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Citation
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Judgment date
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| November 1990 |
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Whether employees were afforded a proper opportunity to make representations before summary dismissal for strike participation.
Labour law – summary dismissal – procedural fairness – audi alteram partem – whether employees were afforded a proper, broad opportunity to make representations before dismissal – evidence and credibility of viva voce testimony versus affidavit.
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30 November 1990 |
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Reported
Whether interviews limited to explanations for absence satisfied the audi alteram partem rule before summary dismissal.
Labour law – summary dismissal – audi alteram partem – adequacy and scope of hearing; motion proceedings – disputed/equivocal affidavits – when findings of fact may be made on the papers; discretion to refer to viva voce evidence; relevance of pre-printed questionnaires to nature of hearing.
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30 November 1990 |
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Reported
The respondent's sale of property was a capital realization, not taxable income, as no scheme or de facto control altered its intention.
Tax law; capital v. revenue: character of proceeds from property disposal determined by owner's intention at acquisition and conduct thereafter; change of intention requires evidence of trade, scheme or stock-in-trade; third-party takeover scheme (res inter alios acta) not attributable absent de facto control; conditional share acquisition does not automatically change corporate intention.
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30 November 1990 |
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Reported
Compensation for destroyed standing pine trees held taxable as revenue; trees were trading stock/floating capital.
Tax – Income v capital – Compensation for destruction of standing timber – Whether standing pine trees are trading stock/floating capital or fixed capital – sylva caedua and pre-sale irrelevant – Compensation for standing pine trees held revenue.
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30 November 1990 |
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Reported
Industrial councils may bind non‑members; Minister’s s48(1)(b) notices can make deduction prohibitions applicable, rendering the strike unlawful.
Labour law – Industrial council jurisdiction under s 23(1) – Extends to non‑members where council is sufficiently representative; Minister’s powers under s 48(1)(b) – may declare agreement provisions binding on non‑parties and specify exclusions; Industrial agreements – prohibition on deductions and criminal sanction under s 53(1); Strike law – legality under s 65(1)(a) where dispute concerns matters dealt with in a binding agreement; Judicial review – industrial court decisions set aside as grossly unreasonable for failing to consider binding statutory instruments.
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30 November 1990 |
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Reported
Whether irrecoverable intra‑group loans are deductible: revenue (circulating) losses versus exclusion under section 23(g).
Tax — Income Tax Act s11(a) and s23(g) — deductibility of irrecoverable loans by a group finance company — distinction between fixed and circulating capital — whether intra‑group lending serves a separate disqualifying purpose under s23(g) or is inherently incidental to trade.
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30 November 1990 |
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Appeal dismissed: death sentence appropriate given extreme premeditation, brutality and lack of mitigating evidence.
Criminal law – sentencing after Criminal Law Amendment Act 107/1990 – appellate court’s independent discretion under substituted s.277; mitigating factors (prison subculture, overcrowding) require evidential basis; death penalty reserved for cases of exceptional gravity; refusal by accused to participate in defence not ground for remittal absent miscarriage of justice.
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30 November 1990 |
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Appellants' convictions for rape and multiple murders upheld and death sentence for principal offender confirmed.
Criminal law – Identification evidence – night-time sightings, parade and totality evaluation – credibility and reliability. Criminal law – Joint enterprise/dolus directus – two accused acting with common purpose in multiple violent offences. Evidentiary linkage – availability and identification of weapon (panga) despite negative forensic blood tests. Sentencing – exercise of appellate power under amended s322 to substitute sentence; aggravating vs mitigating factors and confirmation of death sentence.
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30 November 1990 |
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Under Act 107 of 1990 death sentences are exceptional; two death sentences were set aside and replaced with lengthy imprisonment.
Criminal law – series of armed robberies and murders – convictions upheld; doctrine of common purpose – dolus eventualis where shooter not identified – sentencing under Act 107 of 1990 requires explicit weighing of mitigating and aggravating factors; death sentence reserved for exceptionally serious cases – appellate discretion to set aside death sentence and impose appropriate punishment.
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30 November 1990 |
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Reported
Appellant's death sentence for murder upheld; death sentence for rape set aside and replaced by 20 years.
Criminal law — sentencing under Criminal Law Amendment Act 107 of 1990 — death penalty — assessment of aggravating and mitigating factors — planned, sadistic murder justifying death — avoidance of double-counting when multiple convictions (murder and rape) — violence attendant on rape as aggravation but cannot duplicate punishment — concurrent sentencing.
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30 November 1990 |
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Reported
Whether a prosecutor‑general’s s 139 directive is invalid where the statutory preliminary‑inquiry record required by s 137 was not produced.
Criminal procedure — preliminary inquiry (Chapter 20) — s 137 transmission of oorkonde at 'afsluiting' and s 139 prosecutor‑general's power to order trial — whether completion of preliminary inquiry is jurisdictional prerequisite; waiver/consent to procedural non‑compliance; when irregularity renders trial null and void; ultra vires decision; reviewability of prosecutorial acts.
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30 November 1990 |
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Appellate court held death reserved for exceptionally serious murders; substituted 20 years' imprisonment after weighing mitigating and aggravating factors.
Criminal law – murder – sentencing under Criminal Law Amendment Act 107 of 1990 – replacement of 'extenuating circumstances' by broader mitigating/aggravating factors (new s277) – death sentence reserved for exceptionally serious cases – appellate court's independent discretion on capital appeals (s13(b)) – admissibility and weight of confessions
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29 November 1990 |
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Reported
Whether annual leave (or part thereof) can be granted concurrent with notice and whether a year-end shutdown exemption applies.
Labour law – annual leave – s12(1)(a) and s12(2)(b) Basic Conditions of Employment Act – prohibition of granting annual leave concurrent with notice – scope applies to any portion of entitlement; exemption under Government Notice 2420 (s34) – requires cessation of specific departmental activities for purpose of leave and compliance with provisos (public holiday extension; payment timing).
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29 November 1990 |
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Death not the only proper sentence where the appellant's rage and loss of control were significant mitigating factors.
Criminal Law Amendment Act 1990 – abolition of compulsory death sentence – appellate sentencing discretion; weighing of aggravating and mitigating factors; s 119 admissions and objective corroboration supporting murder convictions; mitigation by rage/loss of self-control affecting appropriateness of death penalty.
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29 November 1990 |
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The appellant’s murder conviction, based on credible identification and common purpose, was upheld and appeal dismissed.
Criminal law – Identification evidence – credibility and corroboration of eyewitnesses – Dhlumayo standard applies. Criminal law – Common purpose – participation in group assault and shared intent to kill. Criminal procedure – Failure to testify – its impact in strengthening a strong prima facie case. Homicide – murder established where attack and accompanying statements demonstrate intent to kill.
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29 November 1990 |
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Appellants convicted on reliable identification and admissible confessions; death sentences upheld for contract, premeditated murder.
Criminal law – identification evidence and identification parade – voluntariness and admissibility of extra‑judicial statements (s 119, s 115, written confession) – alibi assessed – sentencing under post‑abolition death‑penalty regime; contract/pre‑meditated murder as exceptional circumstance warranting death sentence.
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29 November 1990 |
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Reported
Owner not liable where injury from off‑road motorcyclist was not a reasonably foreseeable risk of the undeveloped land.
Contract – safety obligations (clause requiring provision of lights, guards, fencing) – indemnity clause – occupier’s/owner’s negligence – reasonable foreseeability of harm to users of undeveloped land – assessment of evidence of public use and proportionality of precautions.
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28 November 1990 |
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Reported
Blocking a defensive trademark application gives sufficient interest to be a "person aggrieved" entitled to seek expungement.
Trade marks – section 36(1)(b) expungement – locus standi – applicant blocked from defensive registration under section 53(1) is a "person aggrieved"; burden to rebut inferred bona fides lies on respondent.
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28 November 1990 |
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Reported
Operator liable for injuries when train was allowed to depart unsafely while passengers were boarding or alighting.
Railway/operator negligence — permitting train to depart while passengers boarding/alighting — duty to ensure safe departure; causation of injuries from moving train. Evidence and credibility — acceptance of injured passenger's account absent adverse findings. Damages — entitlement to private future medical and adaptive-aid costs unless defendant proves reliable state provision; assessment principles and contingency deductions. Procedural — cross-appeal incompetent where no favourable order to appellant; condonation for late appeal and costs consequences.
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28 November 1990 |
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Reported
Conviction overturned where identification evidence was unreliable and the trial court misapplied credibility and burden standards.
Identification evidence — mistaken identification risk; evaluation of credibility; trial misdirection on standard for accused’s exculpatory evidence; inadequate police plan, lighting and vantage; no identification parade or inspection-in-loco; possible motive (gang animosity) undermining witness reliability; height-discrepancy fatal to ID.
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28 November 1990 |
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Reported
A purchaser must prove the vendor’s fraudulent concealment (dolus malus) to overcome a voetstootsklousule.
Sale – voetstootsklousule – hidden defects – purchaser seeking to defeat clause must prove vendor’s dolus malus (knowledge and deliberate concealment) – mere knowledge or negligence insufficient; Roman and Roman‑Dutch authorities applied.
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28 November 1990 |
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Reported
Contempt in facie curiae requires intent; ordinarily afford opportunity to be heard before immediate imprisonment; excessive sentences reduced.
Contempt of court — contempt in facie curiae — requisite intent (dolus) — summary procedure — audi alteram partem considerations before conviction and before immediate imprisonment — sentencing principles: protective, reformative, not punitive; excessive sentence set aside and replaced.
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27 November 1990 |
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A 16-year-old's culpable homicide and sentence upheld: objective negligence standard applies despite youth and firearm experience.
Criminal law – culpable homicide – negligence standard (objective v. subjective) – youth and experience with firearms – sentencing discretion; community service condition.
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26 November 1990 |
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Reported
Acceptance of accomplice evidence and pointings-out can sustain terrorism convictions; unproven pointing-out may reduce sentence.
Criminal law – terrorism (s 54(1) Internal Security Act) – admissibility and evaluation of accomplice (single witness) evidence – pointings-out and inferences of knowledge and possession of weapons – sentence mitigation where part of State case is unproven.
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26 November 1990 |
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Reported
A s319(1) reservation must accurately state the legal question and material facts; noncompliance requires referral to the trial judge.
Criminal procedure – reservation of legal question (art 319(1) Criminal Procedure Act 51 of 1977) – requirements to state question accurately and set out material facts – mero motu reservation – autrefois convict – abuse of process/piecemeal adjudication – remit to trial court.
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26 November 1990 |
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Appellant guilty of murder under dolus eventualis; death sentence set aside and replaced by 20 years' imprisonment.
Criminal law – murder by co‑accused – common purpose and dolus eventualis where accused supplied instrument used to kill; sentencing under Strafregwysigingswet 107/1990 – assessment of aggravating and mitigating factors; appellate discretion to substitute sentence for death penalty.
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26 November 1990 |
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Whether a fatal brain infarction months after a stabbing was caused by the assault and whether death sentence was appropriate.
Criminal law – Causation – factual and legal causation where death occurs some months after assault – novus actus – medical evidence; Criminal law – Intention – dolus eventualis inferred from violent knife attack; Sentencing – appropriateness of death sentence and substitution with lengthy imprisonment.
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26 November 1990 |
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Reported
Losses on shareholder loans and related suretyships intended for resale with shares are revenue losses and deductible under s 11(a).
Tax — Income Tax Act s 11(a) — Deductibility of losses — Shareholder loans to private property companies advanced to create a resaleable interest (shares plus loan account) treated as floating capital — losses and suretyship payments held revenue, not capital. Distinction from Stone v SIR; alignment with ITC 1344. Interest deductible subject to s 19 adjustment.
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23 November 1990 |
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Reported
A certified voters' list is final; the Director may not add candidates post-certification, making such nominations invalid.
Local government elections — voters' lists — regulation 5(4)(b) certification makes list final and conclusive — regulation 5(6) does not permit post-certification addition of names for an ensuing election — post-certification amendments and resultant declarations nullities.
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23 November 1990 |
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Appellate court set aside one fraud conviction for insufficient evidence and reduced sentences of two co‑accused.
Criminal law – Fraud – Trial misdirection: improper reliance on s 332(5) and shifting of onus; requirement that State prove guilt beyond reasonable doubt; caution in accepting accomplice/co‑accused evidence; duress defence considered and rejected; sentencing – mitigation where dominant co‑accused likely originator; appellate interference with sentence to substitute fines and suspended imprisonment.
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23 November 1990 |
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Reported
A clause allowing recovery of actual third‑party completion costs becomes due only after appointment and expenditure, postponing prescription.
Prescription – debt "due" – meaning under s 12(1) Prescription Act – contractual clause conditioning recovery on appointment of third party and incurring expenditure – clause creating substituted remedy distinct from common‑law complementary damages – locatio conductio operis/innominate contract context.
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16 November 1990 |
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Reported
A duly confirmed trustee's account is final after dividend payment unless clear fraud or a statutory exception is established.
Insolvency — trustee remuneration — s.63(1) and tariff B item 4 (6% on sales) — s.80 authority to carry on business — Master’s taxation and confirmation of trustee’s accounts — s.112 finality after dividend paid — s.151 review limited — wrongful factual basis doctrine and misrepresentation — fraud required to reopen confirmed accounts.
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16 November 1990 |
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Reported
Retail or wholesale selling (and ancillary sales activities) do not constitute registrable "services" under the Trade Marks Act; such service marks are invalid.
Trade marks – service marks – whether retail or wholesale selling constitutes 'services' under the Trade Marks Act – ancillary activities to sales – Miele dictum and Dee (U.K.) persuasive – entries without sufficient cause (s33(1)) – registration without bona fide intention/use (s36(1)(a)) – expungement.
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16 November 1990 |
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Appellate court independently assesses whether death is 'the proper sentence'; life imprisonment substituted for death.
Criminal law – Capital sentencing – Appeal against death sentence – Appellate court's independent discretion under amended s227 Criminal Procedure Act – 'Proper sentence' means the only proper sentence; death penalty confined to exceptionally serious cases – Mitigating and aggravating factors to be weighed – Life imprisonment under amended s64 Prisons Act a viable alternative.
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15 November 1990 |
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Buyer’s rescission for alleged misrepresentations denied; seller validly cancelled and retained payments; buyer awarded compensation for improvements.
Sale agreement — alleged misrepresentations — burden on buyer to prove inducement and reliance; suspensive condition (bank loan) ineffective where parties did not intend it to prevent obligations; repudiation and election to cancel; forfeiture clause valid if notice and non-performance established; penalty clause not reduced absent proof of disproportion; occupant entitled to compensation for useful improvements.
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15 November 1990 |
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Reported
Section 156 applies only where insurer indemnifies insured for liability to a third party; mere property insurance does not suffice.
Insolvency Act s156 – scope – applies only where insurer indemnifies insured in respect of a liability to a third party; insurance for property loss does not by itself create section 156 rights; landlord’s contractual lease requirement to insure does not convert insurer’s obligation to a liability to third party absent express policy provision.
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13 November 1990 |
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A notice stating 'fourteen days of date hereof' did not satisfy a clause requiring 14 days after receipt, invalidating the cancellation.
Lease — forfeiture/forfeiture notice — clause requiring remedy 'within 14 days after receipt of such notice' — notice stating 'within fourteen days of date hereof' insufficient — validity of cancellation dependent on strict compliance with notice clause; contractual notice interpretation; distinguishing SA Wimpy v Tzouras, Rautenbach v Fennes, Swart v Vos, Fouriesberg v Van Rensburg.
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9 November 1990 |
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Reported
A commercial agreement can be binding on core terms despite price finalisation with a government authority and ancillary matters left for negotiation.
Contract — commercial agreement — innominate contract enforceable despite outstanding ancillary matters described as "agreed in principle"; price to be finalised jointly by contractor and governmental authority does not necessarily render agreement void for vagueness; exception — pleadings to be construed commercially and fairly.
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9 November 1990 |
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Appellate court set aside death sentence, imposing 15 years imprisonment for murder due to mitigating factors, effective 17 years.
Criminal law – Sentencing – Capital punishment review after Act 107 of 1990 – Whether death is the only appropriate sentence – Mitigating factors (youth, intoxication, limited education, spontaneity/provocation) versus aggravating brutality and prior conviction – Substitution of long term imprisonment and ordering of concurrent sentences.
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9 November 1990 |
| October 1990 |
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Reported
Employer liable where foreseeable danger from subcontractor’s work was not guarded against; late recall of witness permitted.
Employer liability for independent contractor's work; non-delegable duties tested by foreseeability and reasonable precautions; discretion to reopen case for inadvertent omission of evidence; absence of warning/cordon as breach; contributory negligence defence rejected; medical evidence: organic brain damage v post‑traumatic syndrome; quantum for future loss of earning capacity.
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4 October 1990 |
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A routine variation order to remeasure work did not replace contracted unit rates with ‘fair and reasonable’ remuneration.
Construction contract – Variation order – Whether a variation order issued to omit provisional quantities and add back cost of work substitutes contracted unit rates with a ‘fair and reasonable’ remuneration – animus contrahendi and consensus – variation orders issued pursuant to clause 3(iii) – evidential significance of contemporaneous minutes and parties’ conduct.
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1 October 1990 |
| September 1990 |
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Reported
Whether the respondent had an insurable interest in the building after termination of the personal servitude and proved actual loss under an open fire policy.
Property law – personal servitude reserved on transfer – personal servitude terminates on death; successors cannot alienate servitude rights. Real rights and registration – registration protects ownership of real rights; personal servitude qua personae is inalienable. Insurance law – unvalued (open) fire policy requires insured to prove actual loss subject to policy limit. Occupation and improvements – bona fide occupier who did not erect building has no proprietary claim to materials, no compensation for nonexistent necessary/useful improvements, no right of retention.
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28 September 1990 |
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The appellate court upheld death sentences where aggravating factors outweighed mitigation under the amended sentencing regime.
Criminal law – murder – sentencing after abolition of mandatory death penalty – appellate court’s independent discretion under amended s 277 – weighing mitigating and aggravating factors; mental fitness and admissibility of confession; intoxication defence evaluated on evidence.
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28 September 1990 |
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Reported
The applicant’s purchase of the bank’s claim and securities was valid and enforceable against the respondent.
Banking law – cedability of banker’s claim for overdraft – delectus personae and confidentiality do not necessarily prevent cession; security instruments (cession of book debts) containing 'order or assigns' permit transfer; interpretation of cession to determine scope; cessionary’s standing to sue in own name.
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28 September 1990 |
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Reported
A division may not confer jurisdiction by attaching property outside its territorial area; s 26 SC Act is procedural only.
Civil procedure – Jurisdiction – Territorial limits of provincial/local divisions – Attachment ad fundandam/ad confirmandam jurisdictionem – s 26(1) Supreme Court Act procedural only – Effectiveness does not confer jurisdiction.
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28 September 1990 |
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Reported
Lost trial record and failure to follow reconstruction procedure caused prejudice requiring convictions and sentences to be set aside.
Criminal procedure – lost trial record – court order to reconstruct record (best secondary evidence) – audi alteram partem in reconstruction – failure to comply with reconstruction order – prejudice/failure of justice – setting aside convictions and sentences
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28 September 1990 |
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Reported
An exemption under Proclamation R293 for township site sales survives the 1969 written-form Act; factual disputes required oral evidence.
Property law – Formalities for sale of land – Interaction between general written-form statute (Act 71 of 1969) and special regulation (Proclamation R293 reg 9) – special enactment not impliedly repealed by later general Act; procedural law – Rule 6(5)(g) – referral for oral evidence where material facts are peculiarly within applicant's knowledge and reasonable doubt exists.
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28 September 1990 |
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Reported
Appellate court held extra‑curial hearsay may be admitted under s 3(1)(c); matter remitted for judicial discretion and further rulings.
Evidence — Hearsay — Extra‑curial admissions — Statements by driver to police — Admissibility under s 3(1)(c) Law of Evidence Amendment Act 45 of 1988 — Quntana considered — Vicarious admissions not automatically inadmissible — Trial court must exercise statutory discretion in interests of justice.
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28 September 1990 |
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Appellate court may re-sentence after magistrate's misapprehension and apply more favourable new statutory sentencing options.
Criminal law – sentencing – appellate reconsideration where trial magistrate misapprehended counsel’s submissions; application of more favourable post-conviction sentencing options in new statute (Liquor Act s163(2)); appropriateness of fine plus suspended imprisonment for repeat unlawful liquor trading.
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28 September 1990 |
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28 September 1990 |
