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Citation
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Judgment date
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| November 1995 |
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"Verloor" on SAP 271 can be ambiguous; fraud not proved, reporting convictions vary on evidence and statutory presumption.
Arms and Ammunition Act – interpretation of "verloor" on SAP 271 applications – ambiguity may include innocent "misplaced" meaning; false representation not automatically proved. Criminal law – statutory presumption under s40(2)(b) – evidential burden to rebut and proof on balance of probabilities; timely reporting under s38. Criminal procedure – distinction between questions of law and fact in s311 appeals
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30 November 1995 |
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Reported
A foreign educational institution (and its publishing branch) qualifies for s10(1)(f) exemption as a single taxable entity.
Tax law – Income Tax Act s10(1)(f) – exemption for religious, charitable and educational institutions of a public character; scope includes foreign/non‑resident institutions; characterization of taxpayer by overall institutional status; single taxable entity (university and its publishing department); rejection of requirement to confine characterization to South African activities.
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30 November 1995 |
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Reported
Retention monies under the contract did not vest in the bank by cession before the contractor's liquidation.
Cession – wide cession of present and future book debts as security; scope and limits of ceding future or contingent rights. Construction contracts – retention monies – when retention money becomes due and payable; effect of engineer's certification and maintenance period
Insolvency – vesting of contingent or future contractual rights in insolvent estate on liquidation (s 339 Companies Act; ss 20(1)(a), 20(2)(a) Insolvency Act). Interpretation of Clause 62(2) and Clause 48(1) re final certification and payment
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30 November 1995 |
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Claimed self‑defence rejected; convictions and sentences for murder and attempted murder upheld.
Criminal law – Murder and attempted murder – self‑defence and putative self‑defence – credibility and objective evidence (photographs) – appellate review of trial court’s factual findings.
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30 November 1995 |
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Reported
Articles 48(f) and 63(b) apply to an Article 12(b) owner; "fails" requires deliberate withholding, not mere omission.
Statutory interpretation – Schedule to MMVAF Act – whether Articles 48(f) and 63(b) apply to owner under Article 12(b); construction of "fails" as deliberate withholding (Fantiso); procedural consequence of admitted mere omission vs deliberate non-disclosure.
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30 November 1995 |
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Reported
Applicant’s challenge to rezoning refusal dismissed: administrator applied mind and no breach of natural justice occurred.
Land use planning — section 44 appeal under Land Use Planning Ordinance — scope of administrator's discretion; natural justice — no automatic right to formal hearing or last reply in section 44 appeals; zoning and structure-plan interpretation — preservation of residential character and parking considerations can justify refusal to rezone; onus on applicant to prove non-application of mind or procedural unfairness.
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29 November 1995 |
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Reported
Aanhouding onregmatig, geen kwaadwilligheid bewys; hofbevel vir verdere aanhouding geldig; vergoeding verhoog na R6000.
Strafproses – s 40(1)(b) redelike verdenking – onregmatige aanhouding; Strafproses – s 50(1) en die hofbevoegdheid om verdere aanhouding te gelas ondanks aanvanklike onregmatigheid; Deliktereghandelikheid – kwaadwilligheid/wederregteliksheidsbewussyn; Kwantum van solatium en koste-opleggings op appèl.
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29 November 1995 |
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Whether the respondent proved that the applicant hired the crane and accepted or tacitly agreed to the respondent's standard hire terms.
Contract — identity of hirer: necessity to prove who contracted for hire; Incorporation of standard terms — requires notice/acceptance; Tacit/implied terms — officious bystander test; Pleadings — significance of belated amendments; Appellate review — disturbing factual findings where material factors were not considered.
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29 November 1995 |
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Reported
Extrinsic evidence may be admitted to show a deed of sale is void under s 2(1); estoppel cannot cure statutory non‑compliance.
Alienation of Land Act s 2(1) – formalities – written deed must contain all material terms – extrinsic evidence admissible to prove that writing failed to record whole agreement and is void. Parol/integration rule – exception for proving condition precedent or invalidity; does not preclude inquiry into validity of transaction. Entire-agreement clause – construction against author and does not necessarily bar proof of partial integration
Estoppel – cannot be used to cure non-compliance with statutory formalities by an innocent nominee in these circumstances. Provisional winding-up – relied upon contingent obligation to transfer land at cost price
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29 November 1995 |
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Conviction and five-year sentence for organised cheque fraud upheld; additional medical affidavits inadmissible on appeal.
Criminal law – theft and fraud – cheque interception and organised scheme – evidential weight of documents found in accused's vehicle; corroboration by accomplice testimony. Criminal procedure – loss of exhibit – prejudice and failure of justice test
Sentencing – seriousness of white-collar fraud versus accused's psychiatric condition (claustrophobia); prior suspended sentence. Evidence on appeal – admission of further affidavits under s 22 Supreme Court Act; De Jager criteria; exclusion of subsequent developments
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29 November 1995 |
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Reported
Creditor must pay proceeds of realised security to trustee under s 83(10) despite procedural non‑compliance; obligations are not reciprocal.
Insolvency law – s 83(10) Insolvency Act – "as hereinbefore provided" construed as general reference, not strict compliance requirement – creditor obliged to pay proceeds of realised security to trustee/Master even if prior procedural steps not strictly followed; s 84(1) applicable despite trustee not being in actual possession; obligations under s 83(10) are not reciprocal.
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29 November 1995 |
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Reported
Appellant failed to prove misappropriation or material change in circumstances; appeal to reduce or suspend child maintenance dismissed.
Maintenance law – variation of divorce maintenance – scope of section 4(1)(b)/7(2) – material change in circumstances required to reduce obligations
Procedure – rectification of record and remittal – fresh evidence must have been obtainable with reasonable diligence; court will not remedy failure to put case at trial. Set‑off/suspension – proprietary claims or alleged misappropriation of child maintenance are not a proper basis for suspension or set‑off; remedy lies in action for recovery
Jurisdiction – Maintenance Court cannot order reimbursement of misappropriated funds; appellate court may not grant such relief where not pleaded or proved. Ultra vires argument rejected – appellate reduction of cash maintenance may leave other obligations (educational/medical) intact under s 7(2)
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28 November 1995 |
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Reported
A supplier who holds itself out as skilled in seed is liable for consequential crop losses from latent defects.
Sale and supply of agricultural seed – latent defects – merchant-seller liability for consequential damages where seller holds itself out as possessing skill and expert knowledge. Implied warranty – not proved. Status of supplier as merchant-seller not negated by limited sales to contract growers
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28 November 1995 |
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Reported
Ministerial section 111 direction effective despite non‑personal service; convictions for possession and dealing in mandrax upheld.
Criminal procedure – section 111 direction – Effect of Ministerial direction transferring trial venue; service requirement under s111(2)(b) – purpose to notify accused – service on authorised legal representative sufficient; peremptory versus directory statutory requirements – non-compliance may be irregularity curable under s309(3) absent prejudice; Evidence – credibility and weight – informant‑police cooperation, contemporaneous records and conduct – convictions for unlawful possession and dealing upheld.
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28 November 1995 |
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Reported
An alleged oral release of sureties was invalid where the surety deed required the creditor's written consent; overdraft was demandable.
Banking law – overdraft repayable on demand – non-variation clause; Suretyship – deed requiring creditor's written consent to termination – oral release invalid; Interpretation of suretyship deeds – restrictive construction in favour of surety but clause protecting creditor effective; Evidentiary credibility of parties' conflicting versions.
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28 November 1995 |
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A conviction cannot stand if it relies solely on an ambiguous statement not clearly linked to the charged offence.
Criminal law – Sufficiency of evidence – Reliance on extra‑judicial statements – Requirement that a confession or statement be clearly connected to the charged offence
Evidence – Ambiguity in statement as to time, place and participants raises reasonable doubt
Appeal – Prosecutor’s concession of doubt and appellate review where conviction rests solely on an unclear admission
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27 November 1995 |
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Reported
The applicant’s condonation for a belated, procedurally flawed appeal was refused because it lacked merit and involved inexcusable delay.
Labour law – condonation for non-compliance with appellate procedure – inexcusable delay and lack of prospects warrant refusal; Industrial procedure – issues not pleaded below generally not entertained on appeal unless no prejudice; Unlawful strike – employer’s summary dismissal upheld where intimidation/sabotage occurred and employees gave false evidence; Audi alteram partem applies in industrial tribunals.
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24 November 1995 |
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Reported
Employee's letters destroying trust constituted material breach justifying dismissal; no formal hearing or ultimatum required.
Employment law – dismissal – breakdown of trust and confidence – employee's written statements amounting to material breach justifying dismissal. Employment law – repudiation versus material breach – not every statement of intention to leave is a resignation; material breach may justify termination. Procedural fairness – audi alteram partem has flexible content; formal hearing or ultimatum not always required. Disciplinary code – applicability limited where conduct does not fall within defined misconduct
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24 November 1995 |
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Court upheld robbery sentence, holding realistic toy firearms justify significant custodial deterrent despite appellants' youth.
Criminal law – Robbery – Sentence – Use of realistic facsimile firearm as aggravating factor – Balancing deterrence and mitigation (youth, first‑offender) – Appeal against sentence dismissed.
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24 November 1995 |
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Appellate court set aside consecutive sentences and restored concurrency; may only increase sentence if original sentence is glaringly inadequate.
Criminal law – sentencing on appeal – limits on increasing sentence where some convictions are set aside or altered on appeal; remission for further evidence on sentence; attempt to defeat or obstruct the course of justice; concurrent versus consecutive sentences.
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23 November 1995 |
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Conviction set aside because identification evidence was unreliable and a plausible alibi existed.
Criminal law – public violence – identification by single witness – contradictions and failure to record evidence – reliability of testimony; Alibi – corroboration – absence of documentary registers – supervisor’s evidence can render alibi reasonably possible; Appeal – conviction unsafe where identification not proved beyond reasonable doubt.
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23 November 1995 |
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Reported
Creditors validly authorised cession of a valuable estate claim to the insolvent’s spouse; appeal dismissed.
Insolvency law – session/cession of estate claims – section 82(1) Insolvency Act – creditors’ power to determine realisation methods – Roman‑Dutch cessio bonorum – public policy – ratification by creditors.
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23 November 1995 |
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Whether s49(2) justifies police use of lethal force and whether convictions were supported by evidence.
Criminal law — Use of lethal force by arresting officer — Article 49(2) Criminal Procedure Act — accused’s onus to establish justification; Credibility findings — preference for state witnesses; Perverting course of justice — fabrication of warning shots and false statements; Sentencing — culpable homicide by police officer.
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23 November 1995 |
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Cumulative circumstantial and forensic evidence, including police identification and ballistics, established murder beyond reasonable doubt; appeal dismissed.
Criminal law – murder – circumstantial evidence and identification – cumulative weight of independent circumstances may establish guilt beyond reasonable doubt
Credibility – trial court's acceptance of police identification and rejection of contradictory alibi upheld on appeal absent compelling reason
Forensics – recovered firearm and ballistics linking weapon to fatal wound support inference of direct intent to kill
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23 November 1995 |
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Convictions set aside where trial court misdirected itself, failed to obtain police records/witnesses, leaving reasonable doubt.
Criminal law – assessment of single witness evidence – requirement of caution and proof beyond reasonable doubt when State relies on single witness. Criminal procedure – production of police occurrence books and attendance of police personnel (s186 procedure) – failure to produce may render conviction unsafe
Evidence – weight to be given to unchallenged defence witness and to discrepancies between oral testimony, pleadings, medical report and photographs
Appeal – misdirection and treating probability as proof justify setting aside convictions where reasonable doubt remains
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23 November 1995 |
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Objective scene evidence justified inferring collision on insured driver's side; adverse inference for defendant's failure to call its driver.
Motor vehicle collision — inference from scene — positioning of vehicles, debris and injured persons — expert evidence not required; adverse inference for failure to call available driver; absolution and onus when defendant leads no evidence.
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22 November 1995 |
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The appellant's appeal is dismissed; conviction for attempted rape upheld by the appellate court.
Criminal law – Rape – Conviction reduced to attempted rape on appeal – Appellate review of sufficiency of evidence – Whether there is ground to interfere with conclusions of trial court and Provincial Division.
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22 November 1995 |
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Appeal allowed: appellate court found the Valiant driver negligent and caused the collision; respondent ordered to pay costs.
Motor-vehicle collision — evaluation of conflicting witness accounts — probabilities determine causation. Negligence and causation — physical damage and final vehicle positions used to assess competing versions. Statutory liability under Schedule ("business" and "remuneration") unnecessary to decide where causation and negligence established
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21 November 1995 |
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Non-disclosure of material police statements by a key State witness rendered the murder conviction unsafe; further evidence admitted.
Criminal law — non-disclosure of State witness statements — material discrepancies between pre-trial statements and trial evidence — irregularity vitiating conviction; causation in homicide — timing/location of fatal head injury; admissibility of further evidence on appeal.
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21 November 1995 |
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Reported
Use‑language in valve patents did not prevent anticipation by Blau; patents revoked for lack of novelty.
Patent law — novelty/anticipation — comparison of claim integers with prior art (Blau) — claim language denoting use/purpose — whether "for use in" imports an essential integer — disclosure of sealing means in prior art.
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20 November 1995 |
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Appellate court set aside conviction where trial court misdirected itself on credibility; prosecution failed to prove theft beyond reasonable doubt.
Criminal law – Theft – Appeal against conviction – Evaluation of credibility – Trial court misdirection – Whether accused’s version could reasonably possibly be true – Failure to prove guilt beyond reasonable doubt.
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17 November 1995 |
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Reported
Buyer failed to prove beneficiary fraud; court refused to restrain bank from honouring the letter of credit and denied further evidence.
Documentary credits – autonomy of bank's undertaking – courts will restrain payment only in exceptional cases, typically clear fraud by beneficiary. Fraud exception – beneficiary must knowingly present documents containing material untrue representations for purpose of drawing on the credit. UCP/combined transport documents (Article 25) – banks may accept combined transport documents; indication of place of taking in charge and related entries relevant to conformity. Further evidence on appeal (s 22) – admitted only in special circumstances: acceptable explanation for non-production, prima facie likelihood of truth, and material relevance to outcome
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17 November 1995 |
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Whether the Specification’s grading and test requirements applied to all permitted bedding and padding materials.
Contract interpretation — technical specification for bedding/padding — whether grading, compactability and plasticity requirements and schedule 2 tests apply to all permitted materials; incorporation of pre‑tender minutes, appendix and telexes as surrounding documents; limits on admissible extrinsic evidence; site instruction as tolerance not contractual variation.
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17 November 1995 |
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Appellate court substituted murder conviction with culpable homicide, finding insufficient proof of dolus eventualis.
Criminal law – dolus eventualis – necessity of subjective foresight and reconciliation; avoid equating 'ought to have foreseen' with actual foresight. Criminal law – murder versus culpable homicide – proper application of inferential logic and R v Blom tests
Evidence – evaluation of credibility; role of ex post facto reactions and objective factors
Sentencing – abuse of police power and humiliation of detainee as aggravating features; custodial sentence appropriate
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17 November 1995 |
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Reported
Seizure under section 6 valid where attorney privilege claim not bona fide and files posed risk of tampering.
Criminal/investigative powers – Investigation of Serious Economic Offences Act 117 of 1991 – section 5 inquiry and section 6 search and seizure powers – validity and scope of authorisations. Legal professional privilege – nature, limits and requirement of bona fide claim by attorney/client – privilege does not automatically bar seizure where claim is self-serving. Procedural issues – need for prior court authorisation for seizure of mixed privileged/non-privileged files not absolute; seizure may be justified to prevent tampering. Constitutional challenge – seizure examined without Chapter 3 of Constitution where lower-court judgment predates Constitution coming into operation
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13 November 1995 |
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Appellate court upholds convictions for two rapes; credibility and medical evidence decisive and eight-year effective sentence confirmed.
Criminal law – rape – consent disputed – credibility findings of trial court upheld on appeal where medical evidence corroborated complainant and no misdirection shown; sentencing – individual six-year sentences upheld, partial concurrency resulting in effective eight-year term not excessive.
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13 November 1995 |
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Prosecutor's failure to disclose material prior statement was an irregularity causing a failure of justice; convictions set aside.
Criminal procedure — duty of prosecutor to disclose prior inconsistent statements — test for 'serious discrepancy' (S v Xaba). Irregularity and failure of justice — non-disclosure of material prior statement constitutes irregularity under s 317(1)
Evidence — admissibility and weight of official police pocketbook entries; prior statements admissible when defence has alleged recent fabrication
Appeal — Court may allow widening of grounds where reasonable prospect of success and injustice shown
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10 November 1995 |
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Bank allowed to intervene; condonation refused as delay unjustified and appeal had no prospects of success.
Insolvency / sequestration – requirements: proved creditor, act of insolvency (s 8(g)), insolvency, advantage to creditors – sequestration properly granted on the record
Intervention – creditor with a proved claim and sufficient interest may intervene late to protect creditors’ position
Condonation – delay in lodging notice of appeal must be reasonably explained from the record; subsequent events or dissatisfaction with estate administration do not excuse delay. Appeal scope – appellate court confined to matters in the lower‑court record; extraneous allegations/new evidence not considered
Costs – intervening creditor may recover costs of opposition subject to limitations (no petition costs; only one‑third of replying affidavit)
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9 November 1995 |
| September 1995 |
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A sale contract concluded is the disposition under s34(1); subsequent delivery is performance, not a new disposition.
Insolvency Act s34(1) – "disposition" includes contracts for sale – date of disposition is date of contract conclusion; delivery/performance is not separate disposition; effective date/time clause does not postpone bindingness; multiplicity of dispositions avoided.
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29 September 1995 |
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An accused seeking to retract a guilty plea must raise a reasonable possibility of innocence; mere bare assertions will not suffice.
Criminal procedure – s 121(5)(b) and (6) – plea of guilty – retraction – duress/undue influence – common-law standard – accused must explain plea; court may reject if explanation shown false beyond reasonable doubt; bare later assertions of innocence insufficient.
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28 September 1995 |
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Reported
Retrenchment without giving affected employees a chance to be heard constitutes an unfair labour practice.
Labour law – retrenchment – duty to consult – failure to afford affected employees opportunity to make representations constitutes unfair labour practice; statutory definition of "unfair labour practice" (post‑1991 amendment) does not eliminate consultation as relevant to fairness; probationary/temporary status does not negate right to fair procedure; unpleaded defences may not be raised on appeal.
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28 September 1995 |
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Reported
Whether damages for negligent professional advice are assessed at date repairs reasonably commence; court upheld June 1992 assessment.
Professional negligence — measure of damages for defective building work — damages assessed when it was reasonable to commence repairs (later date permissible); mitigation — reasonableness of delay to obtain further expert advice; recoverability — likelihood that builder/company would meet claim; remedial designs — ex post cheaper design does not necessarily limit recoverable costs.
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28 September 1995 |
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Appeal dismissed: accused knowingly conserved an AK‑47 for another; conviction affirmed and suspension condition corrected.
Criminal law – possession/bewaring of firearm – knowledge requirement for 'possession' under Arms and Ammunition Act; credibility findings – single state witness and investigating officer’s evidence preferred over accused’s denials; statutory presumption (s40(1)) unnecessary where guilt proved beyond reasonable doubt; sentencing – correction of suspended-sentence statutory reference (s31 sub‑sections).
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28 September 1995 |
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Whether identification and rejected alibi evidence safely supported murder convictions under common purpose.
Criminal law – conviction based on identification evidence – reliability of witness identification and risk of mistaken identity. Criminal law – alibi – sufficiency and assessment of alibi evidence and whether it raises reasonable doubt. Criminal law – common purpose doctrine – liability of participants in a joint attack resulting in death
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28 September 1995 |
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Reported
The applicant may sue for defamation within a defined community; the respondent's qualified privilege defence failed.
Defamation – plaintiff must prove on a balance of probabilities that he was regarded as a member of the affected community to sue for community-specific reputational harm
Defamation – imputation defamatory within a substantial, respectable segment of society (even if not to the public generally) is actionable. Qualified privilege – objective test; occasion privileged only if reasonable circumstances give rise to a duty or reciprocal interest to communicate. Vicarious/authorisation liability – organisation not liable absent proof of express or implied authority or approval for the defamatory act
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26 September 1995 |
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Whether the respondent's injury while fetching children for a compulsory employer-organised work function arose out of employment.
Workmen's Compensation Act – "arising out of and in the course of employment" – attendance at compulsory employer-organised family/morale event; employer's permission and expectation; s 27(2) scope. Statutory construction – wide interpretation of acts "for the purposes of and in connection with" employer's business. Proof of connection to employment – compulsory attendance, disciplinary consequences, practical necessity of fetching children during working hours
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26 September 1995 |
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Reported
Whether an obligation to procure registration of transfer was extinguished by prescription; court held it was prescribed.
Prescription – Whether obligation to procure registration of transfer under agreement is a "debt" extinguishable by prescription; commencement and interruption of prescription (ss 12, 14 Prescription Act) – Delivery of documents to purchasers' conveyancers does not constitute performance of obligation to pass transfer – Deeds Registries Act: only owner or his authorized conveyancer can execute deed of transfer.
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22 September 1995 |
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Reported
Application for further evidence refused; prosecutor’s remarks did not stop prosecution; rape conviction and sentence upheld.
Criminal law – rape – assessment of credibility and medical evidence – medical findings not excluding penetration and corroborating location of assault.* Criminal procedure – application to adduce further evidence (s 22 Supreme Court Act) – requirement of material relevance and likelihood of affecting trial outcome.* Criminal procedure – prosecutor’s address – distinction between stopping prosecution and neutral opinion; stopping must be made perfectly plain under s 6 Criminal Procedure Act.
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22 September 1995 |
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Reported
An interdict against competing transport requires proof that the competitor’s conduct injured the permit‑holder’s business.
Road transport permits – statutory prohibition against unauthorised operation – permit-holder’s right to interdict only where competitor’s conduct competitively injures permit-holder; locus standi; interpretation of transferred permit.
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21 September 1995 |
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Reported
A broadly worded suretyship covers judgment debts, so the surety's liability had not prescribed when summons was served.
Contract — Suretyship — Construction of deed of suretyship — Wide wording may include judgment debts, interest and taxed costs arising from underlying transactions
Prescription — When debt becomes due and immediately claimable — effect of judgment and taxation on liquidating debt and triggering prescription periods
Distinction between principal obligation and accessory suretyship obligation — separate causes of action exist side by side
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21 September 1995 |
