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Citation
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Judgment date
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| December 1993 |
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Reported
A judge may sue for defamation over criticism of judicial decisions that reasonably implies racial bias.
Defamation — natural and ordinary meaning including implied imputations; judicial criticism — whether a Judge may sue for defamation arising from criticism of judicial decisions; public policy and freedom of expression; contempt/criminal remedies do not oust civil action; Troughton v McIntosh considered but not followed.
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7 December 1993 |
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Reported
A defendant pleading truth or qualified privilege in defamation must prove it on a balance of probabilities.
Defamation — truth in public interest and qualified privilege — burden of proof — defendant must establish such defences on a balance of probabilities; media publications — no general newspaper privilege; duty/interest reciprocity required for qualified privilege; assessment of witness credibility and reliance on unverified hearsay.
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2 December 1993 |
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Reported
Persistent past breaches can defeat a contractual renewal right; "faithfully" requires objective appraisal of whole performance.
Lease – Right of renewal – Construction of condition "shall have faithfully carried out" – Spent breaches relevant; objective appraisal of whole performance required – Auditor's certificate delays (clause 6.6) found serious and persistent – Onus on lessee to prove entitlement to renewal – Clause 13.1 relates to cancellation, not renewal prerequisite.
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2 December 1993 |
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Reported
Suretyship naming a specific debtor cannot bind a different debtor without a formal amendment signed by the surety.
Property/Contract – lease validity – tenant misidentification by company registration number renders lease unenforceable unless cured by proper agreement; Cession – broad cession of rents in mortgage bond passes rights to rentals under subsequently valid lease; Suretyship – requires bilateral consent and formal amendment to substitute principal debtor; mere incorporation or related documents insufficient to alter written suretyship.
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1 December 1993 |
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Reported
Interest on loans created to fund dividend distributions is not deductible as expenditure incurred in producing income.
Income tax – s.11(a) – Deductibility of interest – purpose of borrowing decisive – loans created to satisfy declared dividends not incurred in production of income – group policy reallocation of loan components is administrative and does not convert non-deductible debt into deductible borrowing.
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1 December 1993 |
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Reported
A claim filed in a company's liquidation suspends prescription only until the final liquidation account is confirmed.
Prescription — Prescription Act s13(1)(g) — filing claim against company in liquidation creates an impediment delaying prescription; effect of Master's confirmation of final liquidation and distribution account (Companies Act s408) — impediment ceases on confirmation; suretyship accessory — prescription of principal debt determines surety's liability.
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1 December 1993 |
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Section B covered only the insured's rectification costs incurred during the policy period; no s156 substitutionary claim existed.
Insurance law — professional indemnity policy — Section A: third‑party liability for claims made during policy period; Section B: indemnity for insured's rectification costs — construction restricts Section B to costs incurred by insured during policy period — retroactive date and proviso requiring insured to prove negligence — s 156 Insolvency Act: substitutionary right requires insurer's obligation to insured and insured's liability to third party.
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1 December 1993 |
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Reported
A customer's purchase conveying a chance to win constitutes a subscription, rendering the respondent's promotional scheme a prohibited lottery.
Gambling Act 51 of 1965 – lottery – subscription/stake – whether chance conveyed with sale of goods constitutes subscription; Promotional schemes – inseparability of prize chance and purchased commodity; Contract in favour of third party – retailer payment to organiser as subscription; Section 10(b) exemption inapplicable where subscription present; Petroleum regulations issue unnecessary once scheme held unlawful lottery.
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1 December 1993 |
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Reported
A precipitate, short ultimatum before summary dismissal can render otherwise justified dismissals unfair; reinstatement possible without back-pay.
Labour law – unfair labour practice – summary dismissal following an illegal wildcat strike – fairness of ultimatum and adequacy of procedure – remedy: reinstatement appropriate but retrospective back-pay inappropriate as mark of disapproval.
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1 December 1993 |
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Appellate court upheld mitigated sentence because accused acted with substantially diminished criminal responsibility.
Criminal law – Sentencing – Appeal against sentence – discretionary exercise by trial court – sentence will only be altered if irregular, misdirected or disturbingly inappropriate; Criminal law – Diminished criminal responsibility (non-pathological/temporary) – psychiatric evidence admissible and may mitigate sentence under s.78(7); Criminal law – Homicide – private defence rejected; characterization as private execution; Appellate procedure – costs where State appeals under s.316B.
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1 December 1993 |
| November 1993 |
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Whether the appellant contracted personally or as agent; court found prima facie personal contracting and dismissed the appeal.
Contract law – agency – where a contracting party does not indicate representative capacity, prima facie inference of personal liability arises; rebuttal burden on alleged agent. Burden and standard of proof – prima facie case by claimant places a rebuttal burden on defendant; ultimate decision on balance of probabilities. Evidence – credibility findings, payment records, prior sworn statements and inherent probabilities relevant to determining contracting parties.
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30 November 1993 |
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Reported
Condonation for multiple, flagrant and unexplained appellate-rule breaches refused; appellants ordered to pay respondent’s costs including two counsel.
Appellate procedure – condonation – late filing of notice of appeal, record, power of attorney and security for costs – flagrant and unexplained non-compliance by attorneys – condonation may be refused irrespective of appeal merits – respondent’s interest in finality and prejudice from delay.
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30 November 1993 |
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Respondents failed to prove absence of justa causa for dishonoured cheques; applicant entitled to provisional judgment.
Negotiable instruments — provisional sentence on dishonoured cheques — necessity to examine underlying transaction (justa causa) — burden shifts to respondent to show on probabilities absence of justa causa — appellate correction where trial court relied on speculative inferences of third‑party fraud.
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30 November 1993 |
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Reported
A statutory right to "demolish" squatters' structures does not authorise burning or destruction of their movable property.
Statute — Prevention of Illegal Squatting Act 52 of 1951 — s 3B(1)(a) meaning of "demolish" — narrow construction: pull/tear down, not destruction by burning. Ouster clause s 3B(4)(a) inapplicable where demolition did not occur "under this section". Movables — temporary squatter structures may remain movable and belong to occupier. Damages — court may assess loss on best available evidence where direct proof is unavailable.
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30 November 1993 |
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Reported
Section 63(3) protects only pre-contractual representations, not insurer-imposed contractual warranties, so breach allowed repudiation.
Insurance law – Insurance Act s 63(3) – "Representation" means pre-contractual statement collateral to contract – Warranty/term in policy not a representation – Breach of warranty permits repudiation where s 63(3) inapplicable.
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30 November 1993 |
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Reported
Appellate court set aside substituted harsher sentences and remitted case for re-sentencing after correcting misassessment of alcoholism evidence.
Criminal law – sentencing – global versus separate sentences – appellate intervention; sentencing – treatment of expert evidence on alcoholism and rehabilitation – improper discounting of psychiatric/psychological evidence material to sentence; corrective supervision (korrigerende toesig) newly available and must be considered on re-sentencing; appellate court set aside substituted harsher sentences and remitted for fresh sentencing.
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30 November 1993 |
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Appellants' confessions were not proved voluntary; convictions and death sentences were set aside.
Criminal procedure – admissibility of confessions – voluntariness – onus on State to prove beyond reasonable doubt; trial‑within‑a‑trial procedure; improper admission of substantive confession content during State case; allegations of torture and third‑degree methods; failure to bring suspect before magistrate and non‑production of potentially relevant witnesses; appellate review and setting aside unsafe convictions.
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30 November 1993 |
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The applicant’s appeal increased sentences for police respondents convicted of abducting and murdering an innocent pedestrian.
Criminal law – Sentencing appeal under s 316B – Police officers convicted of abduction and murder – Political climate, demoralisation and inadequate training not mitigating where offence not in riot context – Sentences increased for brutality, planning and premeditation.
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29 November 1993 |
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A registered general plan showing a square creates public use rights and art 63 vests municipal control as a statutory servitude on the property.
Property law – private township created by registration of general plan – depiction of square on registered plan establishes public use; Deeds practice – general clause in transfer renders title subject to prior endorsements and plans; Municipal law – art 63 Ordinance 17/1939 confers statutory servitude and control/management in trust over streets and squares for public use.
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29 November 1993 |
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Psychopathy alone is not mitigating; where murder was planned and brutal, death sentences were appropriate and upheld.
Criminal law – sentencing – death penalty – whether antisocial personality disorder (psychopathy) is a mitigating factor – need for causal link between disorder and the offence. Sentencing – considerations of community protection and deterrence where offence is planned and brutal. Prison context – alleged subculture, frustration and influence as potential mitigation examined and rejected.
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29 November 1993 |
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Accomplice testimony corroborated by circumstances proved the appellant's identity; death sentence upheld.
Accomplice evidence – cautionary rule; corroboration by surrounding circumstantial evidence; identification proof beyond reasonable doubt; sentence – premeditated murder and death penalty affirmed.
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29 November 1993 |
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Reported
Appellant's automatism defence rejected; conviction upheld but sentence set aside and remitted for resentencing considering correctional supervision.
Criminal law – murder – plea of non-pathological criminal incapacity (sane automatism/irresistible impulse) – accused must lay factual foundation sufficient to create reasonable doubt – psychiatric evidence depends on reliability of accused's narrative – assessment of credibility crucial; Criminal procedure – appellate review of findings of fact and misdirections; Sentencing – appropriateness of correctional supervision (s 276(1)(h)) as alternative to imprisonment.
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29 November 1993 |
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Single‑witness evidence upheld for sale of two 'stoppe', but possession of 38 not proved; sentence reduced.
Criminal law – drugs – reliance on single witness evidence and assessment of credibility; proof of possession and linkage between small sale and larger stash; sentencing variation on appeal.
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29 November 1993 |
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Reported
An approved section 311 scheme can bind the Commissioner in respect of known tax liabilities if it does not prejudice the fiscus.
Companies Act s311 – schemes/arrangements – whether standard rescue schemes effecting deemed cessions fall within s311 and bind company and creditors; Revenue law – whether State/Commissioner can be bound by court-approved compromise under s311; Treasury/Exchequer powers to compromise or write off State claims; Distinction between known/ascertainable tax liabilities and contingent/unknown tax claims for purposes of scheme binding.
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26 November 1993 |
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Appeal allowed: insufficient evidence that the appellants shared a common purpose or actively participated in the murder.
Criminal law – Common purpose – Prior agreement to kill – Mere presence or attendance with concerned residents insufficient to infer common purpose – Necessity of proving active participation beyond reasonable doubt – Assessment of inconsistent eyewitness evidence.
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26 November 1993 |
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Court upheld trial judge’s factual assessment of contract price and remedial deductions; appeal dismissed with costs.
Contract law – tacit terms – valuation of contract work as fair and reasonable value less payments and cost of remedial work. Evidence – assessment of quantum – role of pleadings, witness evidence and concessions. Remedies – deduction of jointly compiled "snagging list" as basis for remedial-cost subtrahend. Appeal – factual findings and in loco inspection entitled to deference.
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25 November 1993 |
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Fourth appellant's conviction and death sentence affirmed; co‑accused sentences reduced by ordering concurrency due to subordinate roles.
Criminal law – Murder and armed robbery – Identification and forensic evidence (palm print, eyewitness and co‑accused testimony) – Leadership of gang – Death sentence review – Aggravating v mitigating factors – Youth and subordination of co‑accused – Concurrent versus cumulative sentences.
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25 November 1993 |
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Appellants' deep-rooted belief in witchcraft can mitigate death sentences; death replaced by life imprisonment.
Criminal law – Sentencing – Whether belief in witchcraft can operate as mitigating factor in murder sentencing; Assessment of credibility – subjective belief must be evaluated against all evidence; Sentencing discretion – substituting life imprisonment for death in cases of multiple, brutal murders; Community interest and deterrence weighed against cultural context of witch-hunts.
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23 November 1993 |
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Death sentence upheld for hired killers; mitigating factors insufficient to avoid capital punishment.
Criminal law – Sentencing – Hired killers and capital punishment; aggravating features: premeditation, payment, attack on defenceless victim; mitigation: youth and provocation insufficient; co-accused's lighter sentence not determinative.
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23 November 1993 |
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Death sentence upheld where brutal rape‑murder and strong aggravating factors outweighed limited mitigation.
Criminal law – Sentencing – Murder following rape – Assessment of mitigating factors (youth, immaturity) versus aggravating factors (brutality, intent to prevent identification, prior convictions, lack of remorse) – Whether death sentence is appropriate.
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22 November 1993 |
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Appeals dismissed — eyewitness and forensic evidence and common purpose supported murder and aggravated robbery convictions.
Criminal law – Identification evidence – eyewitness testimony corroborated by fingerprint evidence supports conviction. Evidence – extra‑curial confession admitted for limited purpose but repudiated; minimal weight. Criminal liability – common purpose and dolus eventualis established for co‑accused. Procedure – admissibility and voir dire issues considered but no prejudicial misdirection. Sentencing – trial court’s discretion not disturbed on appeal.
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22 November 1993 |
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Death sentence upheld for premeditated, brutal robbery-murder of an elderly woman at home; moratorium argument rejected.
Criminal law – Murder and robbery with aggravating circumstances – Premeditated fatal attack on elderly victim in her home – Medical evidence of manual strangulation (hyoid fracture) – Sentencing: mitigation (youth, first offender) outweighed by aggravation (brutality, premeditation, vulnerability) – Death sentence upheld; executive moratorium on executions irrelevant to sentencing.
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22 November 1993 |
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The appellant's convictions and death sentences affirmed: accomplice evidence and pointing-out admissible and reliable.
Criminal law – corroboration of accomplice evidence – inconsistencies and omissions do not preclude reliability where supported by pointing-out and surrounding circumstances. Evidence – admissibility of pointing-out – failure to inform accused of right to legal representation does not automatically render pointing-out inadmissible; depends on facts and credibility. Sentencing – death penalty – justified where murders are premeditated, prolonged, callous, involve helpless victims and appellant played leading role despite youth and clean record.
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19 November 1993 |
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Planned abduction and burning of victim justified death sentence; duress and other mitigation rejected.
Criminal law – murder – abduction from victim’s home and burning in motor vehicle – planning, preparation and active participation establish extreme culpability; duress and youth/poverty mitigation insufficient to avoid death sentence; aggravating factors outweigh mitigation in exceptionally brutal cases.
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19 November 1993 |
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Reported
Whether the 10‑day limit in section 43(2) begins on making (delivering/posting) a section 35 application or on its receipt by the inspector.
Labour relations — interpretation of statutory time limits — section 43(2) ten‑day period begins on applicant's making (delivery/posting) of section 35 application rather than inspector's receipt; industrial court discretion under section 43(4)(b) — substantial compliance and absence of prejudice may cure procedural irregularity.
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15 November 1993 |
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Appeal against murder conviction dismissed; credibility findings and circumstantial probabilities supported conspiracy conviction.
Criminal law – Murder – conspiracy/contract killing – involvement of driver/occupant in planning and aftermath. Evidence – credibility of accomplice and accused – evaluation of inconsistent statements and surrounding probabilities. Circumstantial evidence – inferences from conduct after the attack and attempts to use deceased's bank card. Appeal – discretionary review of factual findings and assessment of probabilities; conviction upheld.
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15 November 1993 |
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Reported
A wholly government‑owned company's property is not state property; corporate veil not pierced absent fraud or impropriety.
Admiralty jurisdiction — s 6(1) choice of law — Roman‑Dutch law applies where English admiralty jurisdiction pre‑1890 did not cover attachment to found jurisdiction; Attachment to found jurisdiction — distinction between action in rem and action in personam; Corporate personality — company distinct from shareholder including sole state shareholder; Piercing corporate veil — exceptional remedy requiring fraud/sham/improper conduct; Instrumentality doctrine — tests for treating an entity as state organ do not automatically convert company property into state property.
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12 November 1993 |
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Reported
Composite appeal fees are recoverable; taxing master’s global allowances not palpably wrong, review dismissed with costs.
• Taxation of costs – advocates’ fees on appeal – composite fee for heads, preparation and argument ordinarily allowed; separate fee for heads not ordinarily recoverable; Ocean Commodities applied. • Review of taxing master – standard: whether allowance is palpably wrong. • Reasonableness of hourly billing for party-and-party taxation; excessive claimed hours legitimately open to criticism. • Disallowance/reduction of discrete items (copying; substitution application) can stand if reasonable.
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12 November 1993 |
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Reported
Amendment refused where proposed limitation was inessential and could not prevent prior‑publication anticipation; appeal dismissed.
Patents — amendment of specification — judicial admissions in pleadings binding — amendment refused where proposed integer is inessential and cannot distinguish over prior disclosure — discretion to refuse deletion of matter taken from third‑party paper — anticipation by prior publication.
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12 November 1993 |
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Single-witness identification upheld, alibi rejected; aggravating factors and extreme cruelty warranted death sentences, appeal dismissed.
Criminal law – identification – single witness identification – cautionary rule and factors supporting reliability (close contact during struggle, parade identification, corroborative circumstantial evidence). Criminal law – alibi – inherent improbability and mendacity as grounds for rejection. Sentencing – aggravating factors (previous convictions, subsequent offences, premeditation, cruelty) – death sentence warranted in extreme cases.
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9 November 1993 |
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Appeal against death sentence succeeded; death penalty substituted with 25 years' imprisonment due to mitigating circumstances.
Criminal law – sentencing appeal – review of death sentence – mitigation (youth, deprivation, limited education, non‑violent antecedents) versus aggravation (premeditated, multiple stab wounds, elderly victim) – appellate substitution of 25 years' imprisonment.
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9 November 1993 |
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Appeal dismissed: identification upheld and social/psychological mitigation insufficient to avoid death sentences.
- Criminal law: identification evidence – credibility of eyewitnesses and sufficiency for conviction. - Sentencing: mitigating factors – first-offender status, absence of premeditation, deindividuation (crowd influence), and communal unrest. - Expert evidence: limits of general socio-psychological propositions as mitigation without specific linkage to accused conduct. - Capital punishment: death sentence upheld where crimes are exceptionally brutal and aggravating circumstances outweigh mitigation.
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4 November 1993 |
| September 1993 |
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Reported
A 'soft' closed-shop award was within the arbitrator's powers and not vitiated by misconduct, public policy or inevitable illegality.
Arbitration – scope of submission – meaning of 'closed shop' as a generic term encompassing hard and soft forms; Arbitration Act s 33(1) – setting aside awards only for misconduct, gross irregularity or exceeding powers; Labour law – unfair labour practice (para (j)) and public policy – courts should be cautious to declare awards contrary to public policy; Employment Act ss 18–19 – alleged criminality in implementing closed-shop not inevitable; duty to implement arbitral awards and limited judicial interference.
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30 September 1993 |
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Reported
Section 113(1) does not displace common-law rights to retract guilty pleas induced by duress and imposes no onus beyond reasonable doubt.
Criminal procedure — Plea of guilty — s 112 and s 113(1) Criminal Procedure Act 51 of 1977 — scope of "proceedings under section 112" includes both s 112(1)(a) and (b) — s 113(1) does not impose an onus on accused — test is reasonable doubt — s 113(1) does not oust common-law right to retract plea induced by duress — Britz principle applies after conviction but before sentence.
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30 September 1993 |
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Reported
Conditional licence payment in international reorganisation arose from a non‑South African source and was not taxable in South Africa.
Income tax — source of receipts — originating cause to be ascertained from factual matrix — payment under international reorganisation for conditional licence to manufacture — business predominantly conducted in Europe — payment not from a South African source; contractual rights and patents exercised in West Germany; Lever Bros, Epstein, Black applied.
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30 September 1993 |
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Reported
An attorney struck off for obtaining credit during provisional sequestration and making false sworn statements to the court.
Insolvency law and professional discipline — obtaining credit during provisional sequestration (s 137(a) Insolvency Act) — statutory perjury in judicial proceedings — fitness to practise — striking off — appellate review of discretionary disciplinary orders.
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30 September 1993 |
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Reported
A hole‑in‑one display did not create a contract with an amateur; no reasonable person would assume the prize was open to amateurs.
Contract – offer and acceptance – advert or display of prize; consensus ad idem – subjective intention v objective test; whether reasonable person in offeree’s position would be misled; application of Rules of Amateur Status and surrounding circumstances; evidence of public announcements limiting prize to professionals.
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30 September 1993 |
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Confessions were admissible and established robbery and rape; murder reduced to attempted murder because a fatal wound predated appellant's participation.
Criminal law – admissibility and reliability of extra-judicial confessions – apparent inconsistencies do not necessarily render confession false in essence if reasonably explicable. Criminal law – joint enterprise and timing of participation – application of S v Motaung: where accused may have joined after fatal wound inflicted, murder may reduce to attempted murder. Evidence – interaction of confession content and medical evidence in proving homicide. Sentencing – substitution of death sentences with lengthy determinate terms and rules on concurrency. Criminal procedure – appeal under s316A against convictions and sentences based on confessions.
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30 September 1993 |
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Reported
Bank failed to prove transfer of ownership; documents masked a loan/pledge, appeal dismissed with costs.
Property law – movable property – transfer of ownership – requirement of animus transferendi and animus accipiendi; constitutum possessorium – elements and susceptibility to abuse; sale-and-resale vs disguised loan/pledge; rei vindicatio – proof of ownership; costs and special leave for cross-appeal.
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29 September 1993 |
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Reported
Contractor not entitled to extra payment for extended time-related costs absent specific variation; condonation refused.
Contract law – Building contracts – Variations – Clause 3(iii) limited to specific variations in Schedule of Quantities; extensions of time under clause 17(iii) are indulgences, not variations; Bill No 1 (time-related items) adjusted under clause 49 by direct-ratio when contract amount altered; no double recovery; condonation for late appeal refused where no prospects of success.
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29 September 1993 |
