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Citation
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Judgment date
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| December 1992 |
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Reported
The respondent was wrongly charged under the incorrect anti‑doping rule, rendering the convictions invalid.
Administrative/contractual discipline — domestic tribunal — Rule 53 not peremptory where applicant has tribunal record; ordinary motion permitted. Sport regulation — anti‑doping Rule 78 — split sampling; Rule 78.8 requires proof from both initial and reference analyses; Rule 78.7.a applies to single analysis only. Judicial review — tribunal’s misapplication of its rules and consequent error as to scope of enquiry reviewable despite internal 'finality' clause.
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1 December 1992 |
| November 1992 |
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Reported
An alcoholic blackout causing amnesia does not establish criminal incapacity without inability to appreciate wrongfulness or act accordingly.
Criminal law — criminal capacity — non‑pathological incapacity from alcohol (blackout) — blackout produces amnesia but not automatism; does not negate ability to appreciate wrongfulness or to act accordingly absent evidence of loss of control; weight of psychiatric evidence; significance of accused’s conduct before and after offences. Criminal procedure — s146 Criminal Procedure Act — duty to give reasons for majority factual findings by assessors; appellate reassessment where reasons absent or unclear.
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30 November 1992 |
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Reported
Majority upholds death sentence for a brutal murder during robbery after weighing aggravating factors over mitigation.
Criminal law – Sentencing – Murder with robbery – Assessment of mitigating and aggravating factors – Role of age, education, marital status, employment, prior convictions, police reservist status and intoxication – Purposes of punishment (deterrence, retribution, rehabilitation) – Effect of amended s 277 on the death penalty’s deterrent value.
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30 November 1992 |
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Conviction of rape set aside where trial judge misdirected on medical evidence and credibility, leaving reasonable doubt.
* Criminal law – rape – issue of consent where intercourse admitted but consent disputed; medical evidence and bruising – proper interpretation of doctor’s testimony. * Credibility assessment – improper reliance on absence of material contradictions and praise for performance under cross‑examination is a misdirection. * Appellate review – where trial judge materially misdirects, appellate court may reassess evidence; application of R v Difford test and benefit of doubt to accused.
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27 November 1992 |
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Reported
Court affirms death sentences: planned, ideological revenge killings of innocent civilians not mitigated by provocation or beliefs.
Crime — Multiple murders; premeditated shooting of innocent civilians from a vehicle — Provocation not established — Membership of extremist groups may explain motive but is not mitigation — Leadership and planning aggravate — Death sentence affirmed.
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27 November 1992 |
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Reported
Liquidators may convene meetings to consider a compromise provided creditors receive full disclosure, including subordination details and s424(1) implications.
Companies law — compromise under s311 — convening meetings; Insolvency — factual insolvency vs commercial insolvency; Director liability — s424(1) requires proof of dishonest/reckless conduct; Subordination agreements — enforceability in liquidation and relevance to creditors' prospects; Disclosure — required particulars under s312(1).
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27 November 1992 |
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Reported
Conviction founded chiefly on alleged pointing-out was unsafe due to unreliable police testimony and reasonable doubt.
* Criminal law – conviction based on alleged 'pointing out' – credibility of police evidence – omissions and inconsistent pocketbook entries may render pointing-out evidence unsafe.
* Criminal procedure – Ministerial referral under s 19 General Law Amendment Act – Court's powers equivalent to appeal against conviction.
* Evidence – distinction between discovery by police and discovery attributable to accused; visible, unhidden items cannot be said to have been discovered solely by accused's pointing out.
* Credibility – uncontradicted allegation of police assault and procedural irregularities materially undermine prosecution case.
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27 November 1992 |
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A will was upheld where a nurse's probable signature and a third party's oral confirmation established testamentary execution and intent.
Wills — testamentary formalities — attestation and signature — face of document regularity and onus of proof of invalidity; Wills — oral confirmation by third party — oral evidence can establish testamentary confirmation post-execution; Evidence — credibility and probabilities — roster and medical records relevant to timing of execution; Procedure — leave to appeal — enquiry under s 20(2)(a) Supreme Court Act and appropriateness of Appellate Division vs Full Bench.
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27 November 1992 |
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Reported
The applicant bank may seize only assets specially mortgaged to it; it cannot seize all company assets.
Statutory interpretation — Land and Agricultural Bank Act s63(1) — meaning of "specially mortgaged" — limits on extrajudicial seizure and sale of company assets — distinction from s62(1) permitting seizure even if not specially mortgaged.
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27 November 1992 |
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Condonation refused where appeal lacked realistic prospects; alias in schedule does not invalidate temporary immunity.
Condonation — non-compliance with rules — explanation and prospects of success decisive; Indemnity Act s.1 — temporary immunity attaches to identified person, not to literal correctness of schedule name; assumed name does not per se vitiate immunity; questions of revocation for misrepresentation not decided.
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27 November 1992 |
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Reported
Appeal dismissed: court lacked jurisdiction—respondent not ordinarily resident and costs claim situated abroad.
Sequestration jurisdiction — Insolvency Act s 149(1) — ordinary residence and situs of property; incorporeal movables (taxing master’s certificate) follow the debtor’s domicile; appeal under s 150(1) lies to Appellate Division without leave; provisional sequestration improperly granted where jurisdiction unproven.
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27 November 1992 |
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Appellate court reduced sentence from 15 to 10 years after correcting speculative, unsupported psychiatric reasoning by trial judge.
Sentencing — murder with extenuating circumstances — appellate interference with sentence where trial judge’s reasoning contains speculative psychiatric findings; mitigation: severe visual impairment, alcohol impairment, impulsivity; requirement for expert evidence before finding dangerousness/personality disorder.
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27 November 1992 |
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Death sentence upheld where the appellant, leader of an armed robbery, deliberately shot a police constable; mitigation insufficient.
* Criminal law – murder of police officer – identification and corroboration – leader of armed robbery in continuous possession of firearm. * Sentencing – Criminal Law Amendment Act 107 of 1990 – duty to consider afresh whether death is the only appropriate sentence; weighing of aggravation (deliberate close‑range killing of a constable, public danger, recurring violent crime) against mitigation (age, background, rehabilitation). * Evidence – eyewitness identification and multiple police witnesses corroborating possession, seizure and linkage of weapon to fatal shot.
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27 November 1992 |
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Appellant's confession upheld as credible; convictions and death sentences for double murder during robbery affirmed.
Criminal law – confession admissibility and weight; assessment of alibi and corroboration; appeal procedure and counsel omissions; sentencing – appropriateness of death penalty for premeditated robbery‑murders involving breach of trust.
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27 November 1992 |
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Majority substitutes 25 years' imprisonment for death sentence, finding youth and first‑offender status outweigh not‑exceptional aggravation.
* Criminal law – Capital punishment – Death sentence reserved for cases of exceptional seriousness; balancing of aggravating and mitigating factors.
* Sentencing – youth and absence of prior convictions as mitigating factors reducing appropriateness of death penalty.
* Mens rea – distinction between dolus directus and dolus eventualis relevant to sentence severity.
* Multiple offences – consideration of concurrent sentences and avoidance of double punishment.
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27 November 1992 |
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Appellants' convictions set aside where trial judge's hostile questioning created appearance of pre‑judgment and failure of justice.
Criminal procedure — judicial questioning — limits on judge's interrogation of accused — appearance of bias — justice must be seen to be done — cumulative irregularities amounting to failure of justice — convictions and sentences set aside.
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27 November 1992 |
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Confession admissible and murder conviction upheld, but death sentence substituted with 20 years’ imprisonment, concurrent with 12 years.
* Criminal law – admissibility of confession – alleged improper inducement by police – credibility findings of trial court upheld.
* Criminal law – murder – proof of dolus directus through violent attack and strangulation/smothering evidence.
* Sentencing – capital cases – whether death sentence is only appropriate punishment – substitution with lengthy imprisonment where mitigation exists.
* Evidence – use of magistrate-court plea record (s 119 Criminal Procedure Act) as admissible evidence.
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27 November 1992 |
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Appeal succeeds: death sentences for appellants set aside for 20-year terms where foresight of death was not clearly established.
Criminal law – Murder – conviction based on common purpose and dolus eventualis – whether foresight of death proved beyond reasonable doubt; sentencing – appropriateness of death penalty versus lengthy imprisonment where foreseeability of death is doubtful.
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27 November 1992 |
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Appeal succeeds where evidence did not prove robbery or theft; conviction and sentence set aside.
Criminal law – robbery versus theft – sufficiency of evidence to establish robbery or theft; deception/misrepresentation as basis for theft; apposite standards for appellate interference with substituted convictions.
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27 November 1992 |
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Appellate court reduced an excessive cumulative sentence, substituting and ordering concurrency to avoid an unduly harsh total imprisonment.
Sentencing — appellate interference — cumulative sentences — when cumulative effect is disturbingly inappropriate; long terms (>25 years) exceptional but not prohibited; concurrency and partial concurrency to achieve a fair total sentence; effect of abolition of mandatory death penalty on long-term imprisonment.
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27 November 1992 |
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Death sentence set aside; 20-year concurrent term where murder involved dolus eventualis during burglary.
Criminal law – Murder – dolus directus v dolus eventualis – sentence review; sentencing factors – aggravation (armed home invasion, defenceless victim, greed) v mitigation (no premeditation, youth, limited record) – substitution of death sentence with lengthy imprisonment.
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27 November 1992 |
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Imprisonment was inappropriate for a small-scale cannabis dealer; substantial suspended sentence substituted for rehabilitation and mitigation.
Sentencing — cannabis dealing — appropriateness of imprisonment for small-scale dealer; mitigation: poverty, dependents, remorse; restored judicial discretion after legislative change; appellate substitution of sentence.
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27 November 1992 |
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Custodial sentence upheld for calculated embezzlement and cheque fraud despite appellant’s family circumstances.
Sentencing — Breach of trust and embezzlement by bank employee — Multiple, calculated offences over time; sentencing discretion; deterrence and public confidence in financial institutions; first‑offender status and family circumstances — alternatives to imprisonment (fine, suspension, community service) and their suitability when offender lacks means.
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27 November 1992 |
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Appeal against sentence for planned stock theft dismissed; sentences not shockingly severe and equal treatment of co‑accused appropriate.
Criminal law – Stock theft – Sentence – Appeal against sentence – Appellate court will not interfere absent impropriety; planned, greed‑motivated thefts justify robust sentences – Parity of sentences and abuse of trust considered.
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27 November 1992 |
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Reported
Participant who ceased active participation and abandoned intent was not liable for murder but guilty of attempted murder.
Criminal law – Common purpose – Conduct-based common purpose – Liability requires shared intent and active association – Dissociation requires abandonment of intent; mere cessation of activity insufficient – Onus on prosecution; reasonable doubt entitles accused to benefit.
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27 November 1992 |
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First appellant’s sentence upheld; second appellant’s sentence reduced to 15 years for lesser culpability.
• Criminal law – murder – contract-type killing – planner versus recruited helper – comparative blameworthiness in sentencing.
• Sentencing – appellate intervention where trial court errs in equating culpability and misassesses mitigation.
• Evidence – early confession and influence as mitigating factors; motive (avoidance of maintenance) relevant to culpability.
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27 November 1992 |
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Reported
Section 15A(1) does not impliedly exclude the right to be heard; summary dismissals remain subject to audi.
Administrative law – procedural fairness – audi alteram partem – whether section 15A(1) of KwaZulu Public Service Act impliedly excludes right to be heard – statutory silence insufficient to oust audi – involvement of Cabinet does not negate duty to hear representations.
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26 November 1992 |
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Reported
Police who intentionally shoot a fleeing arrestee without adequate warning are civilly liable; contributory negligence unavailable against intentional wrongdoing.
Police use of force – statutory justification under s 49(1) Criminal Procedure Act – burden on police to prove warnings and necessity; warnings/warning shot required where reasonably possible; intentional unlawful shooting attracts civil liability; Apportionment of Damages Act s 1(1)(a) not available against intentional wrongdoer.
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26 November 1992 |
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Appellate court finds no proof of direct intent to kill; death sentence commuted to life imprisonment.
* Criminal law – murder – distinction between dolus directus and dolus eventualis – whether direct intent to kill proven beyond reasonable doubt.* Sentencing – appropriateness of death penalty – impact of prior convictions, premeditation and vulnerability of victim.* Appeal under s19(12) of Act 107/1990 – appellate reassessment of sentence where conviction is not impugned.
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26 November 1992 |
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Reported
Displaying registered trade marks in a pharmacy computer comparison system is not infringement absent competing trade or exploitation of goodwill.
Trade marks – Interpretation of s 44(1)(b) – "use in the course of trade" – confined to trade in goods/services for which mark is registered or closely associated trades – display of marks in pharmacy computer system for price comparison not infringement where no competitive exploitation of proprietor's goodwill.
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25 November 1992 |
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Reported
Whether the applicant could reserve factual issues post-acquittal and admissibility of incriminating inquest/prior-trial evidence.
Criminal law – common purpose – whether existence of unlawful common purpose is a question of law or fact; Criminal procedure – section 319 reservation – limits on prosecution reserving questions after acquittal; Evidence – privilege against self-incrimination – effect of inadequate inquest rulings and cautions; Evidence – admissibility of prior-trial testimony of police witnesses; Remedy – discretion to order retrial where excluded evidence should have been admitted.
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25 November 1992 |
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Advanced age may mitigate against the death sentence even for exceptionally gruesome, premeditated murder.
Criminal law – Capital punishment – Whether death sentence only proper where murder is premeditated and exceptionally gruesome – Advanced age as mitigating factor – Belief in ancestral spirits not mitigating – Roles of instigator and actual killer relevant to aggravation.
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25 November 1992 |
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Reported
A two-year post‑employment restraint was enforceable to protect the employer's trade connections; competitor liability was not established.
Restraint of trade – enforceability – employer’s protectable interest in trade connections and customer goodwill – employee’s onus to show unreasonableness; duration and area assessed by reasonableness test; competitor not liable absent proven delict (procurement/unfair competition).
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24 November 1992 |
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Appellate court upheld conviction and sentence where accused’s explanation for possession of a stolen, fraudulently-registered vehicle was implausible.
* Criminal law – theft of motor vehicle – possession of stolen property – whether accused’s explanation reasonably possibly true; use of physical evidence (engine/chassis alterations) and falsified registration documents to prove theft. * Credibility – appellate deference to trial court’s findings where conflicting evidence and surrounding circumstances support rejection of accused’s version. * Sentencing – seriousness of motor-vehicle theft, commercial use and falsified registrations as aggravating factors.
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24 November 1992 |
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Reported
Conviction for murder upheld; death sentence set aside and replaced with 20 years’ imprisonment, antedated to 29 May 1991.
* Criminal law – murder – reliance on eyewitness testimony and medico-legal evidence to reject accidental rock-fall defence. * Expert evidence – mining investigations – necessity of scene inspection; weight of expert reports. * Criminal procedure – failure to call third-party investigator (inspector of mines) not irregular where evidence is otherwise conclusive. * Sentencing – aggravating and mitigating factors; requirement to prove aggravating motive (racial hatred) beyond reasonable doubt; substitution of death sentence with lengthy imprisonment.
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24 November 1992 |
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Appellants acted with common purpose and intent to kill; appeal dismissed and death sentences upheld.
Criminal law – appeal after re‑opening of trial (s 316/316A) – evaluation of eyewitness credibility; common purpose and dolus directus in murder; forensic corroboration of stabbing and blunt‑force head injury; appropriateness of death sentence given aggravating and mitigating factors.
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23 November 1992 |
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Death sentences upheld where murders were cold‑blooded, premeditated and aggravating factors outweighed mitigation.
* Criminal law – murder – sentencing – whether death sentence appropriate where killings were cold‑blooded and, in one case, premeditated.
* Sentencing – balancing aggravating and mitigating factors – youth, antecedents, intoxication versus planning, lack of provocation, and danger to public.
* Intent – direct intent or dolus eventualis and moral blameworthiness in close‑range shootings.
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23 November 1992 |
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Death sentences set aside; court substituted lengthy imprisonments after weighing mitigating and aggravating factors.
Criminal law – Murder – Appropriateness of death sentence – Mitigating factors (provocation, perceived threat, first offender status) versus aggravating factors (multiple unnecessary shots, dolus directus) – Differentiated imprisonment substituted for death.
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23 November 1992 |
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Court upheld death sentences for appellants who premeditatedly and brutally murdered elderly victims during armed robbery.
Criminal law – Murder – Premeditated, armed robbery‑related killings of elderly, unarmed victims – Aggravating factors: planning, motive for gain, brutality, prior convictions – Mitigation insufficient – Death sentence upheld for purposes of deterrence and retribution. |
23 November 1992 |
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Appellants' murder convictions upheld; death sentences set aside and replaced by concurrent 25-year terms.
Criminal law – Murder – common purpose liability established by joint action and ballistic/eyewitness evidence; Political violence as mitigating circumstance; Death sentence substituted where mitigation rendered it not the only appropriate punishment; Sentences ordered to run concurrently.
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20 November 1992 |
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Reported
An interlocutory discovery ruling refusing disclosure of a police docket was held non-appealable; leave to appeal dismissed with costs.
Civil procedure – appealability – meaning of "judgment or order" under s 20(1) Supreme Court Act; interlocutory rulings vs final orders; discovery – privilege over police dockets and witness statements; effect of Appeals Amendment Act 105 of 1982 on interlocutory appeals.
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20 November 1992 |
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Reported
A valid lessee renewal option rendered the long-term agricultural lease void under statutory prohibition; "market-related" limits were not vague.
Agricultural land — Subdivision of Agricultural Land Act s3(d) — long-term lessee-renewable leases — validity of renewal option; Contract law — contractual certainty — "market related prices" not void for vagueness; Arbitration — arbitration clause operative to fix rent within contractual limits; Severability — invalid option renders lease void under statutory prohibition; Forestry practice — operational acts do not render future rent indeterminable.
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19 November 1992 |
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Appellant’s youth and clean record insufficient to avoid death sentence for premeditated, brutal murder during robbery.
* Criminal law – Murder during robbery – Premeditation, use of firearm, brutal conduct and vulnerable victim as aggravating features. * Sentencing – Youth and lack of prior convictions not decisive; death sentence justified where aggravating factors prevail. * Criminal procedure – Allegation of judicial bias rejected; trial conducted fairly.
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19 November 1992 |
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General admissions unconnected to pleaded particulars cannot sustain convictions on multiple specific theft counts.
Criminal procedure — particulars of charge — convictions cannot rest on vague or general admissions not linked to pleaded particulars (s84, s106(4) Criminal Procedure Act).; Criminal law — conspiracy v attempt — conspiracy established by inference from conduct; reconnaissance/looking for targets does not constitute attempt.; Evidence — circumstantial and co‑accused evidence may suffice to prove conspiracy despite disavowal by one accomplice.
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19 November 1992 |
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Reported
A development contribution under s 51(4)(a) is payable when determined, not deferred until the owner exploits rezoning.
Town-planning levies – s 51 development contribution – timing of payment under s 51(4)(a) – whether payment deferred until owner exploits rezoning; s 51(6)(g) suspension on objection presupposes existing liability; s 51(9) as embargo rather than suspensive condition.
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12 November 1992 |
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Reported
Appellate court sets aside sentence and remits for corrective supervision due to sentencing misdirection and suitability of treatment‑based sanction.
Sentencing — corrective supervision (korrektiewe toesig) available where proclaimed; appellate intervention where sentencing court misdirected; procedural requirements for reports and testimony; suitability of corrective supervision versus imprisonment for offenders with treatable personality disorders.
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12 November 1992 |
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Reported
Appellate court set aside custodial sentences after finding misdirection on compulsion and remitted for correctional supervision.
Criminal law – Sentencing – Sexual offences against minors – Trial court misdirection about compulsion vitiating sentence – Weight of rehabilitation and extra‑custodial psychotherapy – Correctional supervision (s 276(1)(h) CPA) as appropriate community‑based sentence – Appellate power to impose or remit for new sentencing options after commencement.
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6 November 1992 |
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Reported
Trust is not a "person" under the Income Tax Act; trustees cannot be taxed as representative taxpayers on undistributed income that has not accrued to beneficiaries.
* Tax law – Income Tax Act 58 of 1962 – meaning of “person” and “taxpayer” – trusts lack legal personality and are not "persons" under the Act.
* Tax law – Charging provision (s 5(1)) – income must be received by or accrued to a person; trustees taxable only where income accrues to or is attributable to a person.
* Tax law – Representative taxpayer (s 95) – trustee is representative taxpayer in respect of trust income accruing to beneficiaries; undistributed income accumulated to capital that has not accrued to beneficiaries is not taxable via trustees under s 95(1).
* Statutory interpretation – cannot treat a trust as an autonomous "taxable entity" absent express legislative provision; later amendments (1991) do not affect 1984–1986 assessments.
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5 November 1992 |
| September 1992 |
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Appeal against death sentence dismissed; alleged belief in witchcraft not a mitigating factor for brutal robbery-murder.
Criminal law – murder during robbery, arson, rape and kidnapping; common purpose; mitigation – alleged belief in witchcraft not established; brutality and prior convictions justify death sentence.
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28 September 1992 |
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Reported
Owner proved title on appeal; respondent’s contractual lien defeated by prior cession of its claims to a bank.
• Property law – rei vindicatio – proof of title – production of original title deed vs uncertified copy in motion proceedings.
• Contractual remedies – debtor‑and‑creditor lien – effect of cession of claims to bank (cession in securitatem debiti) on lien.
• Cession – cedent’s surrender of book debts and claims divests cedent of right to enforce those claims against third parties.
• Joinder – cessionary bank not entitled to be joined where it never possessed subject property.
• Costs – consequences of failing to tender admissible proof of ownership; subsequent rectification on appeal.
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28 September 1992 |
