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Citation
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Judgment date
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| December 1994 |
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Reported
An innocent contractor may enforce unpaid interim architect certificates after cancelling for the employer's breach.
Building contracts – interim architect certificates – nature and effect: certificates create accrued debts enforceable when unpaid though not conclusive on quality/value; Distinguishing Thomas Construction: enforcement depends on which party caused cancellation; Clause 23 (contractor's determination) preserves accrued rights and does not render prior interim certificates dependent on executory performance; innocent contractor who cancels for employer's breach may sue on prior interim certificates; Suretyship/mortgage bond claims based on ceded architect certificates enforceable.
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1 December 1994 |
| November 1994 |
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Reported
An employer must consult in good faith over retrenchment but may withhold confidential information reasonably.
Labour law – retrenchment – duty of prior consultation arises when retrenchment is contemplated – consultation in good faith – scope depends on circumstances – employer may withhold trade secrets or confidential information and may require confidentiality undertakings – refusal to disclose not automatically unfair.
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30 November 1994 |
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Reported
Whether delivery of a share certificate is required for valid cession of shares; court held it is not, ordering rectification under s115.
Companies law – cession of shares – whether delivery of share certificate is required for valid cession – delivery rule is evidential not substantive; rectification of members register (s115) ordered; prescription and cancellation defences considered.
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30 November 1994 |
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Reported
The applicant’s association constituted a statutory charitable trust under the 1988 Act, empowering the Master to act.
Trusts – Charitable trust – Requirement of ascertainable trust res – Audited financial statements and admissible extrinsic evidence may identify trust property; Trust Property Control Act 57 of 1988 – Definition of "trust" and "trust instrument" – written notarial deed qualifies; statutory phrase "by virtue of" to be construed broadly; Master’s investigatory powers under s.16(2) of the 1988 Act – valid exercise.
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30 November 1994 |
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Reported
The respondent bank must prove sec 79 protection; sec 79 covers same-bank branches and 'not transferable' crossed cheques.
Bills of Exchange Act s 79 – statutory protection for bankers – must be interpreted as statute not merely as implied contractual term; banker bears onus to prove payment was in good faith and without negligence. Crossed cheques – collecting and paying banker may be branches of same bank; s 79 protection still available. Non-transferable crossed cheques – s 79 applies despite potential anomalies; negligence limits protection.
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30 November 1994 |
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Reported
Applicant failed to establish statutory entitlement to immediate scheme admission; fresh evidence on appeal was refused and appeal dismissed.
Medical Schemes Act s20(1)(f) – admission without waiting period – continuous two‑year membership or dependant status – evidentiary weight of scheme membership certificates. Interpretation – phrase "necessitated by his changing employment" (construction left open where unnecessary). Civil procedure – reception of further evidence on appeal – requirements that evidence be weighty, material, presumably true and practically conclusive. Contract and estoppel claims to enforce scheme admission not established.
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30 November 1994 |
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Convictions for ten murders upheld; duress rejected and death sentences postponed for constitutional consideration.
Criminal law – murder – ambush killing of minibus passengers – evidence and confession – rejection of duress defence; corroboration by pointing out of weapons and ballistic evidence. Criminal procedure – alibi and credibility – false alibi, contradictions and improbabilities. Sentencing – death penalty – mitigating factors (political unrest, youth, first offender) insufficient where killings were indiscriminate and callous; death sentence imposed but appeals on sentence postponed for constitutional review.
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30 November 1994 |
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Appeal against murder convictions dismissed; death‑sentence appeals deferred pending Constitutional Court ruling.
Criminal law – Murder – premeditated, co‑ordinated killing of police officers – evidence of planning, admissions and jail conversations establishing joint participation. Evidence – admissions in presence of co‑accused and silence of others as probative of joint liability; credibility assessment of accomplice witnesses. Sentencing – aggravating factors (premeditation, motive of revenge/obstruction of duty) justify death sentence absent substantial mitigation. Constitutional procedure – consideration of death sentence appeals deferred pending Constitutional Court determination on validity of death penalty.
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30 November 1994 |
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Whether cumulative circumstantial evidence and an accused’s silence justified convicting him as a co-perpetrator and imposing death.
Criminal law – murder – circumstantial evidence – cumulative effect of antecedent and subsequent facts; accomplice liability by supply of weapon and information; adverse inferences from accused's silence where crucial facts lie peculiarly within his knowledge; sentencing – death penalty for deliberate, premeditated political assassination.
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30 November 1994 |
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Reported
Repeal of the statutory lodging requirement did not destroy accrued rights; special leave to lodge the claim out of time was granted.
Repeal and retrospectivity; procedural versus substantive time‑bar provisions; Interpretation Act s12(2) preservation of accrued rights and remedies; special leave to lodge claims out of time under statutory proviso; transfer of rights and obligations to statutory successor.
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30 November 1994 |
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Reported
Whether interest receipts are "derived from farming operations" under s 26(1) and the First Schedule.
Income tax — s 26(1) and First Schedule — scope of "income derived from farming operations" — requirement of direct connection. Revenue v capital — retention interest as part of sale proceeds (revenue); interest on compensation as interest on capital. Sugar industry payments — retention interest under payment scheme; staged compensation for loss of transport/mill-site rights. Statutory interpretation — par 12(1) and par 12(3) First Schedule; strict construction of farmer-specific deductions.
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29 November 1994 |
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Reported
Whether a foreign monetary judgment under appeal is final and enforceable in South Africa and whether provisional sentence is appropriate.
• Private international law – enforcement of foreign money judgments – requirement of finality – effect of pending appeal in country of rendition. • Civil procedure – provisional sentence on foreign judgment – liquidity and consequence of refusal. • Discretion to stay enforcement proceedings pending foreign appeal – relevant factors (pending appeal, absence of supersedeas bond, size of award, public policy). • Public policy – enforceability of foreign punitive/exemplary damages left undecided.
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29 November 1994 |
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Reported
Section 20 bars claims for loss of earning capacity but not delictual solatium under the 1976 Act.
Military Pensions Act 1976 — s 20 — effect on delictual claims arising from disablement; distinction between patrimonial loss (loss of earning capacity) and solatium; statutory pension excludes claim for loss of earnings but not for pain and suffering; Casely (War Pensions) not directly applicable to 1976 Act.
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29 November 1994 |
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Appellant's confessions admissible but insufficient to prove sodomy or murder; convictions reduced to attempted offences.
Confessions – admissibility and weight; exculpatory versus inculpatory portions; duress and alibi defenses – requirements and proof; common purpose and individual conduct; distinguishing sodomy (penetration) from indecent assault; causation and timing in murder—when attempted murder only can be proved.
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29 November 1994 |
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Appellants' murder convictions upheld, but death sentences set aside for concurrent 20-year terms due to mitigating factors.
Criminal law – murder – common purpose – convictions supported by credible eyewitness and corroborating evidence including active participation and tying/burning victims.* Sentencing – death penalty – appellate discretion – necessity to weigh mitigating circumstances (youth, background, lack of relevant antecedents, cultural context); State must rebut plausible mitigating factors.* Evidence – credibility of child and traumatized witnesses and corroboration by circumstances and other testimony.
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29 November 1994 |
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Circumstantial evidence and common purpose supported murder convictions; death sentences partly substituted and murder appeals deferred.
Criminal law – circumstantial evidence and common purpose in murder; admissibility of extra-judicial statements (s 219A); right to legal representation; sentencing – appropriateness and substitution of death penalty; retrial following set-aside convictions (s 324).
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29 November 1994 |
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Confession and corroborated circumstantial evidence upheld convictions; duplicative housebreaking counts set aside; death sentence deferred for review.
Criminal law – confession admissibility and reliability; circumstantial evidence; single witness corroboration; dolus eventualis versus dolus directus; duplication of charges – housebreaking with intent and robbery; sentencing (death sentence deferred for constitutional review).
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29 November 1994 |
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Appellants' confessions were admissible; convictions upheld and death sentences deferred pending constitutional review.
Criminal procedure – admissibility of confessions – s 217(1) Criminal Procedure Act – voluntariness, undue influence and burden on defence; use of police as interpreters does not automatically taint statements; evidence (identification, fingerprint, admissions) supporting gang membership and convictions; sentencing – death penalty held appropriate on facts but deferred pending constitutional review.
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28 November 1994 |
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Sentence set aside and remitted because trial court failed to consider correctional supervision as a sentencing option.
Criminal law — Sentencing — Correctional supervision (s 276(1)(h) read with s 276A) — Applicability in serious offences; appellate interference where trial court failed to consider available sentencing option; substitution of sentence after legislative amendment.
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28 November 1994 |
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Whether appellants were proved to share common purpose in a contract killing and whether death sentence was appropriate.
Criminal law – murder – common purpose and accomplice liability – confessions and pointings-out corroborated by possession and independent witness evidence. Evidence – evaluation of witness credibility; single-witness argument rejected where other incriminating evidence exists. Sentence – contract (hired) murder attracts exceptional seriousness; death sentence appropriate absent exceptional mitigation; appeal on sentence postponed pending Constitutional Court consideration of death penalty.
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25 November 1994 |
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Admission and medical evidence supported a dolus eventualis murder conviction; robbery sentences were reduced, death-penalty appeal deferred.
Criminal law – murder – liability established by admissions corroborated by post-mortem evidence – dolus eventualis. Sentencing – death penalty – appropriateness for particularly cruel murder; constitutional challenge requires deferral to Constitutional Court. Sentencing – robbery with aggravating circumstances – exclusion of victims’ deaths as additional aggravation to avoid double-counting where killings were not foreseen or participated in by all accused. Appellate adjustment of sentences according to roles, youth, priors and mitigation.
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25 November 1994 |
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Court upholds convictions for contract murder and defers sentence appeals pending constitutional ruling on death penalty.
Criminal law – murder – contract killing – common purpose liability – travel to victim’s place, premeditation and payment for murder established. Evidence – unsworn statement/allegation of coercion – weight and credibility; contradicted by eyewitness evidence and rejected. Sentencing – contract murders attract the death sentence absent exceptional circumstances. Procedural – appeals against sentences postponed pending constitutional resolution on capital punishment.
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24 November 1994 |
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Appeal against murder conviction dismissed; death sentence set aside and replaced by 25 years imprisonment.
Criminal law – admissibility of confessions – interpreter absent from evidence – issue left undecided where conviction sustainable without confession. Criminal procedure – voir dire (binne-verhoor) – pointing-out and admissions – no requirement for separate voir dire where defence does not insist and dispute is factual. Evidence – cumulative effect of pointing-out, possession of stolen property and weapon, and accused’s silence can sustain conviction. Sentencing – death penalty – appellate reduction where sentence not the only appropriate punishment; substitution with long-term imprisonment.
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24 November 1994 |
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Failure to disclose material discrepancies between police statements and trial testimony undermines identification and vitiates conviction.
Criminal procedure – Prosecution duty to disclose witness’ police statements – Material deviations between police statements and trial testimony – Failure to disclose is an irregularity affecting cross-examination and identification evidence. Criminal law – Identification – Undisclosed inconsistencies in identification evidence may render conviction unsafe.
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24 November 1994 |
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Whether a confession and eyewitness evidence sustain murder convictions and whether death sentences should be finalized pending constitutional review.
Criminal law — Murder — Conviction based on confession and circumstantial evidence; admissibility of confession after withinverhoor. Evidence — Weight of eyewitness neighbour testimony versus appellant's alibi; limited probative value of some forensic matches. Sentence — Death penalty: aggravating/mitigating factors and pending constitutional challenge.
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24 November 1994 |
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Reported
The appellant's profit from sale of flats was capital, not taxable revenue, as no change to trading intention occurred.
Taxation – Capital v revenue – Whether profit on sale of sectional-title units constitutes taxable income or capital gain – Importance of taxpayer's intention at acquisition and circumstances of sale. Taxation – Change of intention – Whether conversion to sectional title or related-company rescue establishes trading stock or profit-making scheme. Property law – Sectional title conversion – advisory/precautionary conversion not necessarily evidence of trading. Evidence – directors' activities and isolated speculative projects considered but insufficient to convert investment into stock-in-trade.
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23 November 1994 |
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State liable for abduction and continued unlawful detention; void judicial acts did not break causation.
State liability — unlawful abduction by non‑state actors acting on NIS instruction — agents of the State; jurisdiction — trial following abduction void; causation — void judicial acts do not break chain of legal causation; damages for continued unlawful detention.
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22 November 1994 |
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Reported
Voluntary consent to accompany police negates abduction-based jurisdictional bar; brutal, deliberate murders justified death sentence pending constitutional review.
Criminal law — Jurisdiction — Alleged abduction from independent territory — Consent to accompany police — Ebrahim and Wellem considered; Wellem's extension of Ebrahim rejected — Formal extradition unnecessary where consent is voluntary and no unlawful state conduct. Sentencing — Murders extremely brutal and depraved; death sentence appropriate in principle but finalisation adjourned pending constitutional review.
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22 November 1994 |
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Death sentence upheld as appropriate for premeditated, brutal murder; appeal on sentence adjourned pending Constitutional Court review.
Criminal law – Murder and robbery with aggravating circumstances – premeditated, brutal killing to avoid detection – prime mover/instigator increases moral blameworthiness. Sentencing – Death sentence – aggravating factors (planning, brutality, former policeman’s conduct) outweigh mitigating factors; S v Ngcobo distinguishable. Procedural – Finalisation of capital-sentence appeal adjourned pending Constitutional Court determination of death penalty constitutionality.
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22 November 1994 |
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Appeals against murder convictions dismissed; death-sentence appeals postponed pending Constitutional Court decision on capital punishment.
Criminal law – murder – proof of intent – close-range shotgun wound and medical evidence rebutting accidental discharge; dolus directus and dolus eventualis. Criminal law – common purpose – conviction of co-participant for murder on basis of joint enterprise and active participation. Evidence – confessions – admissibility upheld at trial; credibility of accused’s oral testimony assessed and rejected. Sentencing – aggravating circumstances justify death sentence on facts, but execution deferred pending Constitutional Court ruling on capital punishment.
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22 November 1994 |
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Conviction upheld; determination of appeals against death sentences postponed pending Constitutional Court ruling on constitutionality.
Criminal law – Murder in prison cell – Eyewitness and medical evidence supporting dolus directus – Defence of duress/compulsion rejected as not reasonably possibly true – Sentencing triad applied – Death penalty considered appropriate but confirmation postponed pending Constitutional Court ruling on constitutionality of confirmations by Appellate Division.
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21 November 1994 |
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Reported
Divisible import/clearing obligations allow pro rata payment where theft causes non‑self‑created supervening impossibility.
Contract — import/clearing/carriage contract — divisibility of performance — separate operations (forwarding, degrouping, customs clearance, local carriage) allow pro rata recovery on partial performance. Supervening impossibility — theft as casus fortuitus — not self‑created where delay did not causally produce loss. Risk allocation — clearing agent/depositary not insurer absent negligence or express allocation of risk. Exceptio non adimpleti contractus — inapplicable where performance is divisible.
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18 November 1994 |
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Reported
The respondent's erroneous subdivision approval did not give the applicant a delictual claim for pure economic loss.
Town-planning/statutory powers – negligence – pure economic loss – wrongfulness and legal duty – role of statutory appeal/review procedure – quasi-judicial v administrative classification not decisive.
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18 November 1994 |
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Reported
Deeming provision for dismissal on prolonged unauthorised absence operates automatically; no prior hearing or reviewable decision required.
Administrative law – statutory deeming provision – article 72 Education Act: automatic dismissal on >30 days absence without permission – not a discretionary administrative decision subject to audi rule. Procedural fairness – audi alteram partem not required before operation of objective deeming provision. Article 72(2) – discretionary power to reinstate upon re‑reporting; absence of exercise of discretion does not convert deeming into reviewable act.
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18 November 1994 |
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Death sentence found appropriate for robbery-murder with decapitation; appeal postponed pending Constitutional Court decision.
• Criminal law — Murder during robbery — dolus directus inferred from totality of evidence.
• Sentencing — Aggravating factors: robbery motive, deception, vulnerability of victim, mutilation, lack of remorse.
• Evidentiary weight — Extra‑curial admissions and letter corroborating motive and intent; partial acceptance/rejection of inconsistent statements.
• Mitigation — Personality disorder and limited rehabilitation prospects insufficient to outweigh aggravation.
• Procedural — Appeal against death sentence postponed pending Constitutional Court decision on validity of capital punishment.
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18 November 1994 |
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Whether the State proved the appellant’s identity and voluntariness of his confession; death sentence deferred.
Criminal law – identity – circumstantial evidence – clothing change, flight, items found, wounds and admissions used to prove identity beyond reasonable doubt. Criminal procedure – confession – admissibility and voluntariness under s 217(1)(b)(ii) of the Criminal Procedure Act. Evidence – reliability of eyewitness identification and police showings – contradictions and timing of discoveries considered but cumulative evidence upheld. Sentencing – death penalty – confirmation deferred pending constitutional uncertainty (Makwanyane principle).
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17 November 1994 |
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Whether conflicting pre-trial statements and medical evidence support a murder conviction and whether death sentence is proportionate.
Criminal law – confession and unsworn statements – weight to be attached to section 112 statement conflicting with an unsworn magistrate statement; reliability and effect of untested admissions. Evidence – medical and circumstantial evidence – multiple severe cranial injuries supporting direct intent to kill (dolus directus). Sentencing – death sentence review – mitigation (youth and first‑offender) may render death disproportionate despite brutality of offence. Issue of premeditation – absence of sufficient evidence to establish prior planning.
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17 November 1994 |
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Appellants' convictions upheld on reliable eyewitness identification; death sentences postponed pending Constitutional Court ruling.
Criminal law – Murder – Eyewitness identification and corroboration – close‑range daylight observation and subsequent discovery of blood‑stained weapons supported conviction. Criminal law – Sentencing – Death penalty – aggravating factors (premeditation, extreme brutality, gang leadership, extensive prior convictions) outweighing mitigation; sentencing deferred pending constitutional review of capital punishment.
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17 November 1994 |
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Reported
A cheque paid by the respondent despite a drawer's countermand extinguishes the applicant's underlying debt.
Bills of exchange – cheque – countermand of payment – effect of bank's unauthorized payment on underlying debt between drawer and payee – payment by bank to holder extinguishes antecedent debt. Enrichment – condictio sine causa – when payee is not enriched because payment extinguished original claim. Remedies – bank negligent in paying; primary restitution claim lies against drawer (unjustified enrichment/quasi negotiorum gestio). Interpretation and application of Bills of Exchange Act provisions (payment in due course, dishonour, presentment).
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11 November 1994 |
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Reported
Participation in illegal industrial action is relevant but does not automatically bar reinstatement; parity and equity matter.
Labour law – Unfair dismissal – Remedy – Reinstatement versus compensation – Role of employees' participation in illegal industrial action when deciding remedy; parity principle and selective dismissal; doctrine of unclean hands relevant but not automatically disqualifying; industrial court's wide discretion under s.46(9).
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11 November 1994 |
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Whether a co-perpetrator was liable for murder under common purpose/dolus eventualis despite claiming no intent to kill.
Criminal law – Common purpose and dolus eventualis – co-perpetrator guilty of murder where confession and conduct show participation in or foresight of lethal violence. Evidentiary weight of pre-trial confession conflicting with later testimony – confession may fatally undermine credibility. Sentencing – death penalty reserved for exceptionally brutal, premeditated attacks; mitigation may warrant lengthy imprisonment instead.
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11 November 1994 |
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Appeal allowed and magistrate’s sentence for indecent assault on an 8‑year‑old replaced with custodial and suspended terms.
Criminal law – sentencing – appellate review of sentence – misdirection by reliance on prior dicta – correctional supervision as sentencing option (s 276A/Act 8 of 1959) – sentencing for sexual offences against young, vulnerable children – balance between denunciation, deterrence and offender's personal circumstances.
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8 November 1994 |
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Appellate court set aside imprisonment sentence for incest, ordering resentencing after a s 276A(1) report due to misdirected sentencing discretion.
Criminal law – Sentencing – Incest (competent verdict on rape) – Appropriate sentencing considerations: victim's age; degree of coercion or corruption; harm caused; family disruption; offender’s personal factors; correctional supervision vs imprisonment – Appellate interference where sentencing discretion misdirected. Criminal procedure – s 276A(1) reports – requirement and role before imposition of correctional supervision.
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8 November 1994 |
| October 1994 |
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Reported
Whether a contractual 15% "selling commission" payable to an intermediary qualified as marketing expenditure directly incurred for export orders under s 11bis.
Tax — s 11bis — exporter and export trade — whether goods produced were produced for and actually exported despite processing by purchaser; marketing allowance — s 11bis(4)(f) — whether payment to intermediary constituted marketing expenditure "incurred directly" for commission or remuneration for procurement of export orders; character of contractual relationship (sale vs agency) — substance over form; onus on taxpayer to prove directness and nature of expenditure.
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3 October 1994 |
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Whether corrective supervision may be imposed retrospectively and the Appellate Division’s competence to substitute such a sentence.
Criminal law – Sentencing – Availability and retrospective application of a newly introduced sentencing option (corrective supervision) – Appellate competence to impose new sentence options after prior valid exercise of discretion by lower appellate court – s276A(3) remedy for Commissioner of Correctional Services.
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3 October 1994 |
| September 1994 |
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Reported
Whether South African Copyright Act 1978 (with later notices) governs subsistence of U.S.-made drawings and whether two engineering drawings were original and infringed.
• Copyright — foreign-origin artistic works — applicability of South African Copyright Act 98 of 1978 and ministerial notices to works made abroad prior to 1979 — repealed proclamations do not revive to govern subsistence once replaced by later notices. • Copyright — originality — engineering drawings: originality requires author’s own skill or labour, not inventive novelty; "similar to" legends do not preclude originality. • Infringement — reproduction and transmission (telefax) of drawings to third parties for manufacture constituted infringement. • Interim relief — overbroad interlocutory restraint beyond specific claim may be set aside; court entitled to grant interdict where undertaking is equivocal.
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30 September 1994 |
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Reported
Drilling new boreholes and installing pumping equipment is an improvement, not a deductible repair under section 11(d).
Tax — Income Tax Act s11(d) — deductions for "repairs of property" — ordinary grammatical meaning of "repairs". Distinction between repair and improvement — expenditure creating new or improved facilities not deductible under s11(d). Evidence — need to prove existing asset was defective to treat replacement as repair. Authorities — reliance on prior ITC decision distinguishing new borehole drilling as non-repair.
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30 September 1994 |
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Reported
Pre-1991 Labour Relations Act did not govern limited-duration offshore employment; 1991 amendment not retrospective.
Labour law – territorial scope – industrial council jurisdiction limited to undertakings carried on within registered area; offshore/continental shelf work not governed by unamended Labour Relations Act; 1991 amendment to s 2(1) covers continental shelf but is not retrospective by virtue of s 13; s 7 Territorial Waters Act does not render labour legislation extra-territorial.
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30 September 1994 |
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Reported
The amending Act redefining 'associated ship' is not retrospective; arrest was set aside and appeal dismissed.
Admiralty law — Associated ship — Definition amended by Admiralty Jurisdiction Regulation Amendment Act 87 of 1992 — Retrospectivity — Presumption against retrospective operation of statutes — Security arrest of associated ship — Procedural v substantive statute — Impact on vested rights and third parties.
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30 September 1994 |
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Reported
A bank’s negligent, misleading report induced the applicant’s loss; damages awarded in US dollars.
Delict – negligent misstatement – bank report – banker’s duty to third-party financiers – reliance and causation. Bank law – bank reports to other banks – foreseeability of reliance and unlawfulness. Damages – foreign-currency award – competence to express damages in US dollars. Interest – refusal of pre-judgment interest on unliquidated delictual claim.
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30 September 1994 |
