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Citation
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Judgment date
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| May 1983 |
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Whether the respondent’s minor son was contributorily negligent when struck by an overtaking vehicle.
Motor law – negligence – overtaking manoeuvre – driver’s duty to ensure safe overtaking and to use dipped headlights; Contributory negligence – pedestrian obligations – foreseeability and reasonable precautions; Standard of care: reasonably prudent person test as to foreseeability of harm.
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30 May 1983 |
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30 May 1983 |
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Remittal orders are appealable; remittal unjustified when the respondent deliberately fails to cure evidentiary defects.
Criminal procedure – appealability – order remitting criminal matter by a provincial division to magistrate for further evidence is a "decision" under s 21(1) and appealable; Remittal for further evidence – sparing exercise – permitted only where omitted evidence is formal/technical, omission is inadvertent, remedyable without delay and satisfactory explanation exists; Evidentiary formalities – defective affidavit failing to prove certification of measuring bar fatal to State’s case; Prosecutorial conduct – deliberate failure to re-open case precludes remittal. |
30 May 1983 |
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Board has jurisdiction to attach quotas after mill closure and must afford affected parties a hearing before deciding accommodation.
Administrative law – statutory agreement governing industry – Board’s jurisdiction to re-attach quotas on mill closure – accommodation decisions constitute alterations of allocations under clause 32(1)(b) – clause 32(6) requires opportunity to be heard – audi alteram partem applies; emergency circumstances do not automatically displace hearing requirement. |
30 May 1983 |
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Trial court’s rejection of accuseds’ versions and finding of no extenuating circumstances upheld; death sentences confirmed.
* Criminal law – Murder – Circumstantial and forensic evidence supporting strangulation by ligature – inference of direct intent to kill to prevent identification. Criminal law – Extenuating circumstances – appellate review limited; trial court’s value judgment respected unless misdirection or irrationality shown. Evidence – credibility findings where accuseds’ accounts rejected as fabricated. Sentencing – mandatory death sentence upheld where no extenuating circumstances proved. |
30 May 1983 |
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Whether dolus eventualis exists where death results from an apparently accidental discharge during a resisted armed robbery.
Criminal law – dolus eventualis – subjective foresight of possible death in armed robbery – whether foresight must extend to the specific causal chain – murder v. culpable homicide – joint enterprise and attribution of foresight.
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30 May 1983 |
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Appellate court upheld death sentences, finding sentencing discretion properly exercised in violent, premeditated home invasion of elderly victim.
Criminal law – Sentencing – Exercise of sentencing discretion – When appellate interference is warranted; Criminal law – Capital sentence – Whether death penalty disproportionate in violent, premeditated home invasion involving serious injury to a vulnerable elderly victim; Sentencing – Rehabilitation is a relevant but not determinative consideration.
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30 May 1983 |
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The applicants' appeals against findings of no mitigating circumstances in murder convictions were dismissed.
Criminal law – Murder – Mitigating circumstances – Assessment of moral blameworthiness of a socius/accomplice – Duress/compulsion as defence – Appellate review of trial court credibility findings.
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30 May 1983 |
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Appellant’s intoxication and sudden confrontation found extenuating; conviction amended and sentence reduced to eight years.
Criminal law – Murder – Extenuating circumstances – Absence of premeditation, limited intoxication and sudden confrontation may reduce moral blameworthiness – Sentence reduction.
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30 May 1983 |
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Appellant failed to prove mitigating provocation; trial court’s rejection of his mitigation account was upheld and appeal dismissed.
Criminal law – Murder – Multiple stab wounds including cardiac penetration – Assessment of whether mitigating circumstances (provocation/heat of passion) proven. Credibility – Trial court entitled to reject inconsistent testimony unsupported by physical evidence or corroboration. Burden of proof – Accused must establish facts amounting to mitigation; speculative assertions insufficient.
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30 May 1983 |
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Appellate court upheld death sentence for rape (appellant no.1), imposed separate robbery term, and dismissed appellant no.2's appeal.
Criminal law – rape and sodomy of elderly victim – medical evidence corroborating sexual assault and bodily injuries. Sentencing – discretion to impose death penalty for rape – standards for exercising discretion and concept of "extreme case". Sentencing practice – desirability of separate sentences where offences attract different maximum penalties. Mitigation – intoxication, youth and possible rehabilitability insufficient to disturb discretionary death sentence when aggravating features prevail.
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30 May 1983 |
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Employer owned original engineering drawings; copies used to produce three‑dimensional bins infringed that copyright.
Copyright — artistic works — technical/engineering drawings — originality requires skill, labour and judgment; employee‑made drawings — ownership vests in employer; "reproduction" includes conversion into three‑dimensional form; infringement requires objective similarity of a substantial part plus causal connection; amendment to pleadings allowed to rely on copies where copies were the causal link in defendant’s possession.
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30 May 1983 |
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A proclamation altering a restrictive title condition and amending the town‑planning scheme constitutes the Administrator's written approval permitting the new use.
Statutory powers – Removal of Restrictions Act 84 of 1967 – Proclamation altering restrictive title condition and amending town‑planning scheme – Construction of proclamation to give effect to its object. Town planning – Amendment of scheme annexed to proclamation constitutes written approval by Administrator releasing restrictive title condition. Interpretation – Ut res magis valeat quam pereat applied to avoid frustrating statutory proclamation.
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30 May 1983 |
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Failure to disclose prior inconsistent statements by State witnesses was an irregularity warranting setting aside convictions.
Criminal procedure – Prosecutorial duty of disclosure – Prior inconsistent statements of State witnesses – "Serious discrepancy" defined as one which could affect credibility on cross-examination – Failure to disclose such statements is an irregularity under s317 – Where omission causes inability to test key witnesses, conviction may be set aside – Remittal or retrial discretionary and sparingly ordered.
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30 May 1983 |
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The applicant was struck off for issuing a fraudulent guarantee letter and breaching professional duties.
* Advocates — professional misconduct — knowingly issuing false written assurance of holding client funds — fraudulently inducing reliance.* Breach of Professional Regulations (Rule 4.19.1) — practising while engaged in conflicting commercial activity.* Disciplinary sanctions — striking off v suspension — appellate review limited to misdirection, irregularity or unreasonableness. |
27 May 1983 |
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Owner held vicariously liable for herdsman’s negligent control of cattle causing collision; adverse inference for failing to call herdsman.
Delict – liability for animals on road – owner vicariously liable for herdsman’s negligence; Evidence – circumstantial proof and identification; adverse inference where owner fails to call available employee; duty to control animals and warn road users; credibility and conduct at scene relevant to ownership.
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27 May 1983 |
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Appeals dismissed: alleged witchcraft, intoxication and duress did not mitigate deliberate, planned murder.
Criminal law – Murder – Sentence appeal – Extenuating circumstances – Alleged witchcraft belief and intoxication – Duress – Test for intoxication: influence on moral blameworthiness; trial court findings of deliberate, planned killing upheld.
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27 May 1983 |
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Court refused condonation and leave to appeal in forma pauperis due to procedural negligence and faint prospects of success.
Civil procedure – condonation for late filing – A.D. Rules – A.D. Rule 5(4)bis(b) deeming appeal withdrawn if record not filed and Registrar not notified – discretion to condone guided by Melane factors – attorney’s gross negligence weighs against condonation; prospects of success must be substantial. Evidence – evaluation of credibility of eyewitness and police statement; appellate court will not lightly disturb trial judge’s factual findings.
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26 May 1983 |
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Appellate court upholds convictions for murder and multiple assaults; no extenuating circumstances found; appeal dismissed.
Criminal law – murder and multiple assaults – credibility of witnesses and circumstantial evidence where no eyewitness to killing – self-defence/mitigation not established – appeal dismissed.
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26 May 1983 |
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A statutory s81 claim prescribed in three years; a police statement by the respondent did not interrupt prescription.
Prescription — debt under s 81 Bills of Exchange Act is statutory, not arising from bill of exchange — three-year prescription period applies; Prescription Act s 14(1) — interruption requires express or tacit acknowledgement of legal liability to creditor or creditor's agent; statements to police not necessarily an acknowledgement nor communication to creditor/agent.
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25 May 1983 |
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Incorporation was not caught by s103, but the company’s interest‑free directors’ loans were taxable under s103.
Income Tax Act s 103 — application to transactions or schemes — normality/abnormality test — incorporation of professional partnership v. loans to director/shareholders; s 103(4)(a) presumption that postponement/avoidance is a main purpose and onus to rebut; s 79 power to re-open assessments — proviso (iii) and s 3(2) not a bar to re-opening where Commissioner applies s 103 to directors' loans; avoidance/postponement of tax can arise by advancing remuneration as unsecured interest-free loans. |
24 May 1983 |
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Police’ forceful arrest and its effect on the appellant’s state of mind amounted to mitigating circumstances, death penalty replaced by imprisonment.
Criminal law – Murder – Mitigating circumstances – Effect of police conduct and humiliation during arrest on accused’s state of mind – Cumulative impact including immediate struggle and alcohol – Appellate interference where trial court mistook facts – Substitution of sentence for death penalty.
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24 May 1983 |
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Intoxication, provocation and limited education did not constitute extenuating circumstances for a deliberate child killing.
Criminal law – Murder – Extenuating circumstances – Provocation and intoxication – Credibility findings – Limited education and milieu not necessarily extenuating; deliberate killing of a child establishes intention; appellate court will not interfere absent misdirection.
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24 May 1983 |
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Appellate court upheld rape convictions, finding the complainant credible despite peripheral inconsistencies and minor misdirection.
Criminal law — Rape — Appeal against conviction — Assessment of credibility and demeanour of complainant and accused; corroboration by police and route-identification evidence; medical evidence consistent but not decisive; alleged prior dagga use and expert evidence of complainant's sexual orientation considered but insufficient to vitiate verdict. |
19 May 1983 |
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19 May 1983 |
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The appellant’s intoxication and the deceased’s intervention did not constitute extenuating circumstances; appeal against death sentence dismissed.
Criminal law – Murder – Extenuating circumstances – Intoxication and victim's intervention considered but insufficient to reduce moral blameworthiness. Criminal procedure – Summary trial – Duty under s 145(2) to summon assessors where death sentence may be imposed; presiding judge's subjective view at outset important. Prosecution obligations – Need to give timely notice when case merits assessors due to potential imposition of death sentence.
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19 May 1983 |
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Death sentence for rape set aside as disproportionate; substituted by 15 years’ imprisonment.
Criminal law – Sentencing – Rape – Death sentence competent but reserved for extreme cases; appellate interference only where no reasonable court would have imposed death; relevant aggravating and mitigating factors include premeditation, severity and permanency of injury, offender’s personal circumstances and prospects of rehabilitation.
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19 May 1983 |
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An implied admission plus circumstantial evidence and failure to testify upheld a murder conviction; no extenuating circumstances found.
Criminal law – Murder – reliance on circumstantial evidence and admissions; credibility assessments of interested witnesses. Criminal law – Confession/admission – implied admission to third party as evidence of guilt. Evidence – evaluation of witness credibility and the proper caution where witness has motive to implicate accused. Criminal procedure – accused’s failure to testify and weight to be accorded to unexplained incriminating statements. Sentencing – extenuating circumstances – planned killing of an innocent person does not reduce moral blameworthiness.
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19 May 1983 |
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11 May 1983 |
| April 1983 |
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Leave to appeal against partial suspension of sentence refused due to applicant's failure to give evidence; bail to continue under conditions.
Criminal procedure — leave to appeal against sentence — prospect of another court reaching different conclusion — applicant's failure to give evidence — bail to continue pending application to Chief Justice and, if granted, pending appeal.
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20 April 1983 |
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An absolute maintenance warranty in a plant all‑risks policy justified repudiation where a vehicle’s hand‑brake was pre‑accident inoperative.
Insurance — Plant All Risks policy — Condition 2 'shall at all times maintain' — absolute warranty to maintain plant in efficient condition — includes vehicles insured as 'Plant' — insurer proved pre‑accident inoperative hand‑brake and missing brake rods — repudiation upheld; contra proferentem not applied. |
11 April 1983 |
| 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 |
