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Citation
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Judgment date
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| December 1989 |
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Reported
Judge erred in removing assessor on recusal grounds under s147(1); trial was before improperly constituted court, convictions set aside.
Criminal procedure — assessors — s 147(1) Criminal Procedure Act 51 of 1977 — "becomes unable to act" construed as actual incapacity arising during trial, not recusal/disqualification — parties entitled to be heard before tribunal composition altered — conviction set aside where trial continued before improperly constituted court.
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15 December 1989 |
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A sale at auction vests ownership in the purchaser on delivery, defeating the applicant’s later reservation of title.
Auction law – formation of contract at fall of hammer; conditions of sale – credit sale; delivery and passing of ownership on delivery; auctioneer’s custom to pay sellers does not affect dominium; reservation of ownership in subsequent agreement ineffective to vest title.
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5 December 1989 |
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Reported
Challenge to emergency media regulation rejected: delegation, notice and procedure lawful; appeal dismissed with costs.
Public Safety Act – emergency regulations – reg 7A – scope and validity; retrospective effect and s 3(2)(b) proviso; delegation and sub-delegation to Minister; administrative/quasi-judicial versus legislative powers; appointment of censor; procedural fairness – adequacy of notice and opportunity to make representations; ouster clause (s 5B) and vagueness challenges.
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1 December 1989 |
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Reported
A South African court may recognise a foreign liquidator to enable essential enquiries and protect creditors' interests.
Private international insolvency – recognition of foreign liquidator – discretion based on comity and convenience; scope includes enabling enquiries essential to liquidation
Requirement for recognition before foreign representative may deal with local assets or pursue claims in South African courts
Recognition may be granted even where no local assets are yet identified if enquiry is ancillary to recovery and creditor interests
Court a quo erred in refusing to exercise discretion to grant recognition
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1 December 1989 |
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Appellate court finds no procedural irregularity in psychiatric referral and upholds rejection of extenuation; appeal dismissed.
Criminal procedure – s 78(2) and s 79(1)(b)(iii) – referral for psychiatric observation – duty to inform accused of right to appoint own psychiatrist; transcript silence no adverse inference absent positive evidence; psychopathy not necessarily diminished responsibility; evaluation of extenuating circumstances; appeal dismissed.
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1 December 1989 |
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Death sentence set aside where no distinct aggravating factors justified harsher punishment than for related murder conviction.
Sentencing — exercise of discretion — death penalty — disparate sentences for closely related offences — mitigating factor of youth — aggravation by prior convictions and victim’s vulnerability — where no distinct aggravating factor justifies death, death sentence set aside.
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1 December 1989 |
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Whether a late, substantive amendment to plead a company compromise defence may be allowed without admissible evidence explaining the delay.
Civil procedure – amendment of plea – substantive amendment sought at commencement of trial after long delay – application unsupported by affidavits or admissible evidence – discretion misapplied; amendment should be dismissed with costs. Company law – effect of s 311 compromise – raised as defence by amended plea
Estoppel – pleaded as response to compromise defence – unnecessary to decide once amendment set aside
Costs – limitation of two counsel fees; successful appeal entitling appellant to costs
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1 December 1989 |
| November 1989 |
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Reported
Murder conviction upheld; death sentence set aside for youth and mitigating circumstances and replaced by 12 years imprisonment.
Criminal law – Murder – mens rea: dolus eventualis established where accused subjectively foresaw risk of death – self-defence rejected; sentencing – youth and immaturity as mitigating factors – death sentence inappropriate and substituted by lengthy imprisonment; credibility assessment – State witness corroborated by injuries.
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30 November 1989 |
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Appeal allowed: confession admissible; rape convictions set aside; murder reduced to culpable homicide with ten‑year sentences.
Criminal law – admissibility of confession – voluntariness and assessment of competing accounts
Evidence – credibility of accused – effect of proven falsehoods on inferences and burden of proof. Sexual offences – rape – whether consent or belief in consent excluded beyond reasonable doubt where victim may have been impaired
Homicide – murder vs culpable homicide – proof of dolus eventualis and requirement of subjective foresight
Sentence – substitution of convictions and adjustment of sentences on appeal
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30 November 1989 |
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Court may grant civil interdict to stay execution pending a section 327 petition if application is bona fide and not abusive.
Criminal procedure – stay of execution – section 327 petition to State President – court may grant interdictual stay on civil-law grounds to protect right to have petition considered; requirements for interdict; bona fide test; appellate jurisdiction to hear appeal against refusal.
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30 November 1989 |
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Condonation for late appeal, record and security refused due to gross attorney negligence and inadequate explanation.
Civil procedure – Condonation of late noting of appeal, late lodging of record and late furnishing of security – requirement of full and satisfactory explanation – attorney negligence and client responsibility – prospects of success not decisive where non‑compliance is flagrant – interest in finality of judgment.
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30 November 1989 |
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Reported
State organs that participated in a combined dispossession can be ordered in mandament van spolie even if they did not obtain possession.
Mandament van spolie – relief against co-spoliators – state organs who participated in dispossession can be ordered to restore possession
Spoliation – no requirement that the spoliator must have acquired possession for mandament to lie
Spoliation – transportation orders as part of mandament (possible in principle) but not presumed; operative order controls
Interpretation – reasons for judgment and operative order must be read together; the order’s terms are decisive
Impossibility – lex non cogit ad impossibilia considered; prohibitory spoliation orders not precluded by claimed inability to perform
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30 November 1989 |
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Whether a ministerial toll determination must specify fixed amounts or may prescribe maximum tariffs; court split, appeal dismissed.
National Roads Act s 9(3) — "alternative road" construed purposively as an alternative route; s 6(3)(a) — Commission may contract out construction, toll operation and collection; delegation agreements valid as contractual arrangements subject to statutory accounting; s 9(4)(a) — whether Minister must fix specific toll amounts or may publish maxima (court split).
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29 November 1989 |
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A sanctioned compromise does not allow a receiver to invoke s29 remedies for pre‑scheme dispositions unless claims existed at liquidation.
Companies law – scheme of arrangement (s 311) – construction of sanctioned compromise – whether receiver may invoke ss 26, 29–32 Insolvency Act; Insolvency law – impeachable transactions – statutory prerequisite of sequestration/winding‑up; Contract/compromise – binding effect limited to claims existing at provisional liquidation/fixed date; Public policy – limits on transference of liquidator’s statutory rights.
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29 November 1989 |
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Single eyewitness credibility upheld; appellant's version implausible; no extenuating circumstances; appeal dismissed.
Criminal law – murder – single eyewitness testimony – credibility assessment; contradictions in police statements; improbability of accused's version; extenuating circumstances – provocation, intoxication, spontaneity; dolus directus v. dolus eventualis; sentence: death upheld.
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29 November 1989 |
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Reported
A tacit term cannot make the applicant guarantor of letter-of-credit compliance; a qualification may relieve the agent of liability.
Contracts – Tacit terms (implied by parties' common intention) – bystander/business-efficacy test – court will not imply a term making an agent guarantor for documentary compliance under a Letter of Credit; qualification or proviso may be necessary; supervening impossibility/requirement to produce false documents relieves agent.
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28 November 1989 |
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Intoxication and alleged influence did not mitigate culpability; death sentences for cold-blooded killing upheld.
Criminal law – Murder – Circumstances of killing, premeditation and participation of co-accused; use of eyewitness testimony to establish sequence of events. Criminal law – Intoxication – Consumption of alcohol does not necessarily mitigate blameworthiness where killing is cold-blooded and deliberate. Criminal law – Mitigation – Youth or lack of sophistication insufficient to excuse savage conduct
Appeal – Appellate court will not interfere where trial court credibility findings and inferences are reasonable
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28 November 1989 |
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Whether an instalment-sale claim for retention and agreed liquidated damages is barred by section 2(1) of the Penalty Clauses Act.
Instalment-sale and security clauses – contractual retention of instalments and agreed liquidated damages – application of Penalty Clauses Act 15 of 1962 (s 1, s 2(1), s 3, s 4) – distinction between liquidated damages/penalty and common-law damages – contractual certificate as prima facie/sufficient proof (clause 6.6) – evidential burden to rebut certificate – procedural propriety of court raising statutory issue mero motu.
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28 November 1989 |
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Sentence for large-scale, planned fraud reduced on appeal due to substantial mitigating circumstances.
Criminal law – fraud – sentencing appeal – assessment of mitigation (temptation, financial distress, remorse, prior good character) – attribution of initiative in combined schemes – proof and treatment of victim bank’s loss – appellate interference with excessive sentence.
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27 November 1989 |
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Reported
Ratification unavailable where contract was made by a person in his own name; prior judgment against agent bars suit against undisclosed principal.
Contract law – ratification; Agency – undisclosed principal versus agent acting in own name; Evidence and pleading – abandonment of primary cause and reliance on alternative ground at trial; Civil procedure – absolution from the instance and election of remedies after judgment against agent (Natal Trading principle).
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27 November 1989 |
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A commissioner under emergency regulations lacked power to impose nationwide press censorship.
Emergency regulations – construction of broad powers – meaning of "any particular area" – limits on commissioner’s powers – interaction between general emergency powers and specific Media Regulations – ultra vires order regulating press publications – ouster clause considered.
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27 November 1989 |
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Reported
Condonation granted despite solicitor’s neglect; no spoliation or interdict absent proven prior physical possession.
Court procedure – condonation for late filing – solicitor’s gross negligence – condonation granted but costs de bonis propriis ordered; Property/salvage – mandament van spolie requires clear proof of prior physical possession; occupatio/fera bestia analogy not to be extended to prefer an ‘original salvor’ over interveners; Interim and final interdicts unavailable absent possession or clear right.
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27 November 1989 |
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Reported
A public music concert is not a prohibited 'gathering' unless the assembled persons share a common object achievable by concerted action.
Administrative law; public-order statute – definition of 'gathering'/'byeenkoms' – Kahn/Lan/Dudley test controls; Zigqolo’s conflicting remarks obiter – concert audience’s passive listening does not constitute concerted action to achieve a common object.
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24 November 1989 |
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Appeal partially successful: unreliable identification and insufficient proof of participation in one killing led to multiple convictions being set aside.
Criminal law — Common purpose liability — proof of prior agreement and foresight of death; reliability of identification evidence; sufficiency of evidence for specific killings; mitigating circumstances and death sentence.
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24 November 1989 |
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The applicant may uphold a camera‑recorded speed conviction without affording the respondent an in situ inspection or manufacturer expert evidence.
Criminal procedure – speed‑trap evidence – camera‑operated speed measuring apparatus – no legal right to in situ inspection where stopping is dangerous; expert evidence of manufacturer's specifications not required; judge may supplement pronounced judgment without altering its substance; revised judgment is judgment of court a quo.
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24 November 1989 |
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Whether the appellant obtained proprietary rights to monies the respondent collected and deposited prior to liquidation.
Factors and cession of debts – collection mandates – whether contractual cession/negotiable instruments confer proprietary rights in proceeds – agent deposits into principal's bank account – earmarking/trust of money in insolvency – concurrent claim in liquidation.
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23 November 1989 |
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Reported
Youth, alleged influence and lack of prior convictions did not amount to extenuating circumstances in a brutal murder.
Criminal law – Sentencing – Extenuating circumstances – Whether youth, alleged undue influence, co-accused’s confession (witchcraft allegation), or absence of prior convictions constitute mitigation; admissibility of co-accused’s confession (s 219 of Act 51 of 1977).
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21 November 1989 |
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Second appellant’s conviction overturned for insufficient reliable evidence; first appellant’s death sentence upheld—no extenuating circumstances.
Criminal law – Murder – Liability under common purpose – Requirement for proof beyond reasonable doubt; evaluation of presence and participation. Criminal evidence – Reliance on accomplice evidence – dangers of uncorroborated accomplice testimony and assessment of witness credibility
Sentencing – Extenuating circumstances in capital cases – burden on accused to prove extenuation on balance of probabilities and limited scope of appellate review
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20 November 1989 |
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Appellate court set aside convictions after psychiatric evidence showed appellant was not criminally responsible, ordering detention pending presidential decision.
Criminal law – Insanity/mental defect – Post-conviction psychiatric evidence establishing lack of criminal responsibility; powers of appellate court under s 322(1)(b) & (c) and s 78(6) of Act 51 of 1977; condonation and leave to lead further evidence; inclusion of psychiatric reports in appeal record (s 316(4)); procedural delay in preparation of appeal records.
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20 November 1989 |
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Reported
The trial judge's hostile interventions created an appearance of bias, vitiating the appellant's conviction and sentence.
Criminal law — fair trial and judicial impartiality — judge's interventions and cross‑examining tone — appearance of bias — proceedings irregular per se — conviction and death sentence set aside — re‑prosecution under s324.
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20 November 1989 |
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Premature section 204 discharges are irregular; here unreliable, contradictory accomplice evidence made convictions unsafe.
Criminal law – section 204 discharge of incriminating witness – premature discharge at close of witness’s evidence irregular; accomplice evidence – cautionary rule and need for corroboration – contradictions and lack of post‑mortem corroboration render convictions unsafe; procedural record – absence of notation that assessors were sworn does not prove they were not sworn.
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20 November 1989 |
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Alleged intoxication and lack of premeditation failed to mitigate murder sentence; appeal against death sentence dismissed.
Criminal law – Murder – Claim of self-defence rejected where deceased unarmed and taken unawares – Sentencing – Alleged intoxication and absence of premeditation not established as extenuating circumstances – Appeal against death sentence dismissed.
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20 November 1989 |
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Court upheld trial judge's assessment of future loss of earnings for brain-injured child, including contingency deductions and epilepsy risk.
Damages — future loss of earnings; assessment of earning capacity based on expert medical and psychological evidence; allowance for contingencies; risk of future epilepsy and meningitis; appellate review of discretionary factual findings.
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17 November 1989 |
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Emotional turmoil did not negate criminal capacity; murder conviction confirmed but sentence reduced to three years.
Criminal law – Murder – Non‑pathological incapacity/emotional storm – Whether intense emotion can negate criminal capacity – Evidence of deliberation (aiming, multiple shots, prior threats) negates automatism – Rebuttal psychiatric evidence after defence – permissible – Sentence – mitigation for prolonged emotional strain reduces but does not eliminate liability.
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17 November 1989 |
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Appellant’s 30-year murder sentence reduced to 20 years, applying parity with co-accused and ordering concurrent lesser sentences.
Criminal law – sentencing – parity between co-accused – appellate reduction of sentence where participants’ roles and personal circumstances are substantially identical; concurrent ordering of lesser sentences.
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15 November 1989 |
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Registration retained; informal licensing with quality control preserves distinctiveness, but use on competitor’s branded shoes did not imply trade connection.
Trade marks – part B registration – distinctiveness – laudatory and generic use attacks – informal licensing and quality control preserving trade connection – assignments without goodwill – proviso to s 44(1) where concurrent distinctive marks, different market position and outlets negate likelihood of trade connection.
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15 November 1989 |
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Court upheld convictions, finding circumstantial evidence proved the appellant's guilt beyond reasonable doubt and dismissed the appeal.
Criminal law – Circumstantial evidence – Possession of recently stolen property, false statements, bloodstained clothing and recovery of weapon can collectively prove guilt beyond reasonable doubt
Sentencing – No extenuating circumstances found for brutal murders; death sentence upheld
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13 November 1989 |
| October 1989 |
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Reported
Auditor negligently certified misleading accounts, but the applicant's ultimate loss was too remote to impose liability on the respondent.
Company and audit law – auditor's duty and liability – negligent misstatement – inter-company manipulations and improper recognition of future income.* Delict – negligent misstatement – factual causation established but legal causation (remoteness/novus actus) defeats liability where intervening support measures and debtor misconduct break the causal chain.* Companies Act/statutory duties – s300/301 obligations (auditor's report) relevant to establishing unlawfulness and duty of care to foreseeable third‑party financiers.
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10 October 1989 |
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Permit construed in context: "contractor's plant and equipment" excludes general goods; accomplice liability upheld.
Road Transportation Act – interpretation of public road-carrier permits – "contractor's plant and equipment" construed conjunctively; permit construed in context and for purpose; no generous construction absent genuine ambiguity; accomplice liability applies where company knowingly assists unlawful carriage.
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3 October 1989 |
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Reported
Appellate court substituted maintenance award after finding lower courts misassessed children's needs and misapplied law on university education.
Maintenance — assessment of reasonable needs versus payer’s means — appellate review standard akin to quantum appeals; university education may form part of necessary maintenance; stepchildren obligations not to override biological children’s claims; speculative community-of-property issues not to be relied on if unraised.
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2 October 1989 |
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Convictions for dealing/possession of scheduled drugs upheld: chain of custody and mens rea were satisfactorily proved.
Criminal law – proof of identity and chain of custody of exhibits – adequacy of police evidence and passive narration; Criminal law – mens rea for drug offences – knowledge or foresight that possession/dealing may be unlawful; Evidence – admissibility of analyst’s affidavit and role of investigating officer in proving provenance of exhibits.
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2 October 1989 |
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Appellants' confessions were coerced; remaining circumstantial evidence insufficient to prove guilt beyond reasonable doubt.
Criminal procedure – admissibility of confessions – voluntariness and police coercion; Credibility of investigating officers and occurrence-book entries; Medical/forensic evidence of electric-shock injuries; Evaluation of circumstantial evidence and cumulative proof beyond reasonable doubt.
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2 October 1989 |
| September 1989 |
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"Security" in arrangement clauses is limited by Insolvency Act and does not include surety bonds; appeal dismissed.
Companies law — Deed of arrangement — clause deeming creditors to have ceded claims and "any security" — interpretation of "security" in light of Insolvency Act — does not include suretyship; Section 311(3) Companies Act protects sureties; evidence as to identity of buyer — intra‑group accounting cannot alter legal sale to named principal debtor.
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29 September 1989 |
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Reported
Possession of 965g dagga established juridical possession and statutory presumption of dealing; conviction and sentence upheld.
Criminal law – possession and juridical possession of illegal drugs – physical control and elements of legal possession established. Statutory presumption of dealing (s10(1)(a) Drugs Act) arising from quantity (965g) – presumption not rebutted. Credibility assessment – trial court entitled to prefer police evidence over accused’s improbable version
Sentence – three years (two suspended) upheld
Procedure – admonition on proper form of address to accused
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29 September 1989 |
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Reported
A section 119 magistrate's-plea is a preliminary inquiry, not an acquittal barring later prosecution.
Criminal procedure — section 119 plea in magistrate's court (charges triable only in superior court) — preliminary inquisitorial proceedings, not trial; autrefois acquit — entitlement to verdict under s106(4) — inapplicable to s119 proceedings; attorney-general discretion — decision not to prosecute at preliminary stage does not preclude later prosecution; section 6(b) (stopping prosecution after plea) presupposes a prosecution already commenced.
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29 September 1989 |
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Reported
State must prove lawful authority for continued detention; failure to show transfer authorisation renders detention unlawful.
Constitutional/Statutory detention – Burden of proof – State must justify arrest and continued detention under statutory or emergency powers (Hurley, Dempsey)
Emergency Regulations – Regulation 3(1)/(3)/(4) – Continued detention and transfer to other prisons require the prescribed notices/authorisations
Procedure – Motion papers – court may consider issues arising from the facts though not narrowly pleaded if no unfairness results
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29 September 1989 |
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Reported
Emergency Regulations do not plainly grant extra-territorial arrest powers to self-governing territory police; unlawful arrest taints detention.
Criminal procedure; Emergency Regulations — interpretation and territorial limits of powers of arrest — secondment of police to self-governing territory; extra-territoriality; unlawful arrest v. detention.
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29 September 1989 |
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Unreasonable legal advice does not excuse carriers' culpa in unauthorized road transportation; forfeiture set aside; sentences reduced.
Road transportation – permits – scope of permit clauses – unreasonable legal advice does not negate culpa; carriers must exercise reasonable care. Criminal law – mens rea (culpa) – directing mind of corporate accused – corporate liability where directing mind acted with culpa
Evidence – proof of convictions by admission of guilt – requires criminal record book for admissions or certified extract; J 14 alone insufficient. Statutory forfeiture (s.36) – multiple counts on same occasion constitute one conviction for forfeiture purposes
Procedure – splitting of charges – separate vehicles/permits/remuneration justify separate offences
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29 September 1989 |
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Appeal dismissed: joint participation and dolus eventualis justified murder convictions and death sentences.
Criminal law – murder – conviction on common purpose/dolus eventualis where actual killer unidentifiable; sentencing – mitigation (youth, role) considered and rejected; death sentence upheld.
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29 September 1989 |
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Reported
Latent structural repair diminishing resale/investment value entitles buyer to price reduction under actio quanti minoris.
Sale of goods – actio quanti minoris – latent defect consisting of front-end graft to chassis – proof of market value and diminution – admissibility of valuation and comparable sales – aedilitian remedy available where defect materially impairs resale/investment value though not utility.
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29 September 1989 |
