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Citation
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Judgment date
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| December 1987 |
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Reported
Court allowed appeal, held refusal to wind up appealable, and remitted disputed factual issues for viva voce evidence.
• Companies law – Winding-up – Appealability of order refusing provisional winding-up – s 339 Companies Act does not render Insolvency Act appeal-bar applicable to antecedent proceedings.• Companies law – s 339 – applies insolvency law mutatis mutandis to winding-up process, not to antecedent litigation.• Company law – Locus standi – shareholder and creditor applicants – 'tangible interest' relevant to court's discretion, not an absolute precondition for standing.• Civil procedure – Provisional winding-up – where affidavits disclose fundamental disputes of fact and no preponderance, court should ordinarily remit to viva voce evidence.• Company law – Bona fide disputed debt (Badenhorst-rule) – does not automatically preclude remittal where core factual issues require oral evidence.
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3 December 1987 |
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Reported
Registered restrictive township title conditions are praedial servitudes enforceable by other lot-holders; municipal consent cannot override them.
Property law – restrictive title conditions in proclaimed townships – registered as servitudes – praedial in nature – run with the land and enure for benefit of other erven. Locus standi – owner of neighbouring erf may enforce registered restrictive title condition. Town planning – municipal consent does not override registered title conditions. Interpretation – Condition B7(a) prohibits retail trading on industrial erven except narrow exceptions. Remedies – prohibitory interdict available to protect registered servitudes without proof of damage.
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2 December 1987 |
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Reported
Whether the applicant kept permanent residence rights after becoming a Ciskei citizen, but lost visa-free entry.
Status of Ciskei Act 110 of 1981 — s 6(3) — preservation of existing rights, privileges and benefits of Ciskei citizens resident in the Republic — meaning of "except as regards citizenship". Aliens Act 1 of 1937 — s 12(1)(a) — domicile/permanent residence exemption from requirement for permit. Admission of Persons to the Republic Regulation Act 59 of 1972 — s 40(1) — visa requirement and exception for South African citizens by birth or descent. Effect of loss of South African citizenship on rights to permanent residence and visa-free entry. Ministerial exemptions and withdrawals under Aliens/Admission Acts — limits where domicile exemption applies.
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2 December 1987 |
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Conviction for culpable homicide upheld; sentence varied because gross negligence not established given appellant's severe impairment.
Criminal law – Culpable homicide – gross negligence – application of reasonable‑person standard where accused's capacity impaired by severe pain and provocation – sentencing misdirections and appellate variation of sentence; evidentiary issue as to calling material witness.
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1 December 1987 |
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Conviction based on accomplice testimony lacking substantial corroboration was unsafe; the applicant is acquitted.
Criminal law – Evidence – Accomplice testimony – Necessity for substantial corroboration before conviction; scrutiny and caution required. Criminal procedure – Investigation – Failure to trace or call possible witnesses and to investigate vehicle ownership may undermine State case. Appeal – Substitution of verdict permissible where conviction is unsafe due to lack of corroboration and investigative defects.
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1 December 1987 |
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Reported
School pupils are not a "particular population group" or "inhabitants of a particular area"; appellee's conduct amounted to sabotage under s54(3)(c).
Internal Security Act s54(1)(d), s54(2)(c), s54(3)(c) – meaning of "particular population group" and "inhabitants of a particular area" – school pupils do not constitute those concepts; subversion requires intent directed at a population or area as a whole; conduct interrupting educational services may constitute sabotage under s54(3)(c).
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1 December 1987 |
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Reported
Appellants’ murder convictions upheld on common-purpose liability; trial Judge right to protect legal privilege; some public-violence convictions set aside.
Criminal law – common purpose – murder – whether individual causal contribution required – fatal act of one participant can be imputed to others who actively associate and possess mens rea. Evidence – legal professional privilege – witness’s statement to attorney – trial Judge’s discretion to relax privilege requires sufficient particulars and perusal of statement; Barton (Crown Court) distinguished. Statutory offences – subversion (Internal Security Act s54(2)) – application of presumption in s69(5) and scope of paragraphs relied upon. Criminal procedure – duplicative convictions – where same conduct constitutes both subversion and public violence, conviction on both may be inappropriate.
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1 December 1987 |
| November 1987 |
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Whether intention (dolus) or negligence (culpa) is required for possession of prohibited publications under s 8(1)(d).
Publications Act s8(1)(d) — mens rea — whether dolus or culpa required; knowledge of unlawfulness (wederregtelikheidsbewussyn); objective reasonable‑person test for culpa; statutory purpose, scheme and practicability; costs order.
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30 November 1987 |
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Of die getuienis van ’n enkele medegevangene—sonder voldoende onafhanklike corroboration—volstaan om moordveroordelings te staaf.
Strafreg – medepligtigegetuienis – versigtigheidsreël vir getuienis van medepligtiges; corroboration required; bewyse van bloed, voorwerpe en posisionering van beskuldigdes as stawing; veiligheid van skuldigbevindinge en doodsvonnisse.
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30 November 1987 |
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Reported
A perennial public river is res publica and the public’s right to use its water for recreational canoeing exists irrespective of commercial navigability.
Public rivers – perennial flumen as res publica – public right to use water includes recreational boating and fishing – navigability for commercial shipping not required; Water Act s164bis does not extinguish common‑law public rights; Conservation Ordinance fishing controls do not empower landowner to prohibit canoeing; portage over land a factual issue.
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30 November 1987 |
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Reported
Whether the respondent's statutory military pension is deductible from his damages for personal injury.
Military pensions – deduction from delictual damages – statutory pension under Military Pensions Act not compensatory for loss of earnings; s 7(6) and Schedule indicate pension as solatium; collateral-source considerations; distinction from contractual/employment pensions (Dippenaar).
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30 November 1987 |
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Reported
Court finds fraud proven: intention to prejudice can be established by dolus eventualis; appeal dismissed.
Criminal law – Fraud – mens rea – whether intent to defraud requires intention to cause prejudice (direct or dolus eventualis) – lender induced by false representation about purpose of loan suffers prejudice where cash converted to diminished creditor rights – older authority (Hoosen/Motsieloa/Fram) criticised.
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30 November 1987 |
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Possession of a publication benefiting an unlawful organisation requires knowledge, not mere negligence, to convict under s56(1)(c).
Internal Security Act s56(1)(c) – meaning of "on behalf of" – construed as "for the benefit/in the interest of" (reconciling English and Afrikaans texts); possession of publications published or disseminated in the interest of an unlawful organisation; required mens rea – majority requires knowledge/dolus, not mere culpa; evidential and policy considerations in possession offences.
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30 November 1987 |
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A composite restoration-plus-lease agreement is not a "contract for the execution of works" requiring competitive tendering under s.35(1).
Local Government Ordinance s.35(1) — Contracts for execution of works — Meaning and scope; Composite agreements — Restoration works coupled with long-term lease and profit-sharing not purely contracts for execution of works; Tendering requirement — applies only where competitive tendering practicable; Proviso re "special case of necessity" — does not extend section to contracts inherently unsuitable for tendering.
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30 November 1987 |
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Reported
Conviction for culpable homicide cannot stand where death was not reasonably foreseeable from an unguarded pool outlet.
Criminal law – Culpable homicide – negligence – foreseeability – man in control of public swimming pool owes duty to ensure safety but conviction requires reasonable foresight of harm; ex post facto reasoning inadmissible to establish culpa.
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27 November 1987 |
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Council’s referral and prior correspondence satisfied fair-hearing requirements; Administrator validly sanctioned the rank cancellation.
Administrative law – local government – section 65 bis (Transvaal Local Government Ordinance) – cancellation of taxi rank – audi alteram partem – adequacy of written representations and disclosure of council memorandum – refusal of late further representations – validity of council resolutions and Administrator’s sanction.
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27 November 1987 |
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Whether correspondence/payments created a written variation or estoppel preventing cancellation; exceptio doli generalis failed.
Sale of land – multiple deeds of sale – requirement that variations be in writing (clause 15.2) – correspondence not proving written variation; surrounding circumstances insufficient to supply missing essential term. Contract – indulgence clause (clause 15.3) – indulgences/extensions do not necessarily create estoppel or waive contractual forfeiture rights. Procedure/contract notice – substantial compliance with written demand/forfeiture notice; agent/related company may give notice on seller's behalf where group administration and receipt of payments show representation. Equity – exceptio doli generalis – onus on party invoking it; mere forbearance and acceptance of payments not per se unconscionable to bar enforcement.
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27 November 1987 |
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Regulation 3(10) does not automatically bar referral for oral evidence or interim interdicts restraining police misconduct.
Emergency regulations — regulation 3(10) — access to detainees and official information; Motion proceedings — referral for oral evidence under Rule 6(5)(g) where material facts are disputed; Interim interdicts — grantable pending final determination even if operative during detention; State evidence — reg 3(10)(b) does not preclude State from placing medical records before court; Procedural directions — pre-hearing witness statements to expedite oral hearings.
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26 November 1987 |
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Appellate court found dolus eventualis and mitigating circumstances, set aside death sentences and substituted terms of imprisonment.
Criminal law – murder – form of intent – distinction between dolus directus and dolus eventualis – proper characterization of intent when a perpetrator sets fire knowing people are inside. Sentencing – mitigating circumstances – effect of provocation, group conduct and subjective belief on moral blameworthiness and appropriateness of death sentence. Appeal – misdirection on legal characterisation of intent and reconsideration of sentence by appellate court.
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26 November 1987 |
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The applicants' appeals against findings of no extenuating circumstances and death sentences are dismissed.
Criminal law – Sentencing – Extenuating circumstances – Assessment of youth, immaturity, intoxication, duress and influence as mitigation. Criminal law – Murder – Premeditation, motive and manner of commission relevant to moral blameworthiness. Appeal – Appellate intervention limited where trial court’s finding on extenuation is reasonable and free of misdirection. Principle clarified: atrocity of crime may be considered alongside accused’s personal circumstances; atrocity does not automatically preclude extenuation.
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26 November 1987 |
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Appellate court refuses to disturb trial court’s finding that no extenuating circumstances existed for the child’s murder.
Criminal law – Murder – Extenuating circumstances – Moral blameworthiness assessed per victim – Distinction permissible between killings in same incident; Appellate review – Deference to trial court’s findings unless vitiated by misdirection, irregularity or unreasonableness.
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26 November 1987 |
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Whether cross‑examination about a set‑aside guilty plea and waiver of legal privilege rendered convictions unfair.
Criminal law – admissibility of cross‑examination about a prior recognition of guilt set aside under s.57(7) – waiver of legal privilege by accused’s own disclosure – evaluation of single witness evidence with cautionary approach – medical corroboration of assault injuries – appellate review of brevity of trial court reasons.
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26 November 1987 |
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Appellant’s intoxication and anger over partner’s conduct did not mitigate deliberate murder of an innocent child; appeal dismissed.
Criminal law – murder – mitigating circumstances – burden on accused to establish on factual basis; intoxication and alleged provocation insufficient to mitigate killing of innocent third party.* Procedural – appeal against finding on mitigating circumstances and sentence.
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24 November 1987 |
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Reliable eyewitness identification sustained two murder convictions; no extenuating circumstances — appeal dismissed.
Criminal law – Murder – identification evidence – reliability of eyewitnesses who knew the accused and had opportunity to observe – convictions upheld. Criminal procedure – Alleged confession by third party – hearsay and inadmissible as exculpatory evidence when denied and uncorroborated. Criminal law – Alibi and credibility – alibi rejected; accused unsatisfactory witness. Sentencing – Extenuating circumstances – none established; death sentence maintained.
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23 November 1987 |
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First appellant liable under dolus eventualis for deaths during armed robbery; no extenuating circumstances, appeal dismissed.
Criminal law – Joint enterprise/party liability – Dolus eventualis – subjective foresight of death when participating in armed robbery where co-offender is armed; disassociation upon hearing shots not necessarily exonerating; prior unresisted offences not determinative of foreseeability. Sentencing – Extenuating circumstances – absence upheld; death sentences confirmed.
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23 November 1987 |
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Conflicting eyewitness accounts and unexplained missing weapons led to acquittal of two accused; first appellant's conviction and death sentence upheld.
Criminal law – murder in custody – evaluation of eyewitness evidence – material contradictions and invented evidence – missing weapons – admission to police officer – self-defence and extenuating circumstances; appeal and unsafe convictions.
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23 November 1987 |
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Appeal against trial court’s finding of no mitigating circumstances in brutal murder dismissed.
Criminal law – Murder – Absence of mitigating circumstances – Youth and illiteracy not necessarily mitigating where killing is brutal and for gain. Criminal law – Intoxication – Voluntary use of dagga/alcohol not mitigating where accused retained capacity and formed intent. Criminal law – Intent – Use of dangerous weapons and forceful blows supports finding of dolus directus. Sentencing – Death sentence upheld where no cumulative mitigating factors exist.
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17 November 1987 |
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Reported
A sine liberis clause raises a rebuttable presumption of a tacit fideicommissum for the testator's descendants.
Succession — sine liberis decesserit clause coupled with conditional fideicommissum — presumption of tacit fideicommissum in favour of liberi where liberi are descendants of testator — rebuttable by indicia to contrary; distinction between direct descendants and collaterals; duties of curator‑ad‑litem.
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12 November 1987 |
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Reported
Whether a liquor licence obtained pursuant to a lease is a "right under the lease" binding the trustee under s.37(5) of the Insolvency Act.
Insolvency — s.37(5) Insolvency Act 24 of 1936 — meaning of "right under the lease" — whether a liquor licence obtained pursuant to lease is such a right — lease of business and goodwill — liquor licence vests in trustee but may be subject to lease prohibition — trustee bound to retransfer where prohibition exists; alternatively, licence realizable for creditors (dissent). Liquor law — licence as statutory personal privilege — interplay with contractual obligations.
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10 November 1987 |
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The applicant's murder conviction and death sentence set aside where evidence failed to prove guilt beyond reasonable doubt.
Criminal law – Murder – Sufficiency of evidence – Appellate review where State cannot support conviction – Identical evidence as to co-accused – Conviction and sentence set aside.
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9 November 1987 |
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Reported
Whether 'lawful children' includes grandchildren by representation; court held it does, splitting the trust share equally.
Civil procedure – res judicata and issue estoppel – informal 'ruling' not part of court order cannot operate as res judicata or issue estoppel. Wills and succession – construction of joint will – meaning of 'lawful children' – grandchildren may succeed by representation where will indicia rebut presumption limiting 'children' to first-degree. Trusts – testamentary trust corpus – distribution where beneficiary predeceases testator – representation and application of provisos. Costs – costs (including two counsel and curators ad litem) payable from estate on attorney-and-client scale.
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5 November 1987 |
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Reported
Appellate court upheld murder conviction relying on a credible single witness and found no extenuating circumstances.
Criminal law – Murder – Conviction based on single eyewitness evidence – Credibility assessment and appellate standard of review – Extenuating circumstances and mitigation – Importance of totality of evidence and trial court’s reasons for accepting or rejecting testimony.
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1 November 1987 |
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Reported
Whether an appeal under s.21A permits a full rehearing by the Industrial Court and power to order representation.
Labour law – Industrial councils – s.21A Labour Relations Act – meaning of "appeal" – appeal in wide sense permitting de novo rehearing by Industrial Court – Industrial Court empowered to make effective orders on admission (including representation) – "deemed" refusal and nature of decision a quo.
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1 November 1987 |
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Sentence for extensive, repeated bank thefts upheld; provisional psychiatric diagnosis insufficient to mitigate sentence.
Criminal law – Sentencing – Theft from bank clients – Extensive, repeated and calculated misappropriation over long period – Previous conviction – Alleged psychological disorder (provisional psychiatric report/kleptomania) – Weight of remorse, restitution and cooperation – Appellate review of sentence.
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1 November 1987 |
| September 1987 |
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Reported
Statutory interest on expropriation is payable on final compensation, and mora runs from that payment at the prescribed rate.
Expropriation — statutory interest under s 12(3) — runs from date of possession on outstanding compensation and is payable when final compensation is paid. Interim payment under s 11(1) — provisional; does not trigger statutory interest payable at that time. Mora — arises ex re when time for performance is fixed; no demand required. Prescribed Rate of Interest Act 55 of 1975 — rate fixed as at time interest begins to run; court may depart for special circumstances. Interest on interest — permissible in principle as mora on unpaid interest.
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30 September 1987 |
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Reported
Incomplete post‑option clauses in prospecting contracts are severable; the remainder of the contracts remain valid.
Prospecting contracts – interpretation and divisibility – unfinished post‑option clauses (7(a),(d),(e)) severable – incomplete post‑option terms do not void entire contract – parties’ intention and separable prestations decisive.
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30 September 1987 |
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Court upholds medical and addiction-related damages, grants past earnings award, and reduces future earning-capacity award.
Procedure – cross-appeal where no leave granted by trial court – petition and waiver; Causation – addiction to prescribed analgesic held causally connected to injury; novus actus interveniens not established; thin-skull rule applies; Evidence – preference for orthopaedic clinical opinion over radiological interpretation on prognosis; Quantum – assessment of past and future medical expenses, past loss of earnings proved by cheques, and loss of earning capacity re-assessed on claimant’s actual occupation.
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30 September 1987 |
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Appellants' death sentences for murder upheld; discretionary death sentences for robbery set aside and replaced by 15-year terms.
Criminal law – Murder (dolus eventualis) – Extenuating circumstances – Not established where planned, violent break-in and close-to-direct intent. Sentencing – Discretionary death sentence – Trial judge must exclude separate homicide when sentencing for robbery and consider long-term imprisonment as alternative; failure to do so is material misdirection warranting interference (S v Pieters applied).
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30 September 1987 |
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Appellant's intoxication and lack‑of‑capacity defences rejected; contemporaneous notes and conduct support intentional murder; appeal dismissed.
Criminal law – murder – defences of intoxication, involuntariness and lack of criminal capacity – probative value of defendant’s contemporaneous notes and post‑offence conduct – expert opinion loses force when its factual foundation is disproved.
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30 September 1987 |
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Appellate court upheld five-year rape sentence; interference only warranted if trial court misused sentencing discretion.
Criminal law – Rape – Sentence – Appellate interference with discretionary sentencing – Test in S v Pieters – Compensation offer not a ground to suspend sentence.
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30 September 1987 |
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Reported
Appellant suffered temporary non‑pathological disintegration; convictions on adult victims upheld, child‑count acquitted; sentences reduced and altered.
Criminal law – non‑pathological temporary incapacity/total personality disintegration – distinction between statutory insanity and non‑pathological incapacity – role of psychiatric evidence and objective facts in determining criminal responsibility; proof of dolus eventualis in attempted murder; sentencing where diminished responsibility exists.
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30 September 1987 |
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Reported
Section 86(1) permits corrective amendments but not substitution of one offence for another (no new charge by amendment).
Criminal procedure – amendment of indictment – s86(1) Criminal Procedure Act – scope of “amend” – corrective amendments (omission/discrepancy/insertion/deletion) allowed; substitution of one offence for another not permitted; proposed substitution creating new charge invalid.
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29 September 1987 |
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Reported
An option notice requiring delivery to the owner must be personally given to the owner or an authorized agent; leaving it at the premises is insufficient.
Contract — Option to purchase — Clause requiring "delivery of a written notice to the owner" — meaning of delivery — domicilium citandi et executandi ordinarily for service of process only — delivery must be to owner or authorized agent — delivery to employee without proof of authority insufficient — constructive receipt/fictitious fulfillment and tacit waiver not available absent proof.
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29 September 1987 |
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Reported
Legislature validly excised Moutse from Lebowa; the applicant's challenge dismissed.
Territorial amendments – interpretation of proclamation and statutes – effect of section 16(1983) and section 9(1985) on substituted schedule to Proclamation R.156 of 1971; punctuation/parenthesis irrelevant to legislative intent; area of self-governing territory defined by schedule both before and after self-governing status; excision of district of Moutse upheld.
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29 September 1987 |
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Reported
Whether incorrect police-supplied insurer details constituted "special circumstances" excusing prescription of the respondent's claim.
Compulsory Motor Vehicle Insurance Act s24(2)(a) – prescription – "special circumstances" means unusual or unexpected circumstances – negligent conduct excluded only if culpable – reliance on police accident report/tokens – reasonableness of attorney's conduct.
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29 September 1987 |
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An attorney's negligent reliance on erroneous police insurer information precluded relief under section 24(2)(a)(i).
Compulsory Motor Vehicle Insurance Act – s 24(2)(a)(i) – leave to serve MVA 13 after prescription – "special circumstances" excludes neglect or ignorance – failure due to attorney's negligence defeats application. Standard of care – attorney acting for third party – must exhibit reasonable care of a prudent practitioner; higher standard than lay claimant. Verification – reliance on police accident report identifying insurer is not sufficient; simple steps (contact named insurer; demand declaration under s 20(2)) should be taken.
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29 September 1987 |
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Reported
Relief from prescription under s24(2)(a)(ii) denied where firm’s negligent failure to supervise, not ‘‘special circumstances’’, caused the delay.
Compulsory Motor Vehicle Insurance Act s24(2)(a)(ii) – prescription – "special circumstances" meaning – unusual and unexpected events – negligence, omission or failure of attorney/firm to supervise diary system cannot constitute special circumstances – relief to serve summons out of time refused where firm’s negligence caused prescription.
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29 September 1987 |
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Reported
Rates paid on a valuation roll are not reclaimable by condictio indebiti, but interim rectification by the Director triggers section 91(1)(b) refunds.
Valuation and rates – Valuation Ordinance s 63(1) – Interim valuation by Director equals rectification of an error – Municipal Ordinance s 91(1)(b) – refund of rates assessed on altered valuations; condictio indebiti not available where rates were payable on valuation roll; procedural: condonation for waiver of security, Director’s consent obviates joinder.
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29 September 1987 |
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Appellate court upheld 12-year murder sentence, rejecting intoxication defence and finding provocation only an extenuating factor.
Criminal law – Murder – physical acts causing death by multiple head injuries and strangulation – protracted assault. Criminal capacity – alleged intoxication by Nitrazepan (Mogadon) and other medications – burden and evaluation of evidence. Provocation – effect as extenuating circumstances reducing moral blameworthiness but not negating criminal liability. Sentence – appellate interference limited; no misdirection or shocking disparity found.
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29 September 1987 |
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Appeal allowed: investigative and evidential deficiencies and inconsistent eyewitness testimony created reasonable doubt, so murder conviction was set aside.
Criminal law – murder conviction – safety of conviction – reliability of eyewitness evidence and importance of consistent testimony. Criminal procedure – duty to disclose – adequacy of summary of essential facts (s.144(3)(a)) and police statements. Evidence – corroboration and weight of secondary witness evidence. Investigative procedure – need for scene plans/photographs and police witness evidence. Trial conduct – trial judge’s questioning and impact on the clarity and fairness of the record.
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29 September 1987 |
