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Citation
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Judgment date
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| December 1984 |
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Appeal dismissed: driver who failed to give way or adequately react when oncoming vehicle crossed centre line held negligent; apportionment and costs upheld.
Road traffic — apportionment of negligence — driver aware of oncoming vehicle partially over centre line, failure to give way or take adequate evasive action — appellate interference with factual findings and costs discretion.
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10 December 1984 |
| November 1984 |
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Reported
Appellate court upheld five-year sentence for attempted rape, finding magistrate properly applied deterrence, retribution and individualisation.
Criminal law – Sentencing – Objectives of punishment (deterrent, preventive, reformative, retributive) – Deterrence paramount; retribution permissible where public indignation evoked; individualisation of sentence. Criminal law – Sexual offences – Attempted rape – penetration uncertain but attempt established. Evidence – Credibility – Trial court's assessment entitled to great weight.
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30 November 1984 |
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Reported
A duly accepted composition under the Insolvency Act binds all concurrent creditors, proved or unproved.
Insolvency law – Offer of composition (s119, s120 Insolvency Act) – Whether a duly accepted composition binds all concurrent creditors, proved or unproved – Effect of notice and proving claims at creditors' meeting – Statutory novation and res judicata effect of accepted composition. Procedure – Condonation for late lodging of appeal record – granted where appeal has reasonable prospects and appellant substantially succeeds.
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30 November 1984 |
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Reported
Qualified privilege shields defamatory statements in judicial proceedings unless malice or lack of reasonable grounds is proved.
Defamation — judicial proceedings — qualified privilege for witnesses, litigants, advocates and attorneys — affidavits and pleadings — requirement of relevancy/germane nexus and some foundation — plaintiff may defeat privilege by proving malice (improper/indirect motive) or lack of reasonable grounds — absence of subjective belief not per se fatal to privilege.
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30 November 1984 |
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Reported
An appeal may proceed on the merits when a respondent deliberately withdraws representation and cannot be located.
Appellate procedure – Non-appearance and want of notice – Withdrawal of attorneys and deliberate failure to be represented – Court's discretion to hear appeal on merits when respondent's whereabouts unknown – Fairness to appellant.
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30 November 1984 |
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Applicant’s opportunistic fatal stabbing during robbery warranted death; claimed procedural irregularity and extenuation rejected.
Criminal law – Murder – Sentencing – Death sentence upheld where killing during robbery was unnecessary and opportunistic; no extenuating circumstances. Procedure – Failure to produce magistrate's-court plea record under s 234(1) – alleged irregularity did not cause failure of justice. Appeals – Absence of notice under s 317 – procedural defect, but merits considered
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30 November 1984 |
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An omitted ascertainable term in a share-sale contract does not void it; contemplated company bond did not constitute illegal financial assistance.
* Contract construction — omitted ascertainable term — blank does not necessarily void agreement; courts may infer intention from the document and prefer construction upholding validity; Companies Act s38(1) — financial assistance — clause contemplating company obtaining/increasing its own mortgage bond does not automatically amount to illegal assistance to purchaser; onus of proving illegality lies on party alleging it
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30 November 1984 |
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Reported
Court set aside convictions and remitted matter to test authenticity of a disputed letter implicating the applicant's mother.
Appeal — application to lead further evidence / remit matter — requirements (S v de Jager): explanation, prima facie likelihood, material relevance; handwriting and fingerprint expert evidence; capital case discretion to remit despite shortcomings; remittal procedure to determine authorship then alleged conspiracy; evidentiary chain of custody and procedural fairness where applicant represented pro deo.
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30 November 1984 |
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The appellant's murder conviction was upheld but sentence reduced to five years for misdirected emphasis on firearms use.
Criminal law – Murder – Credibility assessment of eye‑witnesses – Appellate restraint where trial court's findings grounded in credibility and differing vantage points. Criminal law – Intention to kill – Provocation insufficient to negate foresight where not established on evidence. Sentencing – Misapplication of general public-interest considerations regarding firearms may warrant alteration of sentence on appeal.
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30 November 1984 |
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The applicant proved a prior assault but failed to prove the respondent’s employee caused his fall; appeal dismissed.
Railway torts – alleged assault by ticket inspector – causation of fall from moving train – evaluation of credibility and inconsistencies; identification of person on vacuum‑pipe couplings; assessment of probabilities in factual disputes.
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29 November 1984 |
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Whether the appellant’s statement, obtained after procedural breaches and police misconduct, was voluntary and admissible.
Criminal procedure – admissibility of extra‑judicial statements – voluntariness – burden on State under s 217(1) CPA; failure to bring accused before court within 48 hours (s 50(1)); deceptive use of release warrants; investigator taking statements instead of magistrate; police misconduct; exclusion of confession; sufficiency of evidence for firearm possession.
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29 November 1984 |
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Employer could not recover alleged overpaid sick pay; employee awarded withheld wages with interest.
Employment law – sick leave and overpayment – leave regulations (regulation 27) do not authorize proportional recovery on termination – condictio indebiti requires proof that payments were made by mistake – set-off/promissory-note counterclaim not established – resignation for incapacity accepted.
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29 November 1984 |
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Whether the appellant proved ownership of a seized vehicle or whether the respondent is the rightful owner.
Property/ownership dispute – whether ownership passed by constitutum possessorium or attornment – proof required to establish transfer – credibility of parties and documentary evidence – appellate substitution of final order declaring owner and awarding delivery or value and specified payments.
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29 November 1984 |
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Appeal against rejection of mitigating circumstances and imposition of death sentences dismissed.
Criminal law – murder and attempted murder – mitigation – youth and emotional immaturity – psychiatric evidence showing emotional immaturity but no mental disorder – voluntary intoxication – appellate review of trial court’s factual and discretionary findings – death sentence upheld.
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29 November 1984 |
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A court must give grounded reasons to reject an accused's account; flight alone does not prove guilt.
Criminal law – evaluation of credibility – trial court must give grounded reasons before rejecting accused's version; evidence of flight not conclusive of guilt; exhibits and chain of custody – necessity of proper contemporaneous marking and records.
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29 November 1984 |
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Appeal dismissed: reliable child identification and adverse demeanour supported upholding the murder conviction and sentence.
Criminal law – Identification – Single young witness’s identification evidence evaluated on the totality of circumstances; no reasonable possibility of mistaken identity.* Evidence – Credibility – Court may give weight to witness demeanour but must exercise caution; demeanour can be one factor among many.* Appeal – Conviction and sentence – Appellate court will not disturb trial court’s findings where identification and credibility assessments are reasonable and supported by facts.
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29 November 1984 |
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Whether the death penalty for robbery can stand where the same conduct also attracted a death sentence for murder.
Criminal law – murder and robbery with aggravating circumstances arising from same conduct – avoidance of double punishment (nemo debet bis vexari); "thinking away" the murder when sentencing for robbery (S v Mathebula). Sentencing – statutory discretion under s 277(1)(c)(i) for death in aggravated robbery – scope and proper exercise. Appellate review – when death sentence for robbery is appropriate or disproportionate.
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29 November 1984 |
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Reported
Circumstantial evidence and lies insufficient to prove murder; robbery reduced to theft and sentence reduced to three years.
Criminal law – circumstantial evidence – inferences; weight of accused's lies; possession of deceased's vehicle – robbery v. theft; unreliable police 'pointing out' evidence.
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29 November 1984 |
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Appellate court set aside death sentence where factual errors and absence of exceptional brutality made capital punishment inappropriate.
• Criminal law – sentencing – whether factual misstatements and unsupported findings by trial judge vitiate a death sentence; relevance of prior convictions to sentencing.• Rape – gravity of offence – exceptional brutality required for imposition of death penalty.• Robbery with aggravating circumstances – appropriate concurrent/cumulative sentencing.• Appeals – power to set aside death sentence and substitute determinate imprisonment terms.
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29 November 1984 |
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Reported
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29 November 1984 |
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Reported
Continuing suretyships cover future advances; "and/or" does not void identity; prescription and misrepresentation defences fail.
Suretyship — continuing security for present and future indebtedness — prescription; Suretyship — certainty of identity — interpretation of "and/or"; Admissibility of surrounding circumstances to interpret surety instruments; Misrepresentation/non-disclosure by creditor — burden and proof; Alleged conversion of surety into principal debtor by partnership.
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28 November 1984 |
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The appellant's 18‑month prison term for illegal firearm possession was reduced to a suspended nine‑month sentence due to misdirected sentencing.
Criminal law – Firearms Act – unlawful possession of firearm and ammunition; sentencing – danger of over‑emphasising general public policy considerations at expense of accused's personal circumstances; misdirection by sentencing court; substitution of custodial sentence by suspended term
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28 November 1984 |
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Demountable, non‑structural partitions do not breach a lease prohibition on alterations; cross‑appeal preserved by transitional statute.
Civil procedure – Appeals – transitional provision (Act 105 of 1982 s 26) preserves appeals and proceedings in connection therewith, including cross-appeals noted after commencement. Property/Lease – construction of covenant against "alterations or additions" – demountable, non-permanent internal partitions that do not alter form or structure fall outside prohibition. Lease terms – prior-tenant fixtures and express lease clauses can authorise partitioning and removal, negating cancellation for alleged unauthorised alterations.
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28 November 1984 |
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Appellant’s self-defence claim rejected; forensic and eyewitness evidence supported murder conviction, appeal dismissed.
Criminal law – murder – evaluation of credibility of eyewitnesses and accused; rejection of accused’s version. Criminal law – self-defence – defendant’s claim rejected where conduct exceeded reasonable defensive response. Evidence – medical/forensic evidence of multiple stab movements and broken blade corroborating intent or foresight of fatality. Circumstantial evidence – possession of illegal drug and prior threats relevant to motive, but insufficient alone to prove premeditation.
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28 November 1984 |
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The appellants' death sentences upheld for violent, premeditated robbery with aggravating circumstances.
Criminal law – Robbery with aggravating circumstances – Premeditation, use of weapons, prolonged violence, binding and sexual threat – Sentencing: death penalty justified where aggravating factors outweigh mitigation – Co-perpetration and attribution of conduct – Appellate review of sentence and trial regularity.
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28 November 1984 |
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Trial court’s failure to obtain radiographs in a borderline juvenile age dispute rendered sentencing irregular; death sentences substituted with imprisonment.
Criminal law – Sentencing – Age determination in borderline juvenile cases – necessity of combined dental examination and radiographs – irregularity if X‑rays not obtained; appellate court may exercise statutory discretion where remittal would be futile.
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28 November 1984 |
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The applicant insurer failed to prove the respondent breached VFR/airworthiness warranties or was negligent after an in-flight emergency.
Insurance law – aircraft hull policy – insurer bears onus to prove breach of express warranties or conditions precedent to avoid liability. Aviation – Visual Flight Rules (VFR) vs Instrument Flight Rules (IFR) – application determined by actual weather at point of operation. Evidence – credibility findings, contemporaneous accident report and in loco inspection relevant to factual findings. Emergency doctrine – mechanical failure creating emergency can justify otherwise risky manoeuvres; absence of negligence where reasonable steps taken to avoid or diminish loss. Counterclaim based on cession fails where primary breach/negligence not established.
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27 November 1984 |
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Reported
Insurer’s clear 12‑month policy time‑bar not negatived by implied term or estoppel; interim payment not repayable.
Insurance law – interpretation of policy time‑bar clause; implied (tacit) terms – necessity and precision for implication; estoppel – requirements and knowledge of contractual terms; interim payments – non‑recovery where policy time‑bar relieves insurer of future liability.
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27 November 1984 |
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Reported
A regulation requiring purchaser declarations is administrative; failure to comply does not forfeit the statutory rebate entitlement.
Customs and excise – Rebate of excise duty – Item 609.05.10 – Regulation 410.04.04(a) – Whether regulation creates condition precedent to rebate entitlement – Interpretation of "subject to the provisions of this Act" in s.75(1) – Liability and timing of entry for home consumption – Administrative vs substantive effect of regulations.
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26 November 1984 |
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A child’s credible identification upheld, voice ID of limited value, alibi and remittal refused; convictions and sentences affirmed.
Criminal law – murder – identification evidence – reliability of child witness – acceptance despite youth when opportunity to observe and prompt naming established. Criminal law – identification – voice identification – limited value if not specifically explored. Criminal procedure – alibi – assessment of credibility and tailoring of testimony. Civil/criminal procedure – application to remit for further evidence – futility where further evidence would not materially assist accused.
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26 November 1984 |
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Appellant failed to prove respondent agreed to more than bleeding the brakes or that any breach caused the collision.
Contract—scope of repair agreement; whether agreement required bleeding only or full cleaning of brake hydraulic system; evidential onus in breach of contract; causation—proving that alleged non‑performance caused wheel seizure and collision; evaluation of expert evidence; absolution in civil trial.
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23 November 1984 |
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Reported
Section 22(1)(bb) excludes general damages for ordinary passengers, limiting insurers' liability to specified items up to R12,000.
Statute construction – Compulsory Motor Vehicle Insurance Act s 22(1)(d),(bb) – meaning of exclusionary phrase; whether general damages are excluded for ordinary passengers. Use of legislative history and context to resolve textual ambiguity. Limitation of insurer’s liability to specified pecuniary items up to R12,000; exclusion of general damages for ordinary passengers.
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23 November 1984 |
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Appellant failed to prove driver’s negligence; prior written statement not admissible to establish truth, appeal dismissed with costs.
Delict — negligence — driver’s duty to keep proper lookout — necessity of evidence on visibility, pedestrian’s conduct and lighting to establish negligence. Evidence — prior written statements — inadmissibility of a witness’s prior statement to prove truth unless recognised exceptions apply. Civil burden — proof on a balance of probabilities — failure to prove causation due to evidentiary gaps.
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23 November 1984 |
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Claim of extenuating circumstances rejected where evidence demonstrated premeditated murder and no enduring emotional disturbance.
* Criminal law – Murder – Existence of extenuating circumstances – Whether emotional disturbance or provocation mitigates blameworthiness – Premeditation versus sudden passion. Appeal – Standard of review – Appellate interference with trial court's factual conclusion only where misdirection, irregularity or perverse conclusion shown. Evidence – Prior conduct and theft of weapon as indicia of premeditation
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22 November 1984 |
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Reported
A statutory industrial court is not equivalent to the Supreme Court and its determinations are not exempt from review.
Labour Relations Act s 17(11) – industrial court’s character – judicial, quasi-judicial and administrative functions – not equivalent to Supreme Court division; review by Provincial Divisions not excluded by necessary implication; appeal and review jurisdiction; statutory composition, tenure and ministerial oversight relevant to institutional status.
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22 November 1984 |
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Reported
Whether negligent performance of contractual professional services can ground a separate delictual claim for patrimonial loss.
Delict and contract — negligent performance of professional services — whether contractual relationship precludes Aquilian liability for patrimonial loss; negligent misstatement; measure of damages (contractual v patrimonial); effect of assignment of contract; policy considerations in extending delictual duties.
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20 November 1984 |
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Convictions upheld where credible eyewitness ID and admissions established a prima facie case despite appellants' silence.
Criminal law – Identification evidence – single-witness identifications – sufficiency and assessment of cogency; Criminal law – Failure to testify – effect where prima facie case established; Criminal procedure – Identification parades – alleged irregularities and vitiation; Criminal procedure – Trial court calling/recalling witnesses mero motu (s.186) – investigation of alibi; Criminal law – Common purpose in robbery and murder; conviction and sentence upheld.
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19 November 1984 |
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Reported
Insurer validly avoided policy for insured’s non‑disclosure of material aerodrome hazard; materiality judged by objective reasonable‑man test.
Insurance law – duty to disclose material facts – duty imposed ex lege – materiality judged objectively by reasonable person in position of proposer – rejection of distinct "uberrimae fidei" category – insurer entitled to avoid policy for non‑disclosure of hazard (pole/overhead lines and flare‑path warnings) – municipal officer’s knowledge imputed to municipality.
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16 November 1984 |
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Whether unpaid premium caused lapse of insurance and whether an endorsement or estoppel revived or created cover.
Insurance — short-term periodic-premium policy — non-payment of quarterly premium causes coverage to lapse for subsequent period — endorsement issued by unauthorised clerk does not revive or create contract — estoppel requires negligent or misleading representation — pleaded case and opening binds party at trial.
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15 November 1984 |
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Reported
Prominent use of the word "BABY" in a compound mark can infringe a prior registered mark if it causes likely consumer confusion.
Trade mark infringement — use as trade mark; likelihood of deception or confusion (s 44(1)(a)) — comparison of marks by sense, sound and appearance in market context; bona fide descriptive use (s 46(b)) — limits where descriptive word is used prominently as part of mark; proviso to s 44(1) — onus on defendant to show use will not be taken as indicating a trade connection; reputation and manner of use relevant to proviso; part B registration and evidential effect of acquired goodwill.
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9 November 1984 |
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Appellant's concealment, lies and unexplained possession of pipes supported conviction for theft; appeal dismissed.
Criminal law – theft – circumstantial evidence – possession, concealment, lies and silence as factors in inferring dishonest intent. Evidence – accused’s silence and pre-arrest lies – cannot alone supply proof but relevant when considered with other evidence. Evidence – recent possession doctrine – possession months after theft remains probative when combined with concealment and lack of explanation. Criminal procedure – evaluation of witness credibility and drawing of reasonable inferences from the totality of evidence.
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6 November 1984 |
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Unexpected disappearance of the file and simultaneous illness/absence amounted to special circumstances warranting extension of time.
Road Accidents Act (Act 56 of 1972) – s 24(2)(a)(i) – extension of time where claim prescribed – meaning of 'special circumstances'. Attorney and staff negligence – when administrative staff default disqualifies claimant – distinction between full delegation of responsibility and mere administrative tasks. Causation – requirement that special circumstance be at least a conditio sine qua non of non‑compliance; may require effective/direct causal link. Relief – court may extend statutory compliance periods where circumstances are blameless, extraordinary and causally connected to non‑dispatch of MVA 13.
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5 November 1984 |
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Defendant failed to yield entering the main road and was solely negligent; plaintiff did not contribute to the collision.
* Road traffic – Collision at T-junction governed by a yield sign – duty to yield when entering major road – failing to yield and cutting corner deemed negligent. Negligence – causation – defendant held sole cause; plaintiff’s emergency evasive action reasonable. Contributory negligence – onus on defendant to prove plaintiff’s contributory negligence; not established. Evidence – credibility assessments and physical evidence (concentration of broken glass, police plan) supported trial court’s findings
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1 November 1984 |
| September 1984 |
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Appellate court substituted 20 years’ imprisonment for death where trial judge failed to properly balance mitigating factors.
Criminal law – Sentencing – Death sentence for robbery with aggravating circumstances – Trial judge’s duty to consider alternatives with anxious deliberation (S v Letsolo; S v V) – Need to balance aggravating and mitigating factors – Appellate intervention where discretion miscarried; substitution of long term imprisonment and ordering concurrent sentences.
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28 September 1984 |
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Participation in a planned armed robbery with loaded pistols established foresight of lethal force; appeals and claims of extenuation dismissed.
Criminal law – Murder – Intention and common purpose – Whether carrying and using loaded pistols in a planned robbery establishes foresight and intention for murder. Evidence – Credibility assessments – Rejection of self‑serving testimony inconsistent with medical and other evidence. Sentence – Death penalty – Whether extenuating circumstances exist where lethal force was foreseeable in planned armed robbery.
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28 September 1984 |
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Appeals against murder convictions and death sentences dismissed; co‑participants liable where they foresaw and accepted risk of lethal violence.
Criminal law – Murder – Intention to kill; common purpose liability where only one participant fires fatal shots; foreseeability and acceptance of lethal risk by co-participants; assessment of credibility and absence of extenuating circumstances for death sentence.
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28 September 1984 |
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A driver was held partially liable for negligently striking a pedestrian on an unlit road where sidewalk conditions made pedestrian use foreseeable.
Motor vehicle accident – negligence – pedestrian struck on unlit road – foreseeability of pedestrian use of road due to unsafe sidewalks – apportionment of damages – duty of driver to keep proper look-out under adverse conditions.
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27 September 1984 |
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Driver liable for failing to keep lookout and speed given foreseeable pedestrians on wet, unlit road.
Motor-vehicle negligence; duty to keep proper lookout and to drive at safe speed; foreseeability of pedestrians using roadway when sidewalks are wet, overgrown and unlit; contributory negligence and apportionment; appellate review of trial court findings and discretion.
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27 September 1984 |
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Sentence reduced where trial court overemphasised prior record and underweighted intoxication and provocation.
Criminal law – sentencing – mitigation and extenuation – weight to be given to intoxication and provocation; prior convictions – assessment of antecedents and their weight; Criminal law – murder and attempted murder – inability to murder a person already dead but liability for attempted murder for further lethal assaults.
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27 September 1984 |
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Reported
Enforceability of a restraint of trade is assessed by public‑interest impact at the time enforcement is sought; resistors bear the onus.
Restraint of trade — enforceability judged by public policy/public interest at time of enforcement; burden on party resisting enforcement to prove public‑interest harm; courts may grant partial relief; penalty clauses — debtor bears onus to show disproportion, court may reduce under statute
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27 September 1984 |
