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Citation
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Judgment date
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| December 1985 |
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Reported
Clause requiring court finality within six months was a suspensive condition; failure to obtain it discharged the sale.
Contract law – interpretation of special condition – clause requiring court order finality within six months constitutes a suspensive condition; non‑fulfilment discharges contract automatically; doctrine of fictional fulfilment requires proper pleading and evidence.
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2 December 1985 |
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Appellate court set aside a death sentence for a robbery as disproportionate, substituting imprisonment and ordering concurrent terms.
Sentencing – death penalty – appellate review of capital sentence – misdirection where similar offences form a pattern – substitution of long determinate term; concurrency to achieve realistic effective sentence.
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2 December 1985 |
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Reported
Whether the lessor must give seven days' notice to remedy non-payment before converting a long lease to a monthly tenancy.
Contract — construction of written agreements — effect of struck-out/deleted words — deleted words excluded from contract; extrinsic evidence and surrounding circumstances admissible only when language is ambiguous — segregation of clause into distinct groups — lease law — conversion of long lease to monthly tenancy for non-payment — whether seven days' notice to remedy required.
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2 December 1985 |
| November 1985 |
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Appellate Division has jurisdiction; no binding 6 March 1980 settlement; completion fees limited to statutory minimum hourly rates.
• Jurisdiction – Appellate Division’s power to hear appeals from Supreme Court of South‑West Africa – Proclamation 222 issued under s 38 validly amends applicable Acts in relation to the territory.
• Contract/partnership – whether an oral settlement was concluded – requirement of mutual acceptance; reservation pending legal advice defeats agreement.
• Partnership accounts – correctness of annexed financial statements; final‑account expenses for completion work to be calculated on minimum statutory hourly rates.
• Judicial discretion – courts may adjust asset division on partnership dissolution to achieve just and equitable result.
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29 November 1985 |
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Reported
Adoption does not extinguish an adopted child’s claim for loss of maintenance from wrongful death of natural parents.
• Damages — loss of maintenance — adopted child’s entitlement to compensation following wrongful death of natural parents.
• Adoption — effect on pre-existing claim for loss of support — adoption does not extinguish claim.
• Calculation of damages — capital award for future maintenance, application via guardian fund, and not constituting double compensation.
• Contingencies — distinction between remarriage of widow and adoption of child when assessing mitigation of damages.
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29 November 1985 |
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Reported
A company's principal place of business within a court's area permits branch service; residence service irregular but condonable.
Rules of Court – Rule 4(1)(a)(v) – Service on companies – "Principal place of business within the court's jurisdiction" means the main place of business within that court's territorial area; companies may have multiple places of business – Service at branch manager's private residence irregular but not a nullity – Condonation permissible under rules 27(3) and 30(3) where no real prejudice and full particulars previously furnished – Distinction from jurisdiction cases (Sciacero; T W Beckett) emphasized.
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29 November 1985 |
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Reported
Description by flat numbers and receipt of registered-post demand (even at a P.O. Box) satisfied formalities; cancellation was valid.
Formalities – sale of sections in a sectional-title scheme – description by existing block and flat numbers sufficient; Sectional Titles Act provisions permit undivided share to be determined on registration. Sale of Land on Instalments Act s.13(1) – demand by registered post need only reach purchaser; 'last known address' wording directory. Cancellation – takes effect on receipt; posting before expiry does not make cancellation premature.
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29 November 1985 |
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Reported
Failure to disclose a magistrate’s confession did not constitute an irregularity where prosecution informed the court and defence did not request inspection.
Criminal procedure – disclosure obligations of the prosecutor – duty to inform court and disclose prior statements – distinction between privileged police statements and non‑privileged magistrate confessions – special entry under s 317(1) and appeal under s 318(1).
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29 November 1985 |
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Reported
Arbitration clause applies only if insurer elects arbitration; insurer’s repudiation triggered three-month forfeiture of claim.
Insurance — construction of policy clauses — arbitration clause as condition precedent — applies only where insurer disputes quantum and elects arbitration; repudiation/ disclaimer of liability invokes forfeiture clause requiring action within three months; no implied duty on insurer to elect or notify to preserve insured's right to sue.
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29 November 1985 |
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Parties may validly agree to exclude future court variation of agreed maintenance under section 8(1).
Family law – Divorce Act 70 of 1979 – maintenance – validity of contractual waiver of right to apply under s 8(1) for variation – section 7 maintenance orders must be made at time of divorce – s 8(1) only varies orders made under s 7.
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29 November 1985 |
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Appellate court reduced sentence where trial court overemphasised aggravation and underweighted the offender’s youth and background.
• Sentencing — consideration of subsequent convictions occurring after commission of offence but before sentence. • Sentencing — proper weight to youth and personal circumstances when offender was a child at time of offence. • Sentencing — limits on use of community outrage and unrelated events (e.g. murders by another) as aggravation. • Sentencing — inappropriate emphasis on "inherent wickedness" and hypothetical reference to death penalty may distort sentencing discretion.
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29 November 1985 |
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Reported
Tenants cannot rely on Rent Control Act protection once the premises cease to be controlled; the withdrawal notice was valid.
Rent Control Act – withdrawal of rent-board jurisdiction – Government Notice validity despite erroneous empowering-section citation; section 2(2) and (3) permit withdrawal or revival of jurisdiction (including direct one‑step withdrawal); effect of withdrawal and proclamation amendment: premises cease to be "controlled premises"; tenants acquire no vested statutory right to continued protection after control ends; ejectment permissible once control validly withdrawn.
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28 November 1985 |
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Reported
A secret inducement to an agent vitiates the contract and arbitral award; the induced party may repudiate and recover related costs.
Contract law – bribery/secret inducement to agent – where an agent/director of a contracting party is secretly given an option/insurance/payment to procure a contract, the contract (and arbitral award under it) may be repudiated; proof of influence or public-policy/anti-corruption grounds justify non-enforcement; damages for legal costs recoverable.
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28 November 1985 |
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Whether the applicant acted with dolus eventualis despite intoxication; conviction and 15-year sentence upheld.
Criminal law – Intent – dolus eventualis – whether attacker foresaw risk of death and continued to act recklessly despite intoxication. Evidence – intoxication by alcohol and diazepam – effect on criminal capacity and assessment of mens rea. Sentencing – youth, background and psychiatric traits as mitigating factors weighed against brutality of offence; appropriateness of lengthy imprisonment and recommendation for treatment.
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27 November 1985 |
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The appellant's diaper product infringed the respondent's patent by embodying all essential claim integers.
Patent law – claim construction: "substantially planar" construed relatively to crotch; Expert evidence in patent cases – guidance admissible but opinion on infringement not determinative; Infringement analysis – essential integers must all be present; Res ipsa loquitur and specification support causal inference that elastic arrangement produces rugosities; Packaging/folding does not avoid infringement.
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27 November 1985 |
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Accused failed to prove extenuating circumstances; anger alone insufficient, appeal against murder conviction dismissed.
Criminal law – Murder – Extenuating circumstances – Burden on accused to prove on balance of probabilities – Tripartite inquiry into circumstances affecting mental or emotional state – Anger alone insufficient to constitute mitigation.
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27 November 1985 |
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Appellant’s near-adult age and limited education did not mitigate deliberate, cold-blooded murder and aggravated robbery; appeal dismissed.
Criminal law – murder and aggravated robbery – sentencing – death penalty – whether age and limited education constitute mitigation; deliberate use of firearm and impersonation of police as aggravating factors; review of sentencing discretion.
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27 November 1985 |
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Whether murder convictions can be sustained by inferred foresight of fatal consequences from a joint purpose to rob.
Criminal law – Murder on joint enterprise – inference of subjective foresight (dolus eventualis) from participation in planned robbery – circumstantial evidence – credibility of co‑accused statements; Sentencing – extenuating circumstances where personality defects, susceptibility to influence and recent drug‑induced psychosis diminish moral blameworthiness.
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27 November 1985 |
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Appellate court reduced sentence and suspended part due to mis‑exercise of sentencing discretion and significant mitigating circumstances.
Criminal law – Sentencing – appellate interference where trial court misapplies sentencing discretion; mitigation and personal circumstances (youth, first offender, mother) justify partial suspension of sentence. Criminal law – Joint enterprise/role of co‑accused – uncertainty as to leadership affects appropriate severity of sentence.
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26 November 1985 |
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Appellant’s severe intoxication found to mitigate murder; death sentence substituted by twelve years' imprisonment.
Criminal law – Murder – Intoxication as potential mitigating circumstance – Trial court misdirection on law – Appellate reassessment of mitigation – Death sentence substituted by imprisonment.
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26 November 1985 |
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Reported
Court enforces agreed attorney-and-client costs in money-lending default judgments unless defendant proves substantial grounds to displace them.
Costs in money-lending transactions – enforceability of contractual stipulations for attorney-and-client costs – Limitation and Disclosure of Finance Charges Act s 5(1)(e)(i) proviso permits court to disregard but discretion must be judicially exercised – defendant bears burden to show grounds for departure – default judgment not alone a basis to refuse agreed costs.
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26 November 1985 |
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The appellants failed to establish extenuating circumstances; death sentences for murder as accomplices were upheld.
Criminal law – murder – accomplice liability – imputation of principal’s lethal act to co-offenders – foresight of possible fatal consequence; Sentencing – onus on accused to establish extenuating circumstances on balance of probabilities (S v Ndlovu); Appeal – appellate restraint where trial court’s factual findings are reasonable; Death sentence upheld.
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26 November 1985 |
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Credible eyewitness testimony and corroborating forensic evidence justified convictions and upheld the death sentence.
Criminal law – murder and attempted robbery – credibility of sole eyewitness and corroboration by physical evidence (bloodstains, location of body). Evidence – alleged motive to fabricate – relationship breakdown held insufficient to impeach eyewitness. Sentencing – intoxication and youth considered but not mitigating given concerted, violent nature of crime; death sentence upheld.
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22 November 1985 |
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Appellate court reduced sentence where trial judge omitted consideration that accused acted under influence and without premeditation.
Criminal law – Murder – Sentencing – Appellate interference where trial judge failed to consider an important mitigating factor (probable handing over of firearm and influence by manager); mitigation, lack of premeditation, and accused’s good character relevant to reduction of sentence.
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21 November 1985 |
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Whether a transport permit is void for inadequate statutory notice and whether delay barred the applicant's review.
Administrative law — judicial review of statutory tribunal action — compliance with statutory/regulatory publication requirements — defective or misleading Gazette particulars — denial of opportunity to object renders decision reviewable and invalid; Civil procedure — exercise of judicial discretion where review proceedings delayed — delay assessed by weighing explanation, prejudice, public interest and prospects/merits.
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21 November 1985 |
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Ten-year sentence for killing reduced to six years due to provocation, youth and intoxication.
Criminal law – sentencing – assault with deadly weapon resulting in death – assessment of mitigation (provocation, youth, intoxication, attempt to disarm) – weight of previous convictions – appellate interference where sentence unduly severe.
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19 November 1985 |
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Appellant failed to prove respondent was bound by an oral lease, and the "reasonable rental" term was void for vagueness.
Ejectment; oral/informal lease; "reasonable rental"; vagueness of contractual terms; capacity to bind during provisional liquidation; adequacy of affidavit averments.
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19 November 1985 |
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Convictions based mainly on a single dubious accomplice's testimony were unsafe and therefore set aside.
Criminal law – accomplice evidence – single key witness of bad character and participating role – necessity of strict application of cautionary rule and risk-reduction analysis. Criminal evidence – credibility – inconsistent statements, unexplained delay, close ties to police informant undermine reliability. Forensic/corroborative evidence – absence of physical evidence weakens testimonial case. Appeal – convictions unsafe where trial court failed adequately to evaluate accomplice testimony.
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15 November 1985 |
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Hand-written non-payment clause did not self-cancel the contract; seller had to communicate election to cancel.
Contract interpretation – handwritten versus printed terms – reconciliation of clauses; cancellation for breach – communication of election to cancel required; clause providing registered-post 30-day notice and forfeiture operates for general breaches while specific hand-written instalment clause permits prompt cancellation (subject to communication).
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15 November 1985 |
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Appellate court substituted murder conviction with assault with intent to grievously harm due to lack of causal proof.
Criminal law — Joint enterprise and causation — Proof required to link earlier assault to later fatal attack — Weight of eyewitness testimony on victim’s condition and door security — Competent verdict on lesser charge (s 258(b)) — Appellate substitution of conviction and sentence under s 322(1).
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12 November 1985 |
| September 1985 |
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Appellant’s false account and forensic evidence justified inferring intent to kill; appeal dismissed.
Criminal law – murder – evaluation of accused’s version versus forensic and circumstantial evidence – when a false explanation permits inference of intent to kill; handling of firearm and absence of residue on victim; significance of shoe damage indicating exit from moving vehicle.
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30 September 1985 |
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Appellant radiologist’s excessive administration of contrast caused infant’s seizures and death; appeal dismissed.
Medical negligence – Radiology – administration of contrast medium – alleged overdose of Urografien – causation of seizures and death – expert evidence on effects and electrolyte findings – responsibility of radiologist for dose and rate – culpable homicide.
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27 September 1985 |
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Reported
Whether an unauthorised secretary's receipt of payment 'in full and final settlement' bars a subsequent claim for the unpaid balance.
Attorney error and blank power; authority of firm secretary to accept settlement; payment as partial satisfaction versus full and final settlement; estoppel; contractual scope of architectural services and entitlement to fees.
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27 September 1985 |
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Possession of a hand‑grenade proved; accused failed to discharge statutory onus of no intent; appeal dismissed.
Criminal law – possession of an explosive – section 2(1)(c) Terrorism Act 83 of 1967 – statutory onus on accused to prove absence of intent to use. Evidence – chain of custody – photographic record, exclusive custody by expert and lawful destruction do not vitiate identification. Evidence – credibility and assessment of single witnesses and corroborative circumstantial evidence. Sentencing – effect of later repeal of Terrorism Act and abolition of mandatory minima (argument withdrawn).
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27 September 1985 |
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Reported
Whether the State is vicariously liable where an off‑duty policeman maliciously misused conferred police powers.
Vicarious liability – course and scope of employment – police officer acting off duty in private clothing – whether acts fall within employer's risk created by appointment; Police powers – Section 5 and 6 Police Act – exercise of police functions outside usual place/hours; Creation‑of‑risk doctrine as basis for employer liability for misuse of conferred powers; Malicious prosecution – chain of causation not broken.
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27 September 1985 |
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Imprisonment justified by dangerous intoxicated driving, but 12‑month term reduced—half suspended for first offender.
Criminal law – Driving under the influence – Imprisonment without option of fine may be justified where aggravating circumstances exist; length of term must be proportionate for first offenders; suspension of part of sentence appropriate to achieve consistency and account for personal circumstances.
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27 September 1985 |
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Two-year prison sentence for small-quantity dagga replaced by 500 hours' periodic imprisonment due to mitigating personal circumstances.
Sentencing — possession of small quantity of dagga — balancing community interest and individual circumstances — appropriateness of non-custodial alternatives — periodic imprisonment (s 285 Criminal Procedure Act) substituted for immediate imprisonment.
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27 September 1985 |
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Reported
Appeal court reduces 18-year sentence to 10 years because sentencing court misapplied and failed to investigate mitigating facts.
Criminal law — Sentencing — Excessive sentence — Plea and s.112/s.115 statements — Duty of sentencing court to investigate mitigating facts where heavy sentence contemplated — Inconsistent factual findings at sentencing justify appellate interference.
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27 September 1985 |
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Forensic and circumstantial evidence upheld murder and robbery convictions; no extenuating circumstances and appeal dismissed.
Criminal law – housebreaking, murder and robbery – forensic and circumstantial proof of entry, struggle and possession of weapon – adverse inference where accused alone could explain events (R v Mlambo) – mandatory death sentence for murder where no extenuating circumstances – discretion to impose death for robbery where aggravating circumstances present.
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27 September 1985 |
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Reported
Agent’s silence about an onerous small-print clause vitiated consensus; appellant not bound by date-change liability.
Contract formation – consensus ad idem – justus error induced by silence of agent – incorporation of onerous small-print term – caveat subscriptor inapplicable where signatory misled – costs: unsuccessful summary judgment and wasted costs borne by unsuccessful party.
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27 September 1985 |
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Reported
A restriction on separate alienation under the Agricultural Credit Act may survive loan repayment and bind successors.
Agricultural Credit Act s35; endorsement on title deeds; restriction on separate alienation; survival after loan repayment and bond cancellation; statutory interpretation; purpose to preserve economic farming unit; Ministerial power to endorse and to cancel; effect against successors in title.
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26 September 1985 |
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Serious cheque-fraud mitigated by extortion; appellate court set aside excessive sentence and imposed a wholly suspended term.
Criminal law – Fraud by cheque duplication – 52 counts, total R146,377.04. Extortion/duress – prolonged threats to accused and family considered in mitigation though necessity defence unavailable. Procedure – Plea on statement (s112 Criminal Procedure Act) and right not to testify; courts should not penalize use of s112. Sentencing – appellate intervention warranted where sentence is unreasonable on the totality of facts; full suspension justified given mitigation, restitution and prospects of rehabilitation.
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26 September 1985 |
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Reported
Section 9(4)(b) exemption unavailable where transfer stems from separate contractual allocation, not from the trust instrument.
Transfer duty — s 9(4)(b) Transfer Duty Act — exemption applies where trustee transfers to persons "entitled thereto" under trust instrument — meaning of "entitled thereto" — requirement of a right under the trust deed — completed allocation agreement giving contractual claim distinct from trust instrument — transfer arising from separate transaction attracts transfer duty.
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25 September 1985 |
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Convictions and death sentences upheld: accomplice and eyewitness evidence deemed credible; no extenuating circumstances found.
Criminal law – Murder – Conviction based on accomplice evidence and eyewitness identification – Application of cautionary rule to accomplice testimony – Evaluation of credibility on review – Sentencing – absence of extenuating circumstances; moral blameworthiness of instigator.
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25 September 1985 |
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Reported
A repairer who lawfully possessed a vehicle may claim a retentive lien despite knowledge of third‑party ownership and an anti‑lien clause.
Retentive lien – repairer’s right to retain vehicle for unpaid repair costs – lawful possession obtained by repairer – knowledge of third-party ownership and hire-purchase clause do not automatically defeat lien; mala fides and cases involving express prohibition of repairs (Tyre & Motor Supply) distinguished; indemnity clause in discounting agreement inapplicable.
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25 September 1985 |
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Sentence reduced and suspended where indictment quantum was uncertain and strong mitigating circumstances existed.
Criminal law – fraud – defective charge sheet with internal inconsistencies and uncertain quantum – inadmissible hearsay – sentencing: counts taken as one; significant mitigation (financial hardship, family responsibilities, remorse) justified a suspended global sentence.
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25 September 1985 |
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Reported
Grant of rights by statutory claim-license holders is not a "lease of rights to minerals" under s3(1) Act 50/1956.
Mining law — Distinction between common-law mineral leases and statutory claim licences; meaning of "lease of any rights to minerals in land" in s3(1) General Law Amendment Act 50/1956; notarial attestation and registration requirements apply to mineral leases registrable in Deeds Office, not to statutory claim licences; s3(2) exemption not adjudicated.
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25 September 1985 |
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Alleged intent to 'scare' and lack of sophistication did not constitute extenuating circumstances; murder conviction and death sentence upheld.
Criminal law – Murder – Extenuating circumstances – Whether accused's rural background, lack of education or spur-of-the-moment action reduced moral blameworthiness – held not sufficient. Criminal law – Intention – Dolus eventualis (possibly dolus directus) established where accused aimed and fired at a human at close range. Evidence – Credibility assessments and rejection of improbable account upheld on appeal.
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25 September 1985 |
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Appeal allowed where trial court overvalued single-witness complainant evidence, leaving reasonable doubt.
Criminal law – rape – single-witness (complainant) evidence – cautionary rule – requirement that testimony be clear and satisfactory in all material respects. Evidence – evaluation of credibility – approach where accused's version and other witnesses contradict complainant – weighing probabilities and surrounding circumstances. Appellate review – whether trial court demonstrated by its reasons that it properly applied the cautionary rule.
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24 September 1985 |
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Death sentences on the appellants set aside where foreseeability of the fatal shooting was not proved.
Criminal law – Attempted robbery with aggravating circumstances – Identification by child witness; accomplice evidence; admissibility and weight of pointing out/confessional statements to a peace officer. Criminal law – Murder – dolus eventualis; whether accused foresaw likelihood of death. Sentencing – Discretion on imposition of death penalty; appellate interference where misdirection or disproportion.
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23 September 1985 |
