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Citation
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Judgment date
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| December 1988 |
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Reported
A supplier's reservation of title upheld; employer failed to prove estoppel or that architect certificates transferred ownership.
Sale/retention of title – reservation of ownership until payment – effective where proved and not wholly contradicted by written documents. Evidence – parol evidence/integration rule – oral amendment admissible where parties did not intend written documents to be entire agreement. Estoppel – requirements of clear representation, identifiable reliance by the party, and consequent prejudice; onus on party pleading estoppel. Building contracts – architect's certificates/contract clause (clause 12) not effective to transfer ownership unless evidential and procedural requisites proven.
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1 December 1988 |
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Reported
A non‑trading association may sue for defamation when defamatory statements are calculated to cause it financial prejudice.
Defamation — legal persons — trading corporations may sue for injury to business reputation without proof of special damage; non‑trading corporations may sue where defamatory matter is calculated to cause financial prejudice or interfere with public support; public policy may limit claims.
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1 December 1988 |
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Reported
An interdict can restrain a state-created nuisance where statutory authority does not inevitably justify interference with private property rights.
Administrative law; nuisance – public nuisance created by state-settled persons on trust land; interdict against statutory bodies; statutory authority defence under sec 10 Development Trust and Land Act; onus and African Realty test; practical abatement (fence, policing).
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1 December 1988 |
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Appellant convicted for murder on common purpose; duress claim rejected and appeal dismissed.
Criminal law – murder – common purpose versus accessory – evidential weight of s.122(4) confession – duress/dwang as mitigating factor – circumstantial evidence establishing participation.
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1 December 1988 |
| November 1988 |
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Owner's consent (express or implied) precludes municipal demolition under s 3B(1)(a); rebuilding after fire is not a new 'erection'.
Prevention of Illegal Squatting Act s 3B(1)(a) – demolition without court order; meaning of 'erected or occupied' (disjunctive); consent may be express or implied and given before, during or after erection; 'erect' excludes rebuilding after destruction; s 3B(4)(a) – onus to prove right to occupy; statutory demolition powers to be narrowly construed.
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30 November 1988 |
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A prohibition under reg 7(1)(bA) confers discretionary power on the Commissioner, reviewable only on traditional Shidiack grounds.
State of emergency regulations – reg 7(1)(bA) – prohibition of gatherings – discretionary power vested in Commissioner – not objectively justiciable by separate jurisdictional fact; review limited to Shidiack grounds (mala fides, irrelevant considerations, gross unreasonableness) – onus and evidentiary requirements; costs and limits on recoverable heads of argument costs.
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30 November 1988 |
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Condonation for late, incomplete appeal record refused due to inordinate unexplained delay and poor prospects of success.
Civil procedure — condonation for late filing of appeal record — inordinate and unexplained delay — reconstruction of lost record — missing photographic exhibits — prospects of success on appeal — refusal of condonation; costs including appeal costs awarded.
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30 November 1988 |
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An inadmissible written confession did not vitiate conviction where independent eyewitness and medical evidence proved guilt.
Criminal law – confessions – meaning and scope of s.217; oral admission vs written confession; admissibility and effect of irregular admission; s.309(3) failure of justice test; evaluation of eyewitness and medical evidence in rebutting self-defence.
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30 November 1988 |
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Manslaughter conviction upheld; death penalty for rape set aside for improper exercise of sentencing discretion, substituted with imprisonment.
Criminal law – conviction for culpable manslaughter – medical and circumstantial evidence of repeated blunt-force assault versus accidental fall – causation established. Sentencing – death penalty for rape – necessity to evaluate prospects of rehabilitation and proper exercise of discretion – substitution of imprisonment where discretion misapplied.
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30 November 1988 |
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Whether new kraft paper falls within the "used packing material" exemption and whether mens rea was proven.
Road Transportation Act 74 of 1977 – statutory exemption for "used packing material" – meaning of "used" – new kraft paper not exempt; mens rea (culpa) – carrier’s managerial negligence establishes requisite fault for s31(1)(b); distinguishing Reids Transport authority.
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30 November 1988 |
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Ejectment under s 65 unlawful where rental for approved dwellings was not fixed as required by s 61.
Housing law – section 65 of Housing Act 4 of 1966 – meaning of "the rental payable" – approved dwellings – rentals for approved dwellings must be fixed under s 61(b) (Administrator on recommendation of Commission) – general statutory or by-law determinations do not suffice – ejectment under s 65(b) unlawful where no lawful rental determination.
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30 November 1988 |
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Reported
Condonation for late appeal refused where overwhelming circumstantial evidence left no reasonable prospect of success.
Criminal law – dealing in dependence‑producing medicine (Mandrax) – circumstantial evidence sufficiency – presence on premises, identification by local name and handing over of package justify inference of supplier. Procedural law – condonation for late filing of appeal grounds – refuse where no reasonable prospects of success on appeal.
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30 November 1988 |
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Complainant identification and the accused’s possession of stolen keys supported conviction; appeal against conviction and sentence dismissed.
Criminal law – Identification evidence – reliability of complainants’ identifications; accused's own admissions and possession of stolen property as evidence of participation – appellate review of credibility findings; sentence review.
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29 November 1988 |
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Where an accused’s explanation under s112(1)(b) permits a reasonable innocent inference, the court must invoke s113 and require prosecution.
Criminal procedure – section 112(1)(b) Criminal Procedure Act 51/1977 – adequacy of accused’s explanation when pleading guilty – whether magistrate can be satisfied of guilt where explanation consistent with acquisition only; Criminal procedure – section 113 – duty to record plea of not guilty and require prosecution where doubt exists; Drugs Act – dealing vs acquisition; section 312(1) – remedial remittal where section 113 should have been applied.
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29 November 1988 |
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Reported
Where an accused’s age at the offence is doubtful, the doubt is resolved for the accused and death sentences may be replaced by imprisonment.
Criminal law – age determination for sentencing – reliability of radiological and dental age estimates – appearance and demeanour unreliable guides – where doubt exists as to whether accused was under 18 at time of offence, resolve in favorem vitae; appellate substitution of sentence.
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29 November 1988 |
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Appellant failed to prove extenuating circumstances for a premeditated murder; appeal against death sentence dismissed.
Criminal law – murder – extenuating circumstances – appellate review of trial court finding on extenuation; standard: appeal court will not interfere absent misdirection, irregularity or conclusion no reasonable court could reach; motive and surrounding labour unrest may be relevant but must be proved on a balance of probabilities; union involvement and coercion must be evidenced to mitigate moral guilt.
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29 November 1988 |
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Reported
Section 20 bis makes a broker statutorily obliged to pay an insurer’s share of premiums; insured’s instruction cannot defeat that right.
Insurance — Section 20 bis of Insurance Act — "on behalf of" construed widely as "for the benefit of" — statutory obligation on broker who elected under s20bis and furnished security — insured's instruction to broker cannot defeat statute; liquidation — liquidators’ right to claim insurer’s share of premium from broker.
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29 November 1988 |
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Whether extra‑curial statements, without interpreter corroboration, can sustain murder convictions.
Criminal law – extrajudicial statements – s 209 Criminal Procedure Act – requirement of material corroboration – admissibility of interview evidence given through an interpreter – hearsay; re‑opening State case after close – judicial discretion; nexus between confession and victim's death; sentencing adjustments on appeal.
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29 November 1988 |
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Reported
Applicant's appeal allowed and conviction and sentence set aside, following the Court's earlier decision.
Criminal appeal — reliance on prior appellate decision — appeal allowed; conviction and sentence set aside.
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29 November 1988 |
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Insufficient proof of foresight for murder; death sentence for robbery was inappropriate and replaced by three years’ imprisonment.
Criminal law — Accomplice liability and joint action — Requirement that State prove foresight/reconciliation (dolus eventualis) for murder; evidential sufficiency of eyewitness account. Sentencing — Improper consideration of collateral consequences (victim’s death) when fixing punishment for robbery; death penalty inappropriate where misapplied. Sentence adjustment — assessment of appropriate term and credit for time in custody (s 282 issue).
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29 November 1988 |
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Reported
Permit substitution exceeded regulatory powers; purported permit was ultra vires and declared null, appeal allowed with costs.
Administrative law – Statutory permits – permits under Egg Production regulations are personal (delectus personae) and not freely transferable. Interpretation of regulations 7, 8 and 9 – "modification" does not permit substitution of permit-holder; transfer/new permit beyond head official's power where regulation 9 prohibited transfer. Ultra vires act – permit issued in breach of statutory prohibition is nullity. Costs – public officer may be ordered to pay costs where official acts improperly or partisan in litigation.
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29 November 1988 |
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Most sentences for public violence upheld; two lesser participants had part of their sentences suspended.
Criminal law – public violence – appeal against sentence – appellate interference limited to irregularity/misdirection or unreasonableness – consideration of individual roles, youth and prior convictions – suspension of part of sentence for lesser participants.
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28 November 1988 |
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A control board may lawfully refuse quality-premium payments where minister‑approved scheme conditions are not met.
Marketing schemes – special levies – money raised by special levy paid into special fund is property of control board and must be dealt with in manner approved by Minister (s 26(2)).
Quality premiums – payment only for milk complying with minister-approved quality standards – Board entitled to refuse payments for non-compliant milk.
Ultra vires/penalty – withholding of premiums under approved scheme not ultra vires and not unlawful penalty.
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28 November 1988 |
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Reported
Exemption under s.5(1)(c) applies to the physical portion of an electricity servitude used to reticulate within the municipality.
Rating law – exemption under s.5(1)(c) – 'to the extent that such property or portion thereof is so used' refers to the physical portion of land/servitude used to reticulate electricity to the municipality; not to proportion of electricity conveyed; s.9(5)/(6) valuation provisions do not alter substantive exemption; servitudes may be partly exempt.
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24 November 1988 |
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Appellate court reduced sentence, giving mitigating weight to appellant's on-arrest wounding and suspending part of term.
Sentencing — appeal against sentence — whether sentence is disturbingly inappropriate — weight to be given to injuries sustained by accused at or before arrest — partial suspension of term appropriate to achieve objectives of punishment.
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24 November 1988 |
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Reported
A treatable personality disorder can justify conditional suspension instead of striking the attorney off the roll.
Attorneys Act s22(1) – fitness to practise – striking off v suspension – conditional (non‑temporal) suspension permissible – psychiatric evidence of treatable personality disorder may favour suspension – appellate interference with discretion only for capriciousness, wrong principle, bias or lack of substantial reasons.
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23 November 1988 |
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Whether each appellant was party to a pre-arranged killing/robbery and whether extenuating circumstances justified avoiding death sentence.
Criminal law – Murder and robbery – liability as party to a pre-arranged plan – compulsion/duress defence; Extenuation – epilepsy, youth and background considered for death sentence; Admissibility and reliability of extra‑curial statements and pointing‑out evidence; Application to adduce fresh evidence on appeal – requirements and refusal.
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22 November 1988 |
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Appeal allowed where reasonable doubt remained that a death sentence was imposed at the meeting over which the appellant presided.
Criminal law – murder – liability for killing carried out pursuant to a decision at a vigilante ‘comrades’ meeting; presiding officer’s liability; extra‑curial statements – weighing exculpatory portions; evaluation of witness inconsistencies and probabilities; appellate review of sufficiency of proof.
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17 November 1988 |
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Reported
Whether members’ unanimous consent under s.226(2) can be given by subsequent ratification and whether such ratification occurred here.
Companies Act s.226 – prohibition on provision of security for obligations of related companies – consent of all members required for exemption – effect of subsequent ratification; ratification may validate prior act if intention and knowledge present; directors’ approval of financial statements (s.298) and general member consent not necessarily s.226(2) consent.
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11 November 1988 |
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Age uncertainty must be resolved for the accused and can preclude imposition of the death penalty.
Criminal law – Murder – sentencing – s.277(2) of Act 51/1977 – uncertainty as to accused’s age must be resolved in favour of accused; may preclude imposition of death penalty. Criminal procedure – confessions recanted at trial – credibility and corroboration. Robbery – circumstantial evidence – missing property properly attributable to convicted accused. Sentencing procedure – death sentence should be last act; improper sequencing criticised.
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11 November 1988 |
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Whether the Administrator‑General validly exercised plenary power to impose night‑time curfews under Proclamation AG 9, and whether related orders were intra vires.
Constitutional/administrative law – delegation of legislative power – s 38 South West Africa Constitution Act – State President’s plenary powers – Administrator‑General’s powers under Proclamation 181 of 1977 are plenary, subject to statutory limits. Security measures – validity of curfew and night‑movement prohibitions – s 3(1)(a)(v) & (vi) Proclamation AG 9 of 1977 (as amended) intra vires; Orders AG 26 of 1978 and AG 50 of 1979 valid. Pleading challenges – vagueness/unreasonableness of enabling provisions rejected.
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8 November 1988 |
| September 1988 |
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Reported
Appellate court set aside corporal punishment and varied imprisonment, stressing youth and improper coupling of lijfstraf with long terms.
Criminal law – sentencing – gang rape convictions – appropriateness of corporal punishment (lyfstraf) coupled with long imprisonment – youth and influence of older co‑accused as mitigating factors – requirement for probation report not absolute – appellate review of sentence and limits on considering post-sentence events.
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30 September 1988 |
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Reported
An abridged pictorial book reproduced a substantial part of the respondent's work and infringed copyright.
Copyright — literary works — reproduction of substantial part — objective similarity and causal connection; selection, compilation and presentation of factual material can be protected; co‑authorship and historical subject matter do not automatically permit substantial copying.
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30 September 1988 |
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Reported
Appeal dismissed except reduction of nine‑year fraud sentence to eight years; sentences otherwise upheld.
Criminal law—Fraud and theft involving double‑discounting and misapplication of trust funds; abuse of professional position; sentencing—aggravating features, form of concurrent sentences and competence under s.280(2); appellate reduction of sentence.
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30 September 1988 |
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Reported
The appellants' pictorial abridgement reproduced a substantial part of the respondent's copyrighted book, constituting infringement.
Copyright — literary works — reproduction of substantial part — objective similarity and causal connection required; protection extends beyond mere facts to selection, arrangement and expressive presentation; part-authorship and referential language do not permit appropriation after assignment.
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30 September 1988 |
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Reported
Binnebring-sake: SA reg beskou diefstal as voortdurende misdryf, maar aanslepende konsolidasie van aanklagte mag nie nuwe aanklagte skep nie.
Strafproses – jurisdiksie – "binnebring" van gesteelde goed – diefstal as voortdurende misdryf; Bewys van vreemde regsposisie; Wysiging van klagstate – art. 86(1) – grens tussen wysiging en vervanging; Ongespesifiseerde skuldigbevindinge; Gemeenskaplike oogmerk en aanspreeklikheid.
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30 September 1988 |
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Use of "Hollywood Curl" did not infringe registered marks but constituted passing off due to respondent's reputation in "Hollywood".
Trade marks – Infringement under s 44(1)(a) – visual and conceptual comparison; disclaimer bars claim to exclusive use of disclaimed element – "series" of marks principle not to be extended in infringement to include unregistered marks. Passing off – reputation in a name ("Hollywood") across cosmetics – likelihood of confusion where defendant uses same dominant element for related goods. Evidence – pure hearsay excluded; third‑party statements admissible to show state of mind/confusion.
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30 September 1988 |
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Reported
The appellant’s youth and alcohol-induced irrationality constituted extenuating circumstances, making death sentences inappropriate.
Criminal law – Murder and attempted murder – evidence of eyewitnesses and medical evidence supporting inference of single assailant – appellant’s denial rejected; Sentencing – extenuating circumstances – youth (19 years) and alcohol-induced irrationality may reduce moral blameworthiness; trial judge’s misdirection on extenuation warrants substituting death sentences with lengthy determinate imprisonment.
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30 September 1988 |
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Reported
Single credible eyewitness and attendant circumstances established appellants’ joint intent in a gang-related murder; appeal dismissed.
Criminal law – murder; evidence of single witness; common purpose/joint intent; gang-related homicide; unlawful possession of firearm and ammunition; sentencing — death penalty.
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30 September 1988 |
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A delegated extension under s 46(9)(a)(i) of the Labour Relations Act must be fixed before the 30-day period expires; post-expiry extensions are invalid.
Labour Relations Act s 46(9)(a)(i) — interpretation of power to determine "further period" for settlement — where statute omits express words permitting post-expiry fixing, further period must be determined before expiry; deliberate change of legislative wording indicates different intention; retrospective extension by delegate held invalid; effect on industrial council's jurisdiction to settle dispute.
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30 September 1988 |
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Whether a local authority was bound by a committee’s expanded consultancy instruction and liable under Form 1 tariffs.
Administrative bodies – authority of committees and ratification by board – validity of agreement concluded by sub‑committee. Contract law – implied terms (stillswyende beding) – when Form 1 tariffs apply to expanded consultancy instructions. Quantum – application of Form 1 Model Agreement (percentage and time bases) – valuation of ‘‘value of the works’’. Pleadings and procedure – late amendments and reopening of trial – prejudice and proper exercise of discretion. Prescription – alternative acknowledgements and time‑barred claims.
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30 September 1988 |
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Reported
Section 10(1)(a) presumption applies only if the State proves the accused knew he had control of dagga; conviction set aside.
Criminal law – Drugs – s10(1)(a) presumption (possession >115g presumed dealing) – requires proof that accused knowingly had control of dagga (animus directed to dagga). Distinction between presumptions in ss 10(1)(a), (d) and (e) – differing factual prerequisites and burden-shifting effects. Burden of proof – limitation on shifting presumption of innocence; restrictive construction of s10(1)(a). Appeal – conviction set aside where State failed to prove knowledge beyond reasonable doubt.
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29 September 1988 |
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Reported
A lessee not in occupation must plead dolus, including consciousness of unlawfulness, to sustain a delict for interference with lease rights.
Delict — interference with contractual rights — requirement to plead dolus (intent and consciousness of unlawfulness) for delictual claim; lessee not in occupation and Aquilian remedy; exception for vagueness and failure to disclose cause of action.
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29 September 1988 |
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Detention under emergency regulation lawful where arresting officer genuinely believed detention necessary; mala fides not proven.
Public Safety Act regulations – regulation 3(1) – detention without warrant – subjective bona fide opinion of arresting officer; mala fides onus on detainee; failure to consider alternative statutory measures (s.46) not determinative of bad faith; lawfulness of detention on averred intelligence about organisation.
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29 September 1988 |
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Appellate court finds youth, intoxication and background constituted extenuating circumstances and replaces death sentences with imprisonment.
Criminal law – murder and robbery – extenuating circumstances – youth, intoxication and personal background – admissibility and role of further evidence under s 316(3) – sentencing: appropriateness of death penalty.
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29 September 1988 |
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Spoliation protects quasi‑possession of incorporeal rights; proof of the underlying servitude is not a precondition to restoration.
Property law – mandament van spolie – possessory remedy – restoration of status quo ante – protection of quasi‑possession of incorporeal rights (servitudes). Evidence – whether proof of substantive servitude is required in spoliation proceedings (no). Civil procedure – discretion and delay (laches) in granting spoliation orders.
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29 September 1988 |
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Reported
Ministerial extension under emergency regulations cannot cure an arrest where the detainee was not timely informed of the reason for arrest.
Emergency regulations – Public Safety Act reg 3 – three-stage regime (arrest by member of Force, detention under written order, ministerial extension) – Minister’s reg 3(3) order cannot validate an arrest/detention not within reg 3(1) – detainee must be informed of reason for arrest as soon as reasonably possible – late information while still in custody may cure unlawfulness, but notification after transfer/by outsider does not.
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29 September 1988 |
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29 September 1988 |
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Reported
The respondents were entitled to restitution after the appellant unjustifiably refused a valid bank guarantee for transfer.
Contract interpretation – "take over bond" construed as assuming bond subject to creditor consent, not merely to pay amounts. Sale of immovable property – bank guarantee tendered to seller/agent is proper; purchaser not compelled to follow seller's instruction to pay a third party absent contractual provision. Clause providing cancellation and restitution – requirements met where failure to obtain transfer occurred through no fault of purchaser and seller validly elected cancellation. Specific performance/impossibility – party alleging impossibility bears burden of proof; absent proof court may order ad factum praestandum.
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29 September 1988 |
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A lessee not in occupation must plead dolus, including consciousness of unlawfulness, to claim delictual damages for wrongful occupation.
Delict — interference with contractual rights — requirement to plead dolus (intent and consciousness of unlawfulness) to sustain claim under extended lex Aquilia; insufficiency of alleging mere lack of right and knowledge of lease; necessity to plead possession/occupation where relevant; exceptions for vagueness and failure to allege essential averments.
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29 September 1988 |
