. Civil procedure – striking out under Rule 23(2): court may strike irrelevant averments if their retention would prejudice conduct of claim or defence. Interlocutory procedure – judges should give reasons for contested orders and for grants of leave to appeal. |
29 March 1983 |
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Plaintiffs failed to prove runway subsidence and municipality negligence; trial court’s credibility findings upheld and appeal dismissed.
Aviation/negligence – aircraft accident causation – onus of proof on plaintiff to establish runway subsidence caused crash; credibility assessment and trial judge’s findings of fact entitled to deference on appeal; where rival factual explanations are mutually destructive plaintiff must show defendant’s version false or probabilities favour plaintiff.
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29 March 1983 |
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Whether a surviving fiduciary under a joint will had power to alienate specially bequeathed farms during her lifetime.
Succession — joint will — fideicommissum residui — interpretation of "die dan te vindeboedel" — whether surviving spouse had lifetime power to alienate specially bequeathed immovable property — effect of special bequests and bemakingsprys on scope of fiduciary powers. |
29 March 1983 |
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A properly ratified modification of class rights was not unfairly prejudicial where immediate dividend benefits outweighed speculative winding‑up rights.
Companies — modification of class rights — ratification by requisite majorities — allegation of unfairly prejudicial conduct under s 252 — entitlement to relief assessed by effect on value of rights, likelihood of winding‑up, and market reaction. Share valuation — speculative winding‑up rights vs immediate dividend benefits — market price as evidence of value. Remedy — purchase at net asset value inappropriate where variation lawful and benefits realized by market.
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29 March 1983 |
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An estate agent who introduced the purchaser and initiated negotiations was the effective cause of the sale and entitled to commission.
Agency (estate agents) – entitlement to commission – requirement that the agent be the effective cause of the sale.* Agency – implied terms of mandate: find purchaser, sale between purchaser and seller, effective causation.* Evidence – evaluation of credibility on appeal – appellate court will generally uphold trial judge’s impression of witnesses.* Causation – introduction of buyer and initiation of negotiations ordinarily suffices absent independent intervening cause.
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29 March 1983 |
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Whether the appellant proved the police officer's fatal shooting was lawful; court found the defence unproven.
Police use of force – alleged unlawful shooting – burden on State/appellant to prove lawful conduct (Mabaso v Felix) – assessment of witness credibility – medical evidence on wound trajectory – first shot possibly justified, second fatal shot not shown to be necessary. |
29 March 1983 |
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Declaration of beneficial ownership upheld; appellate court affirms credibility findings and rejects Group Areas Act illegality defence.
Company law – beneficial ownership of shares held in nominee name – proprietary declaration to remedy alleged fraud; Appeal – deference to trial judge on credibility and inferences; Illegality – alleged contravention of Group Areas Act does not bar a declaration of beneficial ownership where plaintiff seeks to vindicate proprietary rights, not to enforce illegal contracts; Costs – appeal dismissed with costs, including two counsel.
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29 March 1983 |
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Murder conviction reduced to culpable homicide where reasonable possibility existed that the shot was accidental during a struggle.
Criminal law – murder v. culpable homicide – proof of intent to kill; accused's false testimony and the Mlambo dictum; accidental discharge during struggle; evaluation of probabilities and circumstantial evidence; sentence variation on appeal. |
29 March 1983 |
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A prosecutor’s sentencing stance does not bind the court; judge may find lack of remorse and leadership in fraud, upholding sentence.
Criminal law – Sentencing – Prosecutor’s in-court stance does not bind trial judge; judge may form independent evaluative findings on mitigation, remorse and comparative sentences; leadership in fraud and lack of remorse legitimate aggravating factors; sentence not vitiated where proper weighing of factors shown. |
29 March 1983 |
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Agent breached implied duty by delivering blank bills to third party, causing principal’s loss; appeal dismissed.
Agency — Mandate — Implied duty to act with reasonable care to protect principal from dishonest appropriation of negotiable instrument proceeds; Negligence — standard for experienced agent dealing with negotiable instruments and risky intermediaries; Causation — handing blank bills to third party as breach causing principal's loss; Pleadings — assumption of risk/contributory negligence not established where not pleaded.
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28 March 1983 |
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Driver's encroachment onto respondent's driveway caused injury; appeal dismissed with costs.
Motor-vehicle collision; credibility of witnesses; encroachment onto driveway/sidewalk; causal negligence; fleeing driver; appellant’s concession of collision; appeal dismissed with costs.
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28 March 1983 |
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Section 50(1) imposes liability on undertakers for electrical damage; "or otherwise" is given a wide meaning.
Electricity Act s50 — "or otherwise" given wide meaning, not confined by ejusdem generis; s50(1) imposes liability independent of plaintiff proving negligence; s50(2) qualifies that liability by specifying defences; statutory purpose—protecting public from dangers of undertakers' electrical operations. |
28 March 1983 |
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Whether convictions and severe sentences for three accused in a brutal group attack were justified and whether the death sentence merits appeal.
Criminal law – murder – group assault with pangas and stabbing – common purpose and dolus eventualis. Evidence – evaluation of conflicting eye‑witness testimony, medical evidence on causation of death and credibility. Sentence – consideration of mitigation (provocation, alcohol) versus community protection and deterrence; death penalty review. Appeal – test for leave to appeal against conviction and sentence; whether trial court misdirected on inherent wickedness.
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25 March 1983 |
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Whether a verbal acceptance of a subcontractor’s tender, coupled with reliance, creates a binding contract and damages entitlement.
• Contract law – formation – acceptance – whether a verbal acceptance of a subcontractor’s tender, supported by conduct and reliance, creates a binding contract. • Evidence – credibility and probabilities – appellate review of trial judge’s factual findings. • Damages – repudiation – reliance losses; statutory interest on monetary judgment under Prescribed Rate of Interest Act 55 of 1975. |
24 March 1983 |
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Whether proceeds from sale of shares were capital or taxable income determined by intention and circumstances; appeal upheld.
Income tax — characterization of gain on sale of shares — capital receipt v. revenue — intention at acquisition and sale — weight of taxpayer's testimony — burden under s.82 Income Tax Act. |
24 March 1983 |
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A trial court's faulty reliance on demeanour and rejection of a witness did not overturn a murder conviction where self-defence was disproved.
Criminal law – murder – self-defence – assessment of credibility – weight to be given to a witness's demeanour; appellate review of trial court's credibility findings; corroboration of eyewitness and medical evidence; misdirection by rejecting witness evidence wholesale. |
24 March 1983 |
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Acquisitive prescription established; owner’s mere unawareness without other legal protection does not defeat prescription.
Prescription — acquisitive prescription under Proclamation 13 of 1943 — possessio civilis (nee vi, nee clam, nee precario) — role of owner negligence as explanatory but not independently dispositive — condonation of late power of attorney — costs. |
24 March 1983 |
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Insufficient evidence of respondent's negligence; appeal dismissed and costs awarded.
* Evidence – credibility and factual finding – witness testimony excluding alternative concealed-vehicle scenario. Negligence – standard of observation and foreseeability required to establish driver negligence. Appeal – challenge to trial court's factual conclusions – appeal dismissed where no proof of negligence. |
24 March 1983 |
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Appeal dismissed: respondent not contributorily negligent; awards for custom orthopaedic shoes and general damages upheld.
Motor-vehicle collision – liability – insured driver grossly negligent entering main road with unlit 17m trailer – insurer liable under compulsory insurance; Contributory negligence – motorist not negligent where dazzling lights, poor street lighting and short distance made hazard unforeseeable and unavoidable; Damages – custom orthopaedic shoes upheld on preferred medical evidence; appellate court will not disturb reasonable trial assessment of general damages. |
24 March 1983 |
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The applicant's signage complied with regulations; the respondent's failure to stop caused the accident, relieving the applicant of liability.
Road traffic — Road signage — Map-type four-legged intersection (G40) sign and derestriction sign — Visibility and priority of stop sign; Administrative compliance with road regulations; Causation of accident. Negligence — Failure to stop at stop line — Driver’s duty to obey regulatory signs and ensure safe passage. Post-accident remedial measures not proof of prior negligence. |
21 March 1983 |
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Court upheld trial finding that the respondent’s driver was negligent; hirer entitled to recover vehicle damage; appeal dismissed with costs.
Motor collision — tyre/track mark analysis; expert evidence on tyre marks and vehicle positions; negligence and contributory negligence; hirer’s right to sue for damage/diminution to hired vehicles; evidentiary weight of police marks and photographs.
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18 March 1983 |
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Whether a contractual variation clause requiring written engineer orders covers naturally occurring quantity increases.
Construction contract – Variations – Clause empowering engineer to vary quantities by written order – 20% proviso applies to engineer-ordered variations only – Provisional or naturally occurring increases in quantities are not variations under clause 3(iii) – Requirement of written order (cl.3(iv)).
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17 March 1983 |
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Whether an intermediary contracted as the manufacturer’s agent or as principal determined privity and defeated the applicants’ counter‑claim.
Contract — privity — whether intermediary acted as authorised agent of manufacturer or as principal seller; contractual construction of exploitation and general‑agency arrangements; del credere obligations do not, by themselves, establish agency; commercial practice and contractual wording determine privity and liability.
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17 March 1983 |
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Where no fixed performance date exists, rescission requires proof of proper demand and a reasonable time; those seeking rescission bear that onus.
Contract – lease – ancillary building obligation with no fixed completion date – requirement of demand fixing reasonable time for performance – burden on party claiming rescission to prove proper notice and reasonableness of time – insufficient evidence of progress or of reasonable 26‑day period – cancellation invalid.
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11 March 1983 |
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Equivocal lay evidence of intoxication required medical proof; conviction for drunk driving set aside for lack of proof and procedural unfairness.
Criminal law – Driving under the influence – Sufficiency of evidence – Lay opinion on intoxication may be inadequate where physical signs are equivocal; medical evidence may be required. Evidence – Opinion evidence – Lay witnesses must state facts observed that support their opinion. Procedure – Trial fairness – Court should not shut down relevant explanation by accused; improper curtailment and misdirection can vitiate conviction.
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10 March 1983 |
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Section 32(1) Police Act’s six‑month bar (and notice) applies to minors; Prescription Act cannot extend it.
Police Act s 32(1) — six‑month limitation and one‑month notice for civil actions — applies to minors; Prescription Act (chapter III) cannot extend or suspend s 32(1); statutory limitation construed as absolute bar to late claims against State/police.
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10 March 1983 |
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Second accused convicted of murder; first accused convicted of attempted murder where victim likely already dead; leave to appeal refused.
Criminal law – homicide – murder where primary stab wounds inflicted to back and lungs – conviction and sentence; Criminal law – attempted murder where victim possibly dead – applicability of Rex v Davis versus Palmos/Horton; Evidence – assessment of conflicting eyewitness testimony and post‑mortem findings; Leave to appeal refused.
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5 March 1983 |
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Whether a mortgage bond securing present and future advances can be a liquid document for provisional sentence.
Provisional sentence — liquidity of documents — mortgage bond covering existing and future advances — whether bond contains unconditional acknowledgment of fixed sum — extrinsic certificate cannot confer liquidity — renunciation of exception non numeratae pecuniae shifts burden to defendant.
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4 March 1983 |
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Appeal against finding of no extenuating circumstances dismissed; deliberate fatal stabbing, youth and alleged intoxication held not mitigating.
Criminal law – murder – extenuating circumstances – alleged mitigation: youth, lack of premeditation, intoxication, gang membership – onus on accused to prove mitigation – deliberate stabbing with knife severing artery, no proof of impairment or coercion; cumulative factors insufficient to reduce moral blameworthiness.
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3 March 1983 |
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Appellant's murder conviction affirmed on strong circumstantial evidence; no extenuating circumstances found.
Criminal law – murder – circumstantial evidence; alibi disproved by inconsistent accounts; extra-judicial confession and threats as corroborative evidence; assessment of witness credibility; revenge/anger not necessarily extenuating. |
3 March 1983 |
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1 March 1983 |
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Whether non‑stabbing co‑accused can be convicted of murder under common‑purpose principles.
* Criminal law – Common purpose – liability for murder where one participant fatally stabs victim and others participate in prearranged robbery – foreseeability of weapon use. Criminal procedure – Identification evidence – value of witness clothing descriptions and identification parade. Sentencing – Appeal against excessive sentence for robbery – discretionary reduction from 12 to 6 years. |
1 March 1983 |
