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Citation
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Judgment date
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| December 1991 |
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Copyright owner entitled to interdict and delivery‑up of infringing reproductions and tools; account of profits dismissed.
Copyright — s24(1) Copyright Act 98 of 1978 — remedies available to copyright owner — delivery‑up of infringing copies and 'plates' (tools, dies, jigs) — Anton Piller seizure evidence — account of profits and additional damages — costs attorney and client.
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4 December 1991 |
| November 1991 |
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Appellant's murder sentence reduced for youth, intoxication and mob participation; appeal allowed to five years.
Sentencing — Murder committed by mob: balance of aggravating (gruesome burning) and mitigating factors (youth, intoxication, mob pressure, non-initiation); appellate interference where sentence is unreasonable; credit for pre-trial custody
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29 November 1991 |
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An agent is entitled to commission where the applicant’s introduction directly led to a voluntary acquisition by the State.
Agency law – mandate to sell – whether mandat e included both immovable property and business (movable assets). Commission – entitlement where State acquisition follows agent’s introduction and negotiations leading to offer and acceptance. Distinction between voluntary sale leading to expropriation and compulsory expropriation without negotiation (John Wilkinson distinguished). Quantum – exclusion of solatium/other components when assessing commission.
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29 November 1991 |
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Reported
Developer's reserved extension right is a registrable personal real right but not freely alienable under the old Act.
Sectional Titles — developer's reserved right of extension — real right registrable under Deeds Registries Act s 64(1); classification as personal servitude (not praedial); merger/nulli res sua servit; transitional savings in Sectional Titles Act 1986 s 60 — preservation of old-Act rights but no importation of new-Act alienability (s 25).
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29 November 1991 |
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Reported
A lease provision for recovering actual and reasonable maintenance expenses is enforceable if objectively ascertainable and not a mere arbitrary landlord discretion.
Lease law – clause for recovery of 'maintenance and running expenses' – certainty and ascertainability of defined expenses; whether amounts constitute rent; limits on landlord's discretion; contractual construction favouring validity; surcharge clause construed as agreed maximum rate.
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29 November 1991 |
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Reported
Owner liable where known-route unrest made petrol‑bomb attack and ensuing passenger injuries reasonably foreseeable.
Motor Vehicle Accidents Act s 8(1) – meaning of "arising out of the driving" – causa sine qua non with common-sense limitation; foreseeability and duty of owner to avoid known danger; liability for injuries from third‑party criminal attacks where driving on a dangerous route precipitated the attack; adequacy of precautions (route closure, communications).
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29 November 1991 |
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Reported
A collecting banker may be liable in delict for pure economic loss to a cheque's true owner if negligent collection breaches a legal duty.
Banking law – Collecting banker – Liability in delict for negligent collection of stolen or wrongfully endorsed cheque – Pure economic loss – Lex Aquilia – Duty of care to true owner – Unlawfulness assessed by policy-driven value judgment.
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29 November 1991 |
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Death sentences set aside and matter remitted to trial court to hear further mitigation evidence under new sentencing test.
Criminal law – sentencing – retrospective application of new sentencing standards under Criminal Law Amendment Act 107/1990 s19(12)(b)(iii) – criteria for referral to hear further mitigating evidence – relevance, reasonable possibility it would have been led, probable acceptance, potential to produce a different sentence
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29 November 1991 |
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Between-hearing admissions cannot be used on the merits; dolus eventualis and mitigation justified replacing death sentences.
Criminal law – admissibility of confessions and between-hearing statements; improper reliance on inadmissible evidence at merits stage; distinction between dolus directus and dolus eventualis; sentencing under amended provisions — death sentence substituted with long determinate terms where mitigating factors present
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29 November 1991 |
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Appellate court upheld the appellant's murder conviction, found no trial irregularity, but reduced the effective sentence to four years.
Criminal procedure – section 186 discretion to call witnesses – appellate review of exercise of discretion. Evidence – expert evidence and speculation – no duty to call medical evidence absent foundation. Assessors – permissible scope of assessor questioning – not an irregularity where probing but proper. Credibility – rejection of accused's version and application of reasonable-possibility test implicit in judgment. Criminal law – murder – intention to kill inferred from facts; sentence mitigation for prolonged provocation, personality and rehabilitation
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29 November 1991 |
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Pathological jealousy, low intelligence and alcohol-exacerbated impairment justified replacing death sentences with life imprisonment.
Criminal law – Sentencing on appeal against death sentence – appellate balancing of aggravating and mitigating factors – personality disorder, mild mental retardation and alcohol abuse as substantial mitigation – pathological jealousy reducing moral culpability – death sentence substituted by life imprisonment
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29 November 1991 |
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Voluntariness of confession must be decided separately; trial-within-trial evidence generally excluded from the main trial.
Criminal procedure – confession – voluntariness and admissibility – trial within the trial (voir dire) to be kept distinct from main trial on guilt; evidence at voir dire not generally used against accused at main trial. Criminal procedure – accused’s election not to testify at main trial – effect where confession, pointing out and prior admissions remain uncontradicted. Evidence – admissions made at bail applications and pointing out of crime scenes – admissibility and weight. Sentencing – application of Criminal Law Amendment Act 107 of 1990 to existing matters; discretion to substitute death sentence with lengthy imprisonment; concurrency and calculation of effective sentence
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29 November 1991 |
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Flagrant non‑compliance with appellate rules and inadequate explanations justified refusal of condonation and striking the appeal with costs.
Appellate procedure – condonation – late notice of appeal, late and incomplete record, late power of attorney – explanations must be specific and satisfactory – flagrant non‑compliance and negligence justify refusal of condonation and striking of appeal – costs including two counsel.
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29 November 1991 |
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Appeal allowed: five‑year sentence wholly suspended with 300 hours’ community service, balancing mitigation against breach of trust.
Criminal law – Sentencing – Theft by person in position of trust over extended period – Balancing breach of trust and community interests against mitigation (first offender, long service, remorse, restitution, family hardship) – Lawful use of wholly suspended custodial sentence with community‑service condition under s 297(1)
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29 November 1991 |
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Appellant's admissions, plea and medical evidence sustain murder conviction via common purpose/dolus eventualis.
Criminal law – Murder – communal stoning – medical evidence of fatal blunt‑force trauma – evidential weight of extra‑judicial statements and plea admissions – credibility of appellant’s denials – common purpose and dolus eventualis established.
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28 November 1991 |
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Reported
Statutory adoption deeming does not override a clear testamentary intention to limit succession to blood descendants.
Succession; interpretation of "child" and "descendant" in wills; effect of adoption deeming provisions; Van Tonder precedent; legal fiction versus testamentary intention; fideicommissum to "eldest child".
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28 November 1991 |
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A right of first refusal applies only to the specific erven the grantee selects; failure to select prevents its operation.
Contract – Interpretation – Right of first refusal (pre-emption) – Right applies only to specifically identified merx – contextual construction; contrast with clause granting right over all business erven where merx defined.
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28 November 1991 |
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Reported
A cession between sister companies was genuine, enabling enforcement of a suretyship against the defendant.
Cession — validity — whether written transfer between sister companies was genuine or sham; burden to prove simulation. Cession v. mandate/agency — legal distinction; cession vests right in cessionary whereas mandate does not. Evidentiary burden — producing written cession shifts burden to opponent to show feigned intention. Precedent — distinction from Skjelbreds Rederi A/S v Hartless where cession aimed to circumvent legal disability. Commercial arrangements between related companies (no consideration, accounting undertakings) do not necessarily invalidate a cession.
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28 November 1991 |
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Reported
Whether the applicant's journalistic writings called "increasingly depraved" amounted to defamation or fair comment.
Defamation — meaning in context; reference to journalist's writings versus private character. Fair comment — comment v fact; requirements: opinion, fairness, true factual substratum, public interest. Factual substratum — need not be expressly stated if facts are public/ascertainable (Kemsley v Foot; Roos v Stent). Literary criticism — criticism of published work invites comment; objective test of fairness.
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28 November 1991 |
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The appellants' death sentences were replaced by long prison terms under the new sentencing regime due to significant mitigating factors.
Criminal law – Sentencing – Effect of Criminal Law Amendment Act No 107 of 1990 on imposition of death penalty – State bears onus to prove aggravating factors and absence of mitigating factors beyond reasonable doubt – aggravation v. mitigation to be weighed against sentencing objectives; common purpose; uncertainty as to who inflicted fatal wound; concurrent sentences
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28 November 1991 |
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Death sentence affirmed for planned, brutal daytime home-invasion murder with no mitigating factors.
Criminal law – Murder – Sentencing – Daylight home invasion, planned and brutal strangulation of a defenceless woman – absence of mitigating factors – death sentence affirmed as only appropriate penalty
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28 November 1991 |
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Death sentences confirmed for appellants in premeditated, ruthless home-invasion murders; mitigation insufficient.
Criminal law – Sentencing – Reconsideration of death sentence under Criminal Law Amendment Act 107/1990 s19 – Premeditated, armed home invasions; direct intention to kill; aggravating factors outweigh minimal mitigation (intoxication, personal circumstances); death sentence confirmed
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28 November 1991 |
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The court confirmed the applicant's death sentence for premeditated, cold‑blooded murders committed during a robbery of elderly victims.
Criminal law – Murder – Sentence – Whether death sentence is the only proper sentence where murders were premeditated and committed during a robbery of elderly, defenceless victims; prior housebreaking/theft convictions as aggravating; personal circumstances and mitigation; retribution and deterrence in sentencing
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28 November 1991 |
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Reported
Application to remit for further evidence under s19(12)(b)(iii) refused; death sentence confirmed.
Criminal law – Transitional provision (s 19 Criminal Law Amendment Act 107/1990) – Reconsideration of death sentences imposed before new test – Criteria for remitting case for further evidence under s 19(12)(b)(iii) – Limits on re-opening concluded trials – Relevance of post‑sentence evidence
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28 November 1991 |
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Reported
Court dismissed applicant's claims that respondent's Brillo get-up amounted to passing off or false advertisement.
Passing off — likelihood of confusion/business‑connection deception; overall get‑up vs individual elements; market survey evidence — admissibility and weight; Merchandise Marks Act — assent to use/registered user and locus standi; Trade Practices Act s9 — false or misleading advertisement and objective construction of slogan.
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28 November 1991 |
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Reported
A third party's conditional undertaking does not release the respondent from original liability nor compel election by the creditor.
Civil procedure – appealability under s 20(1) – judgment or order "given on appeal" held appealable.* Contract – interpretation – conditional pactum de non petendo; clear wording precluded treating agreement as novation or expromissio.* Contract – third‑party benefit – no stipulatio alteri where no intention or mechanism for acceptance shown.* Remedies – creditor entitled to separate remedies against third party and debtor; no election where remedies are not inconsistent.* Insolvency/procedure – writ challenged for lack of causa; challenge unsuccessful where conditional undertaking lapsed on breach.
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28 November 1991 |
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Reported
Whether prescription between two partners remains suspended despite admission or withdrawal of other partners.
Prescription – s.7(1)(b) and definition para (iv) of "person under legal disability" in Prescription Act 18 of 1943 – construction whether suspension of prescription between partners ends upon admission/withdrawal of other partners; debt "arising out of the partnership"; effect of dissolution and reconstitution of partnership on suspension of prescription.
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28 November 1991 |
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The appellant’s death sentence for murder during a robbery was set aside and reduced to 15 years due to dolus eventualis and mitigating factors.
Criminal law – murder during robbery – doctrine of common purpose – conviction can be sustained though identity of shooter not proved. Mens rea – distinction between dolus directus and dolus eventualis relevant to sentencing. Sentencing – post-Act 107/1990 appellate review of death sentence: consider sentence afresh, weighing mitigating and aggravating factors. Ballistics and circumstantial evidence – linking firearms to scene supports conviction even if specific shooter not identified
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27 November 1991 |
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Appellate court replaced death sentence with life imprisonment where psychiatric evidence left possibility of diminished responsibility.
Criminal Law Amendment Act 107 of 1990 – appellate sentencing powers – weighing aggravating and mitigating factors and considering alternatives to death sentence; Criminal Procedure Act s 79 – psychiatric inquiry – adequacy of report to determine criminal responsibility; Diminished responsibility/mental condition – relevance to sentencing where psychiatric report is inconclusive; Sentencing – substitution of death sentence with life imprisonment where death not the only appropriate punishment
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27 November 1991 |
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Reported
The respondent's conditional direct offers to non‑striking employees producing retrospective unequal pay constituted an unfair labour practice.
Labour law – collective bargaining – recognition agreement – duty to bargain in good faith – limits on unilateral action after impasse; Unfair labour practice – direct negotiation with employees by employer – conditional backdating of increases to non‑strikers – unequal retrospective treatment; Whether bad‑faith bargaining by union justified bypassing recognised bargaining agent; Remedies and costs in unfair labour practice proceedings.
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27 November 1991 |
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Court convicts both accused of murder and insurance fraud for staging a fatal arson; no mitigation found.
Criminal law — Murder and fraud — Conspiracy/common purpose — Admissibility of co-conspirator statements and acts — Insurance‑fraud scheme — Extenuating circumstances and mandatory sentence.
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27 November 1991 |
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Court upheld convictions and death sentences for the appellants who conspired to burn a stranger for insurance proceeds.
Criminal law – Murder – conspiracy to kill for insurance proceeds by deliberately setting a car alight – proof by circumstantial and direct evidence; credibility of witnesses. Criminal procedure – assessment of alternative explanations (accident, joke, intoxication, manipulation) against totality of proved facts. Sentencing – consideration of mitigating and aggravating factors under post-Wet 107/1990 regime; long premeditation, financial motive and extreme cruelty justify death penalty
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27 November 1991 |
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Under the amended statutory test the Court set aside death and substituted 25 years’ imprisonment for a brutal multiple‑stab murder.
Criminal law – Sentencing – Reconsideration of pre‑amendment death sentences under s19(12) of amending Act – application of wider s316A test – assessment of aggravating and mitigating factors; motive and intention (dolus eventualis) in savage multiple‑stab homicide
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27 November 1991 |
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Refusal to recall complainant after material contradictions deprived the accused of a fair trial; conviction and sentence set aside.
Criminal procedure — rape — duty to disclose previous inconsistent statement — material contradictions in witness evidence — refusal to recall witness for further cross‑examination constitutes material irregularity affecting fairness of trial — reliance on S v Xaba
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27 November 1991 |
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Whether police killing during a vehicle pursuit was lawful under s 49(2) or constituted actionable negligence.
Criminal procedure – s 49(2) Criminal Procedure Act – requirements for non-punishable killing during arrest or attempted arrest – reasonable suspicion and knowledge of arrest attempt by accused – scope of police authority to use lethal force in vehicle pursuits; Civil liability – negligence by police in firing at vehicle wheels during pursuit – damages for wrongful death.
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26 November 1991 |
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Reported
Conveyance vehicles collecting farmers' milk are not "used directly" in manufacture or primary processing for tax allowances.
Tax law – Income Tax Act s 12(1)(a), s 12(2)(a): "used directly" in manufacture – pasteurisation a process of manufacture but cooling is preservation not manufacture – conveyance by tankers/trucks ancillary, not direct use. s 27(2)(d)/(e): agricultural co-operative allowances – plant "used directly" for storing members' products or subjecting to a primary process – tankers/trucks neither store nor directly perform primary processing.
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26 November 1991 |
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The appellant’s death sentence was affirmed because aggravating factors outweighed any mitigating circumstances.
Criminal law – re‑sentencing under Criminal Law Amendment Act (s19/ amended s277) – death penalty – assessing mitigation (youth, prior record, intoxication) versus aggravation (elderly victims, gratuitous violence, killings during robbery, lack of remorse) – intoxication evidence rejected
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26 November 1991 |
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Reported
Whether the Lloyds premium levy applies to non‑Lloyds policies and whether mistake of law bars restitution.
Insurance law - interpretation of s 60(1)(f) of Insurance Act: 2.5% levy applies to Lloyds-underwritten business only; policies placed under s 60(2) do not attract the tax. Restitution/condictio indebiti - mistake of law: mistake of law is not automatically a bar to recovery; mistake of law and mistake of fact stand on the same footing provided the error is excusable. Onus: plaintiff bears burden to prove excusability. Statutory interpretation: penal/pecuniary burdens construed in favour of the subject.
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26 November 1991 |
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Leave to appeal sentence granted because, despite severity justified by crime and record, a reasonable prospect of appellate relief exists.
Criminal law – Sentence – Leave to appeal against heavy custodial sentence – Seriousness of robbery with aggravating circumstances and appellant’s bad record justify heavy sentence, but reasonable prospect of success on appeal (including possible concurrency with existing sentence) warrants leave to appeal.
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25 November 1991 |
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An 18-year-old offender’s youth was mitigating; the death sentence was substituted with life imprisonment.
Criminal law – sentencing on murder – reconsideration under amended s 277/art 19(12) – mitigating factors: psychopathy, unhappy childhood, youth – psychopathy not mitigating where conduct was calculated – youth may mitigate; death sentence substituted with life imprisonment.
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25 November 1991 |
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Death sentence affirmed for calculated close-range robbery-murder given brutal conduct, serious prior record, and no mitigation.
Criminal law – Murder – Close-range, calculated shooting during robbery – Dolus directus. Sentencing – Aggravating factors: motive of robbery, brutal conduct, serious prior convictions, offences committed on parole. Mitigation rejected – alleged intoxication, illiteracy and deprived upbringing insufficient. Review under s19 Act 107 of 1990 – confirmation of death sentence appropriate
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25 November 1991 |
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Appellate court upholds a five-year sentence for repeated cheque fraud and insolvency-related offences; sentencing discretion was properly exercised.
Criminal law – Sentencing – Multiple counts of cheque fraud and statutory insolvency offences – Sentencing discretion and deference on appeal; deterrence and protection of community as dominant sentencing considerations. Sentencing – Prior convictions and suspended sentences – timing of prior imprisonment and possible activation of suspended sentence considered but did not preclude further imprisonment
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25 November 1991 |
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Whether the applicant’s death sentence was appropriate given reasonable doubt about deliberate shooting and condonation for late appeal.
Criminal procedure – condonation for late filing of notice of appeal – omission to serve one registrar – prompt correction, no prejudice, condonation granted. Criminal procedure – condonation for late filing of heads of argument – no formal application, substantial delay, prejudice to State – condonation refused. Evidence – single eyewitness – distinction between credibility and reliability – poor lighting, confined space and rapid events may vitiate objective reliability. Sentence – death penalty – appropriateness where reasonable possibility exists of different causal account; statutory scheme restricts death sentences; substitution with long imprisonment permissible
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25 November 1991 |
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Conviction reduced to culpable homicide: State failed to prove dolus eventualis beyond reasonable doubt.
Criminal law – dolus eventualis – subjective foresight must be proved beyond reasonable doubt; inference must be the only reasonable one – expert ballistic evidence not dispositive of accused’s subjective foresight – post-offence conduct not determinative – murder conviction substituted with culpable homicide.
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22 November 1991 |
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Reported
Designation under s 3(2)(a)(ii) valid where prior proclamation and compensation established acquisition of road-use; appeal dismissed.
Public roads / national roads – proclamation and expropriatory effect – whether proclamation acquires "use" (road-rights/servitude). National Roads Act 1971 s 3(2)(a)(ii) – designation where use was acquired and compensation paid from National Road Fund. Onus in challenge to administrative designation – applicant must prove invalidity and may not shift burden to Minister to prove subjective opinion. Deeds Registries Act – transfers effected pursuant to s 31(4)(a) certificate valid when statutory designation in place.
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22 November 1991 |
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Court rejected duress defence and upheld death sentence for a premeditated, brutal prison murder; gang culture not mitigating.
Criminal law – Murder in prison – Strangulation and multiple stab wounds – Premeditation and cruelty as aggravating factors. Defence of necessity/duress – requirements and credibility assessment – unsupported claim of gang order rejected. Sentencing – prison subculture not mitigating absent evidentiary foundation that it reduced moral blameworthiness. Death penalty – appropriate where offence is deliberate, brutal, and offender poses continuing danger
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22 November 1991 |
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The appellant’s challenge to credibility and sentence failed; conviction and death sentence for deliberate murder affirmed.
Criminal law – Murder – Appeal against conviction and sentence – Appellate review of credibility findings; no misdirection where trial court’s acceptance of eyewitnesses was supported by evidence; sentence of death upheld where killing was deliberate, callous, firearm used, and aggravating factors (including prior violent convictions) overwhelmingly outweighed mitigation.
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21 November 1991 |
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Appeal dismissed: purchaser and corroborative evidence sustained conviction for selling heroin; alibi and sentence not upheld.
Criminal law – drugs – conviction for sale of heroin based on purchasers' and co‑accused evidence; accomplice evidence and contradictions considered but not fatal; alibi rejected; sentence confirmed
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21 November 1991 |
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Reported
Municipal park reservations for whites were reviewable; council’s exercise of discretion was not bona fide and was set aside.
Administrative law – review of municipal decision – Reservation of Separate Amenities Act 49 of 1953 – exercise of statutory discretion reviewable if mala fide, for improper purpose or without proper consideration; locus standi – Dalrymple principle for taxpayer; direct interest and injury to dignitas confer standing; Plascon‑Evans test for disputed facts.
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20 November 1991 |
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A voluntary, corroborated confession and supporting evidence upheld a murder conviction and death sentence; appeal dismissed.
Criminal law – admissibility of confession – voluntariness – allegations of torture and coercion. Murder – killing of police officer in planned armed ambush – corroboration of confession. Sentencing – aggravating and mitigating circumstances – death penalty upheld
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19 November 1991 |
