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Citation
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Judgment date
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| December 1986 |
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Reported
Court upheld combined redistribution and maintenance orders; homemaking counts as contribution and redistribution orders are flexibly framed.
Divorce — section 7(3) redistribution orders — wide discretion as to form and mechanics (including lump sums secured by mortgage); section 7(4) contribution requirement includes homemaking and services saving expenses; subsections 7(2) and 7(3) to be read together; misconduct may be relevant under para (d) of s 7(5); appellate interference limited absent misdirection or plainly wrong exercise of discretion.
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15 December 1986 |
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Reported
Technical engineering drawings attract copyright; reverse-engineering to produce interchangeable parts can constitute infringement.
Copyright — engineering drawings — technical drawings are 'artistic works' under 1911 Act; originality from draughtsman's skill and labour; publication by manufacture/sale may satisfy territorial/publishing rules; designs exclusion does not bar copyright where drawings are not registrable designs; reverse engineering and three-dimensional reproduction can infringe via indirect copying; owner retains locus standi despite exclusive licence; interlocutory referral for account of profits not appealable; use of competitor trade name in 'interchangeable' advertising may infringe trademark.
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15 December 1986 |
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Court ordered release where detaining authority failed to justify detention; 'is satisfied' is a subjective but limited standard.
Detention law; interdictum de libero homine exhibendo / habeas corpus; appealability of habeas-type orders; Proclamation AG 26 of 1978 (art.2) — onus on detaining authority; statutory formula 'is satisfied' denotes subjective satisfaction and limits judicial inquiry; Proclamation R101 did not ipso facto repeal prior security detention powers; exclusion of late supplementary affidavits within court's discretion.
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1 December 1986 |
| November 1986 |
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Epilepsy-based insanity defence rejected; psychiatric and factual findings supported murder conviction (dolus eventualis).
Criminal law – murder – insanity/automatism defence based on epilepsy – psychiatric observation and s.79 report – expert disagreement – credibility of experts – appellate review of factual findings – dolus eventualis – self-defence and provocation.
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28 November 1986 |
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Reported
Union's ultimatum and accompanying statement constituted election and rendered its February conciliation application fatally defective.
Labour law – strikes and lock-outs – s 35 application for conciliation board – validity of application where accompanying statement shows no dispute – estoppel by election/waiver in labour relations – effect of ultimatum and subsequent conduct on right to strike – Minister's assessment of application validity.
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28 November 1986 |
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Duty attributable to duplicated estate property must be calculated pro rata, not by an incremental increased-duty formula.
Estate duty – duplicated property – proviso to First Schedule – meaning of "the duty attributable to" – method of calculation: pro rata (proportionate) attribution required, not incremental/marginal increase. Statutory interpretation – duty levied on dutiable amount of whole estate; individual items contribute proportionately. Avoidance of anomalous double-counting from marginal attribution.
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28 November 1986 |
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Court finalised provisional costs order, refusing respondents' bid for increased costs and noting failure to tender.
Costs — provisional costs order finalised — applicant achieved limited success — respondent’s calculations of monetary success insufficient — failure to make tender relevant to costs discretion.
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28 November 1986 |
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A lump-sum for surrendering future railage-advantage earning capacity is capital, not taxable income.
Tax — Capital v revenue receipt — Lump-sum paid for consent to amend industry agreement — payment held capital as compensation for loss of income‑producing capacity. Tax — Characterisation of payments for surrender of bargaining power — analogous to restraint/compensation cases (Taeuber). Tax procedure — Late assessments and s.79(1) discretion: not determined once receipt characterised as capital.
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28 November 1986 |
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Claim construed to require two flow paths (main passage and restricted suction communication); revocation grounds failed; appeal dismissed.
Patent law — Interpretation of specification and claims — purposive construction; where claim language is flexible recourse to body and drawings is permissible — Meaning of 'passage' and 'restricted suction connection' — Utility of patent for pool-cleaning head — Prior claiming/anticipation — essential integers and claimed limitations — Obviousness requires proof on balance; conflicts in expert evidence defeat revocation.
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28 November 1986 |
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Appellate court: water-court costs order on a preliminary issue is appealable; costs reserved for decision after trial.
Water law – appeals – s 49(1) Water Act – right to appeal against final judgments of a water court includes final costs orders that dispose of part of the relief. Appealability – preparatory or interlocutory findings (declaratory ruling that a stream is public) are generally not appealable. Interpretation – s 49(2) (procedural) does not import a general leave requirement from the High Court Act to defeat the express right of appeal in s 49(1). Costs – judicial discretion to award final costs on a preliminary issue must be exercised with regard to the uncertainty of ultimate relief; costs may be reserved pending final outcome.
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28 November 1986 |
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Voluntary intoxication and limited role did not mitigate culpability where accused knowingly aided a premeditated murder.
Criminal law – Murder – Extenuating circumstances – Voluntary intoxication and lesser participation – onus to prove extenuation on balance of probabilities; instigation or guidance of killers closely connected to killing removes mitigation; precedential application of State v Smith
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28 November 1986 |
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Reported
Delegated Board authority validly terminates lease; eviction not an "own affair" requiring Presidential decision.
Community Development Act – delegated authority of standing committees – validity of lease‑termination notice; s.18(1) summary remedy does not exclude ejectment proceedings. Constitution Act – s.98(1) general law; "own affairs" (s.14) and Presidential determination (s.16) – eviction not an own‑affair requiring Presidential decision. Judicial notice – Government Gazette proclamations and incorporated plans admissible. Assignment under s.26 – does not ipso facto divest statutory body's power to sue.
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28 November 1986 |
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Reported
A guarantor is liable for lease damages resulting from a liquidator's termination under section 37(1) of the Insolvency Act.
Suretyship/guarantee – scope of liability – whether guarantor liable for lessor’s damages following liquidator’s termination under s37(1) Insolvency Act; interpretation of s37(1) proviso; overruling Strydom v Goldblatt.
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28 November 1986 |
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Reported
A recording contract granting sweeping exclusive control and little reciprocal obligation was an unenforceable restraint of trade.
Contract law – restraint of trade – recording/management agreement granting wide exclusive control and long post-term restrictions; interpretation of contractual terms ("record" v. "record and release"); public interest and onus in enforcing restraints; limits on judicial severance and partial enforcement where major re-casting required.
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28 November 1986 |
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Reported
Provocation mitigated sentence but did not negate intent; absent psychiatric proof, irresistible‑impulse defence failed.
Criminal law – murder versus culpable homicide – provocation as mitigating factor not automatically negating intent. Criminal law – non‑responsibility/insanity – s 78(1)(b) CPA replaces old 'irresistible impulse' test; inability to control must stem from mental disorder/defect. Evidentiary burden – psychiatric/clinical evidence ordinarily required to establish disease-based incapacity; absent such proof accused cannot ordinarily succeed on non‑responsibility. Sentencing – appellate interference warranted by exceptional mitigating circumstances; substituted wholly suspended term appropriate.
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28 November 1986 |
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Appeal dismissed: youth insufficient to mitigate calculated, multiple‑shot robbery‑murders; death sentence upheld.
Criminal law – murder – robbery‑murder committed by a possibly juvenile accused – discretion to impose death penalty where accused may be under 18 – youth and rehabilitation as mitigating factors – direct intent and multiple‑shot killings as strong aggravating features – rejection of self‑defence on inconsistent evidence.
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28 November 1986 |
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Appeal against murder convictions and death sentences dismissed; youth and alleged gang coercion held non‑mitigating.
Criminal law – murder in prison cell – mitigating circumstances – youth, immaturity and susceptibility to influence – alleged gang coercion – evaluation of evidence and exercise of sentencing discretion.
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28 November 1986 |
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Appellate court upheld murder convictions and death sentences, finding no extenuating circumstances for the first two appellants.
Criminal law – murder – evidence of common intention and participation – credibility of accuseds' testimony contrasted with eyewitness and bank records. Sentencing – extenuating circumstances – voluntary intoxication, drug addiction and anti-social personality do not necessarily reduce moral blameworthiness where there is planning and sustained violence. Robbery with aggravating circumstances – use of force, deprivation and removal of victim to secluded place.
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28 November 1986 |
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No lawful basis for self-defence or mitigation; murder conviction and death sentence upheld and appeal dismissed.
Criminal law – Murder – Attempted robbery – Pursuit and citizen's arrest – Use of reasonable force – Self-defence requires unlawful attack – Rejection of accused's false evidence – Extenuating circumstances not established.
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28 November 1986 |
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Death sentence substituted because trial judge misdirected on intent, double‑counted death and failed to consider mitigation.
Criminal law – Sentencing – Death penalty – appellate interference where trial judge misdirected on motive, double‑counted victim's death when sentencing for rape, and ignored mitigating effect of intoxication; improper consideration of parole prospects is a misdirection. Culpable homicide and rape: avoid duplicative consideration of causation in separate counts.
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28 November 1986 |
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Appeal against finding of no mitigating circumstances (youth/intoxication) dismissed; trial court’s conclusion was reasonable.
Criminal law – murder – mitigating circumstances (youth and intoxication) – appellate review of trial court’s finding of absence of mitigation – burden on accused to prove mitigation on a balance of probabilities – misdirection/no reasonable court test.
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28 November 1986 |
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Appellate court upheld murder and robbery convictions, finding alibis false and prosecution witnesses credible.
Criminal law – murder and robbery – appeal against conviction – assessment of witness credibility – single eyewitness evidence treated with caution but accepted – alibi rejected as palpably false – circumstantial and direct evidence excluding reasonable possibility of another assailant.
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28 November 1986 |
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Reported
Illegality as to one co-lessee under the Group Areas Act did not discharge the other co-signatories from their contractual liabilities.
Group Areas Act — meaning of "association of persons" and "disqualified company"; lease as "acquisition" of immovable property; personal illegality of one co-lessee does not necessarily void obligations of other co-signatories; interpretation of clause rendering signatories jointly and severally liable when intended company is not formed.
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27 November 1986 |
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A voluntary confession plus corroborative circumstantial evidence can sustain murder conviction without a body; appeal dismissed.
Criminal law – confession – admissibility and voluntariness – s 209 confirmation by material corroboration. Criminal law – circumstantial evidence – conviction for murder without recovery of body. Criminal procedure – duplicity/double charging – murder and child-stealing. Sentencing – alleged mitigating factors (intoxication/emotional disturbance) absent evidence.
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27 November 1986 |
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Reported
Court upheld admissibility of confessions; convictions for robbery and murder, including death sentences, were affirmed.
Confessions and identification – voluntariness and admissibility under s 217(1)(a) – role of investigating/officer as peace officer – police conduct allegations – common purpose, dolus eventualis and dolus directus in robbery‑turned‑homicide – appellate review of credibility and sentencing.
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27 November 1986 |
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Appeal allowed: conviction and death sentence set aside because identification evidence was unreliable.
Criminal law – identification evidence – reliability of in‑court identification, photo selection, identikit and identification parade – necessity to prove parade/photo procedures. Criminal procedure – effect of accused's failure to testify where no direct prima facie evidence implicates him. Sentencing – death sentence imposed for robbery with aggravating circumstances; appeal succeeded on evidential grounds so sentence not finally adjudicated.
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27 November 1986 |
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Court substituted rehabilitative suspended sentences where a drug‑dependent first offender required in‑patient treatment rather than imprisonment.
Sentencing — Drug dependence — First offender with serious addiction and favourable prognosis if treated — Magistrate’s misdirection by over‑emphasising theft of cash and general deterrence — Appropriate to invoke s. 296 of Act 51 of 1971 and order in‑patient rehabilitation — Suspended sentences conditioned on rehabilitation — Credit for time already served.
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27 November 1986 |
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Reported
A youth's presumption of immaturity may be rebutted where the offender's conduct and the heinous nature of the crime negate extenuation.
Criminal law – Sentencing – Youth convicted of murder – Prima facie presumption of immaturity can be rebutted by evidence as to mentality, education, background, nature, manner and motive of the offence; inner vice (inherente boosheid) may negate extenuation. Criminal law – Rape followed by separate, deliberate murder – motive to silence victim not mitigating (S v Ramatsheng applied). Assessment of maturity may legitimately include demeanour and conduct (e.g. fabrication of defence) but must consider all relevant factors.
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27 November 1986 |
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Appellant’s conviction set aside due to unreliable accomplice testimony and lack of independent corroboration.
Criminal law — murder — reliance on accomplice/co-accused testimony — credibility and caution — need for strong independent corroboration — inconsistent prior statements and plea explanations undermine reliability.
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25 November 1986 |
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Reported
A company’s obligation to apply lease rental to pay a share seller did not amount to prohibited financial assistance under s 38(1).
Companies Act s 38(1) – financial assistance – integrated sale-and-lease transaction – company’s commitment to apply rental receipts to pay vendor – whether such commitment constitutes prohibited financial assistance – conduit doctrine – label of payments as director’s fee does not alter substance.
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21 November 1986 |
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Whether confiscation after foreign arrest was an insured detainment or caused by non-payment of imposed fines.
Marine insurance — interpretation of Lloyd's S-G war-risks wording — meaning of 'Takings at Sea Arrests Restraints and Detainment of all Kings Princes and People' — proximate cause (causa causans) of loss — effect of judicial confiscation following non-payment of fines — sue and labour clause — choice of law: English marine insurance law as proper law versus Roman-Dutch law.
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20 November 1986 |
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Claimant must prove on balance of probabilities that he was the effective cause of the sale to claim commission.
Real estate commission – effective cause – claimant must prove on balance of probabilities that his activities were decisive operative cause of sale – introduction/mediation by third party (Maritz) negated claim – absolution of instance appropriate where claimant fails to discharge onus.
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20 November 1986 |
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Appellant's concerted conduct in closing on the victim established common purpose and justified conviction and sentence.
Criminal law – identification evidence – whether reasonable possibility of mistaken identity excluded. Criminal law – common purpose/contrectatio – liability for theft by acting in furtherance of joint enterprise without personally committing the taking. Sentencing – appropriateness of custodial sentence given prior convictions and circumstances of offence.
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18 November 1986 |
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Reported
An accused may be convicted as accessory after the fact where proved conduct shows concerted concealment despite uncertainty who killed the victim.
Criminal law – accessory after the fact (begunstiging) – s.257 Criminal Procedure Act – interpretation in light of R v Gani and Rossi‑Conti – when uncertainty who committed murder does not preclude accessory conviction; reasoning by inference (R v Blom) – role of silence, false explanations, gang affiliation and concordant statements as evidence of concerted concealment.
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14 November 1986 |
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Whether rule 6(2) applied and correct market-value compensation for expropriated land; appeal allowed, award increased.
Expropriation — valuation for compensation measured by reasonable and fair market value on date of expropriation — approach to residual valuation of township-in-the-making: market area, probable erf unit price, sales period, development costs, developer’s profit/risk. Civil procedure — security for costs of appeal — interaction of rule 6(2) and s 20(4)/(5) of Act 59/1959 — court without power under s 20(5)(b) where leave under s 20(4)(b) granted; rule 6(2) applies. Condonation — bona fide legal opinion and merits favouring grant.
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10 November 1986 |
| September 1986 |
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Reported
A cession of an existing reversionary right in securitatem debiti can constitute security under the Insolvency Act.
Companies/insolvency — application of Insolvency Act provisions (ss.44(4), 89(2), 106) mutatis mutandis to company winding-up (s.339 Companies Act). Security — cession in securitatem debiti; reversionary interest arising from prior cession can be "property" and constitute "security" under the Insolvency Act. Proof of claim — creditor who limits claim to proceeds of security under s.89(2) is not liable as a concurrent creditor for general administration costs. Appeal — raising new points on appeal permitted where respondents had notice and no prejudice would result.
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30 September 1986 |
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Plaintiff’s cumulative past efforts and introductions were held to have effectively caused defendant’s nomination and entitled plaintiff to commission.
Contract — commission — whether intermediary’s past efforts and introductions constitute effective cause of award of subcontract; construction of commission agreement; credibility findings; causation in commercial procurement.
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30 September 1986 |
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A director’s discretionary revaluation under s63(1) is reviewable where the decision is unreasonable, misconceived, or unsupported by evidence.
Valuation law – s63(1) Valuation Ordinance – correction of errors or where valuation gives rise to inequable treatment – Director must consult and apply mind; discretionary decision reviewable for mala fides, failure to apply mind, wrong principle or irrationality. Description error in roll does not necessarily vitiate a general valuation; correction may not require interim valuation.
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30 September 1986 |
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Whether emergency regulations validly authorize arrest, detention and ministerial extension of detention during a declared emergency.
Public Safety Act – sec. 3(1)(a) – interpretation of regulation-making power in emergency – whether phrase concerning termination of emergency limits power to make regulations for public safety/public order – regulation 3(1) validity – delegation and discretionary arrest/detention powers – regulation 3(3) ministerial extension of detention read in context – requirement (or not) of formal re-arrest when converting detention – bona fide opinion of arresting officer.
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30 September 1986 |
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The applicant’s concealment of Mandrax invoked a statutory presumption of dealing; dolus eventualis satisfied mens rea.
Narcotics – possession and dealing – statutory presumption (s 10(1)(a)) that possession implies dealing; 'possess' includes custody/control; mens rea satisfied by dolus eventualis, need not know precise chemical constituent; onus to rebut presumption on balance of probabilities; aiding another does not preclude liability (socius criminis).
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30 September 1986 |
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Excluding a police witness's evidence and refusing counsel withdrawal did not cause a miscarriage of justice; convictions and death sentence upheld.
Criminal law – trial irregularity – refusal of pro deo counsel to withdraw and testify; exclusion/ignoring of state witness evidence; burden on accused to prove diminished responsibility; psychiatric evidence of simulation; murder conviction and death sentence upheld; assault with intent to do grievous bodily harm sustained.
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30 September 1986 |
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Sentence reduced where trial court misdirected on leadership and unjustifiable disparity between co-accused sentences.
Criminal law – robbery with aggravating circumstances – sentencing – disparity between co-participants may warrant appellate interference where participation degrees are equal; misdirection by trial court on leadership; duty to elicit personal circumstances of unrepresented accused; appellate substitution of sentence.
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30 September 1986 |
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Appellate court reduced excessive cumulative sentences and set aside a death sentence where the trial judge misdirected on sentencing.
Criminal law – Sentencing – Armed robberies involving firearms and knives – Trial court's sentencing discretion – Misapplication of prior convictions and habitual‑criminal findings to justify death sentence under s 277. Sentencing – Totality principle and concurrency – appellate reduction of unduly harsh aggregate sentences. Sentencing – Death penalty – may only be imposed where offence, in conjunction with antecedents, makes death an appropriate punishment.
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30 September 1986 |
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Withdrawal of futile life support does not break causation between assailant’s wound and victim’s death; appeal dismissed.
Criminal law – Causation in homicide – Withdrawal of life-support/ventilator – Whether discontinuation of futile treatment is a novus actus interveniens – Brainstem death and its legal significance – Reliance on R v Malcherek.
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30 September 1986 |
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Commissioner’s prior finding not final against third parties; overtime counts only if of a constant character.
Workmen's Compensation Act — s.8(1)(b) actions by Commissioner against third parties — section 25 finality does not bar third-party challenge; s.41(1) discretion in computing earnings — "of a constant character" qualifies overtime payments; intermittent overtime excluded; absolution improperly granted where overtime was irregular.
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30 September 1986 |
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Payment for coal-rights (or later restraint) was a capital receipt; coal rights were held as capital, not trading stock.
Tax law — Characterisation of receipts — sale of mineral rights versus restraint/sterilisation agreement — timing of characterisation (time of payment or fiscal year-end) — whether mineral rights held as trading stock or capital assets — application of s 83(7)(b) on scope of objection.
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29 September 1986 |
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Reported
Whether s.5(2) of the 1919 Act invalidates an oral personal agreement to hold land for a partnership.
Land law; Landbouhoeven (Transvaal) Registrasie Wet 22/1919 – s.5(2) – prohibition relates to saaklike/registered ownership and registration of transfers; does not invalidate mere personal agreements; distinction between real rights and personal contractual obligations; fraudem legis requires showing of attempt to evade statutory purpose.
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29 September 1986 |
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A mistaken price does not void a sale absent actual or constructive knowledge by the offeree.
Contract — Unilateral mistake in offer — Transposed prices — Actual and constructive knowledge of offeree — Snapping up bargains — Burden on offeror to prove knowledge — Appellate reluctance to disturb trial judge credibility findings.
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26 September 1986 |
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A three‑page forensic declaration may be admissible under s212(4)(a) and credible police testimony can sustain drug‑dealing convictions.
Criminal procedure – admissibility of scientific report – section 212(4)(a) Criminal Procedure Act 51 of 1977 – multi‑page document may be one sworn declaration where reference numbers, stamps, dates and internal cross‑references show unity. Evidence – credibility and probability – trial court’s credibility findings not lightly displaced where witnesses are coherent and mutually supportive. Evidence – omission to call available State witnesses – no automatic adverse inference; depends on circumstances.
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26 September 1986 |
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Appellate court set aside rape conviction for failure properly to apply the sexual-assault cautionary rule and material weaknesses in prosecution evidence.
Criminal law – Sexual offences – Cautionary rule for uncorroborated complainant evidence; evaluation of credibility and probabilities; failure to call medical examiner; unexplained physical exhibits (torn clothing) as potential corroboration; standard for overturning conviction where accused’s version could reasonably possibly be true.
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25 September 1986 |
