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Citation
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Judgment date
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| November 1996 |
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Reported
Whether the municipality was liable despite providing a warning fence and adequate walkway to the respondent.
Municipal liability — duty to take reasonable steps to protect the public from excavation hazards; Foreseeability and standard of care — balancing risk, gravity, utility and burden of precautions; Adequacy of warning fences and temporary walkways as reasonable measures; Supervision of contractors — council responsibility to specify and ensure safety measures; Municipalities not obliged to erect physical barriers preventing all pedestrian access in every excavation.
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29 November 1996 |
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A change in shareholding and control does not automatically discharge reciprocal perpetual restraints; enforceability assessed at enforcement time.
Contract law – restraint of trade – enforcement of reciprocal contractual restraints of indefinite duration – public policy assessed in light of circumstances at time of enforcement (Magna Alloys principle) – sale of shareholding and change in corporate control do not automatically render restraints unenforceable – res judicata/estoppel does not preclude fresh evaluation of changed circumstances.
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29 November 1996 |
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Reported
Post-registration descriptiveness does not warrant expungement absent proprietor blameworthiness; respondent's S-curl use infringed.
Trade marks — post-registration use and evidence — admissibility of subsequent events to challenge continuance on register; expungement for supervening descriptiveness requires blameworthy conduct by proprietor (GE Trade Mark principle adopted); s 42 protection of Part A registrations after seven years — limits on s 18 disclaimers; infringement under s 44(1)(a)/(b); s 46(b) bona fide descriptive defence not available where use imitates registered mark and causes prejudice.
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29 November 1996 |
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Reported
A person acting in a representative capacity may reclaim ultra vires or overpaid amounts by way of the condictio indebiti.
Condictio indebiti – ultra vires payments – recoverability by way of condictio indebiti or condictio sine causa. Representatives (liquidators, trustees, receivers) – payments made in representative capacity can be reclaimed by the represented estate/creditors. Suspensive condition – debts subject to confirmation are indebita for restitution. Excusability of error – limited application where payment made by representative for benefit of others; gross negligence not necessarily fatal.
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28 November 1996 |
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Reported
Board unlawfully delegated its Note 9 exemption function to a committee; decision set aside; appeal dismissed with costs.
Administrative law – delegation – statutory body purportedly delegates decision-making to committee – presumption against delegation – delegatus delegare non potest – section 9 limited delegation to powers under section 4; functions conferred by other law (Note 9, Customs and Excise) not delegable – decision reviewable and set aside.
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28 November 1996 |
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Reported
Whether a contractual price-adjustment clause binds the appellant indefinitely or only for a reasonable time after the deed.
Contract interpretation – option/price-adjustment clauses – scope and temporal application of clause 6(a). Prospecting/cession agreements – effect of later third-party purchases on original option price. Limitation by implication – reading a “reasonable time” into future-operative contractual obligations to avoid indefiniteness. Pleading and evidence – defendant must plead non-expiration of reasonable time when relying on prematurity.
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28 November 1996 |
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A trial court erred in granting absolution where the applicant proved payment by delivery and deed acknowledgement.
Contract law — absolution from the instance — uncontradicted evidence establishing prima facie case; substance over form in contracts; delivery and deed acknowledging payment constitute performance/set-off; non-joinder where no prima facie proof of prior purchaser.
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27 November 1996 |
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Reported
Substituted trust deed governed; staged vesting clause barred premature exercise, so employee who resigned early was disqualified.
Corporate/share option trusts — operative trust deed — substituted deed governs offers and acceptance; share option vesting and implementation — clause restricting timing and percentages of exercise; mistaken delivery of superseded deed — does not alter contractual rights; premature exercise of options — ineffectual; plaintiff who resigns before entitlement — disqualified from taking up shares.
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27 November 1996 |
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Reported
A farm‑in option tied to subjective "similar attraction" and unresolved suspensive conditions was void for vagueness; appeal dismissed.
Contract — Commercial construction — Incorporation by reference; Option/farm‑in clause — nature and enforceability; Suspensive condition requiring further agreement — effect on option; Vagueness/uncertainty — subjective standard of "similar attraction" void for uncertainty; Exercise of option — timing and causation; Parol evidence admissible to ascertain boundary description.
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27 November 1996 |
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Reported
Section 310A does not abolish the practice allowing appellate courts to increase sentences after State notice during a pending appeal.
Criminal procedure – s310A Criminal Procedure Act – effect on State's prior practice to apply for increase of sentence during pending appeal; Appellate jurisdiction to increase sentence despite attempted withdrawal after State notice; Sentencing – abuse of office, premeditated fraud, aggravation and mitigation.
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27 November 1996 |
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Reported
Negligent lane-change caused fatal collision; negligence (not gross) warrants correctional supervision, not immediate imprisonment.
Criminal law – Culpable homicide – negligent driving – distinction between negligence and gross negligence/recklessness; duty to keep proper lookout when changing lanes. Road Traffic – Passing on the left permissible under s 91 if done safely; unsafe lane change may be negligent but not necessarily gross negligence. Sentencing – Degree of culpability is primary measure; imprisonment inappropriate for first offender absent gross negligence; correctional supervision under s 276(1)(h) and assessment under s 276A(1)(a).
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27 November 1996 |
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Sentence set aside where trial court failed to obtain probation report and properly consider correctional supervision; matter remitted for resentencing.
Criminal procedure – sentencing – duty of trial court to obtain sufficient pre-sentencing information – obligation to call for probation officer's report under s276A(1) where material is lacking – correctional supervision (s276(1)(h)) as a viable non-custodial option – misdirection that vitiates sentence and justifies remittal for resentencing.
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27 November 1996 |
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Reported
A merchant seller can be liable for consequential crop damage from a latent defect in pesticide; appeal dismissed with costs.
Product liability; latent defect in pesticide; merchant-seller professing expertise liable for consequential damage; amendment of pleadings and prescription; duty to test and warn; mitigation of damages; costs – attorney-and-client scale and condonation costs.
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22 November 1996 |
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Reported
Article 52 preserves claimants' common-law right to recover damages exceeding the MMF's R25,000 limit from the wrongdoer.
Multilateral Motor Vehicle Accidents Fund Act – construction of article 52; singular wording vs plural under Interpretation Act s6(b); legislative intent to cap MMF liability at R25,000 per passenger while preserving residual common-law claims against owner/driver; Rose's Car Hire and Da Silva applied; effect of multiple insured vehicles on insurer/driver liability.
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21 November 1996 |
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Reported
Whether a contractual use-restriction (with seller's consent clause) prevents the Credit Agreements Act applying to the sale agreement.
Credit Agreements Act 75 of 1980 – s 2(1) proviso – "sole purpose" exemption – whether contractual use-restriction establishes purchaser's sole purpose – effect of seller's written-consent qualification in clause permitting other uses – construction of clause 11.2. Evidence – determination of purpose – majority approach in Oosthuizen: onus on party relying on proviso; extrinsic evidence permissible depending on circumstances but in stated case contract controls.
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21 November 1996 |
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Applicant's rape conviction set aside due to long delay, inconsistencies and insufficient proof beyond reasonable doubt.
Criminal law – Rape – Standard of proof – conviction set aside where delay, inconsistencies and lack of corroboration create reasonable doubt. Evidence – Late out-of-court statement – not admissible as contemporaneous complaint; may impeach but not substantiate. Credibility – Demeanour and emotion not determinative. Criminal procedure – Failure to call available witnesses does not automatically justify adverse inference.
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21 November 1996 |
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Confessions wrongly admitted where State failed to exclude reasonable possibility of police coercion.
Criminal procedure – admissibility of confessions – s 217 Criminal Procedure Act – voluntariness – burden on State to prove absence of undue influence – recorded admissions of voluntariness insufficient where injuries and police evidence suggest possible coercion; caution required where confession is sole incriminating evidence.
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18 November 1996 |
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Appellant's convictions overturned where out-of-court reports were inadmissible or unproven and credibility assessment materially flawed.
Criminal law – Sexual offences – Admissibility of extra-judicial statements by complainant – must be made at earliest possible opportunity or be factually linked to initial report; late reports usually do not prove consistency. Evidence – Prior inconsistent and prior consistent statements – proper use is to test credibility, not to corroborate substantive allegations absent admissibility. Criminal appeal – Unsafe conviction – where trial court relied on unproven/inadmissible reports and demeanour without proper evaluation of probabilities.
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14 November 1996 |
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Reported
Survivorship-conditioned promises to transfer shares were held to be an invalid pactum successorium; appeal dismissed with costs.
Succession law – Pactum successorium – Reciprocal agreement granting survivor deceased's shares – Vesting test: rights that vest only on promissor's death constitute pactum successorium and are invalid; minority view emphasises parties' intention (animus testandi) in distinguishing enforceable commercial arrangements from prohibited succession pacts.
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12 November 1996 |
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Appellate court upheld sentence, finding correctional supervision unsuitable and no basis to disturb the custodial term.
Sentencing — Correctional supervision (s 276(1)(i)) — suitability assessed by probation officer; previous suspended sentences and gang association; psychiatric evidence distinguishing addiction from personality disorder; appellate review of sentence — disturbingly inappropriate test.
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12 November 1996 |
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Reported
Section 53(b) liability is confined to debts/liabilities contracted (consensual/contractual) during a director’s tenure, not later-arising statutory liabilities.
Company law – Directors’ personal liability – s 53(b) Companies Act 61 of 1973 – meaning of "contracted" – whether liability includes statutory liabilities (e.g. voidable/undue preferences) – historical antecedents (s 6A of 1926 Act) – strict construction of onerous statutory impositions on corporate personality.
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8 November 1996 |
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Late arrival at an attack after a fatal shot merits attempted murder conviction, but sentence may remain unchanged.
Criminal law – identification evidence – credibility of eyewitnesses who knew accused and had adequate opportunity to observe during prolonged, well-lit attack; no basis to interfere with trial court’s acceptance. Criminal law – common purpose/latecomer doctrine – participant who joins after fatal wound inflicted cannot ordinarily be convicted of murder but may be guilty of attempted murder. Sentence – substitution of conviction does not necessarily require reduction of sentence where aggravating factors justify original punishment.
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7 November 1996 |
| October 1996 |
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Reported
Holder in due course upheld where authorised signatories' signatures, omitting principal's name, constituted indorsements.
Bills of exchange – holder in due course – "complete and regular on the face of it" (s 27(1)) – regularity judged by contents of instrument – indorsement by company through authorised signatories – omission of principal's name not necessarily an irregularity – reasonable banker/transferee standard (Arab Bank principle).
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1 October 1996 |
| September 1996 |
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Reported
Whether petroleum price adjustments cover fuels used in producing, transporting and delivering materials 'for the execution of the Works'.
Construction contract — price‑adjustment clause — meaning of 'for the execution of the Works' — whether petroleum price adjustments include fuels used in production, rendering and transportation ancillary to the Works — purposive contextual interpretation preferred over narrow literalism — commercial practicability.
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27 September 1996 |
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Reported
A forklift used only in a works yard is not a 'motor vehicle' under the Act; the test is objective 'designed for road use'.
Motor Vehicle — statutory definition — 'designed for propulsion on a road' — objective reasonable‑person test; 'designed' denotes ordinary intended use — vehicles requiring special adaptation not 'motor vehicles' absent adaptation; forklift used in yard held not to be a motor vehicle under Motor Vehicle Accidents Act.
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27 September 1996 |
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Respondent bound to pay two certified progress amounts due to applicant; agent’s undertakings and respondent’s conduct established liability.
Contract and surety-like undertakings – oral and written undertakings by corporate representatives can bind the corporation if corroborated by subsequent conduct and correspondence. Authority/ostensible authority – a bare denial of an agent’s authority insufficient where later corporate conduct confirms the agent’s representations. Admissibility – a corporate letter marked “without prejudice” may be admissible where it is not part of settlement negotiations. Mora and interest – determination of mora date and interest on overdue certified progress payments.
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27 September 1996 |
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Reported
A written settlement offer need not remain open 90 days to restart prescription under section 14(2).
Motor Vehicle Accidents Act s14(2) – prescription – effect of notice conveying offer of settlement – whether offer must remain open 90 days – statutory interpretation; bona fide written offer by appointed agent; suspension and resumption of prescription.
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27 September 1996 |
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Reported
Deliberate withholding, not mere omission, is required to forfeit a claim for failure to furnish documents under art 48(f)(ii).
Multilateral Motor Vehicle Accidents Fund Act/art 48(f)(ii) — disclosure obligations — meaning of "refuses or fails" — requires deliberate/blameworthy withholding before claim forfeiture; internal aide-mémoire vs formal statement; prior authority: Fantiso and Touyz applied.
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27 September 1996 |
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Reported
Copying unregistered industrial designs is not unlawful competition absent additional wrongful or unfair conduct.
Unlawful competition – Aquilian action – wrongful act required beyond mere copying of unregistered designs. Intellectual property – Designs Act – absence of registration places design in public domain; copying permitted. Admissions of copying – insufficient alone to establish unlawfulness; plaintiff must prove extraneous unfairness. Passing off and statutory protection – passing off claim not before this appeal; registered‑design claims resolved by consent.
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27 September 1996 |
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Reported
Payment to acquire long-term management rights was capital in nature and not deductible under s11(a).
Tax — Deductibility under s11(a) — Capital v revenue expenditure — Payment to acquire/terminate management contract to secure long-term management rights — indicia of capital: enduring benefit, size, uniqueness, transfer restrictions, group transaction — distinction from routine operating expenses and licence/franchise analogies.
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27 September 1996 |
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Reported
Whether children suffered patrimonial loss where mother’s pooled contributions were less than her maintenance.
Dependants' claims — patrimonial loss — requirement to prove actual accrued or prospective loss; pooled household income — no presumption of appropriation of contributions; actuarial valuation of loss — factual not legal determination; damages in wrongful death — saved maintenance may offset lost earnings.
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27 September 1996 |
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A suspended sentence under s297 may compel compensation even without conviction for the separate theft of vehicle contents.
Criminal procedure — Section 297: compensatory order as condition of suspended sentence — permitted without separate conviction for related loss if rational causal connection exists; composite sentencing — suspension under s297 may be combined with imprisonment/correctional supervision under s276(1)(i); substance over form; ensure statutory limits and protection of Commissioner's discretion.
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27 September 1996 |
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Whether the applicant retained possession of vehicles and whether the respondent’s repossession constituted spoliation.
Spoliation – requirements: corpus (physical control) and animus – possession may be exercised by a representative or bailee. Repossession without court order – unlawful dispossession if peaceful possession retained. Distinction between consigning an item for sale (agent’s detentio on behalf of seller) and relinquishing corpus such that seller no longer in possession.
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26 September 1996 |
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Reported
Sponsor may withhold payments under the exceptio where organiser breached reciprocal promotional and exclusivity obligations.
Contract – Sponsorship agreement – Interpretation of reciprocity – Whether sponsor’s payment obligation reciprocal with organiser’s detailed promotional and exclusivity obligations (clause 6) – Exceptio non adimpleti contractus – Applicability where performance defective and not remediable – Refund provisions for early instalments do not negate reciprocity.
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26 September 1996 |
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Reported
A multi‑party supply agreement constituted unlawful horizontal price and conditions collusion and was unenforceable.
Competition law; restrictive practices; Government Notice No. 801 — horizontal price collusion and horizontal collusion on conditions of supply; "collusion" construed as acting jointly; multi‑party supply agreement creating reciprocal obligations among suppliers; agreement unlawful and unenforceable; costs including two counsel.
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26 September 1996 |
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Reported
Video games constitute "cinematograph films" under the Copyright Act; storing images in ROMs satisfies fixation, so importing copies infringes copyright.
Copyright — definition of "cinematograph film" — whether video games fall within the definition — fixation, sequence of images and storage on ROMs. Statutory interpretation — purposive construction to cover new technologies. Fixation — encoded storage in microelectronic circuits as fixation on "any other material." Variable/interactive works — player-controlled sequences do not exclude cinematograph film protection. 1992 amendment excluding computer programs — inapplicable where work is a cinematograph film. Infringement — importation and dealing with copies with guilty knowledge.
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25 September 1996 |
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Reported
Interlocutory interdict in defamation resisted where respondent's affidavit raised a sustainable justification and applicant refused an undertaking.
Interim interdict — defamation — application of Setlogelo requisites — defendant's affidavit raising justification on truth and public interest — Heilbron v Blignaut principle — freedom of expression a factor in balance of convenience but no separate interlocutory test — refusal to give undertaking to pay damages relevant.
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25 September 1996 |
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Reported
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25 September 1996 |
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Reported
Attachment of innocent third‑party property under exchange control regulations invalid absent actual benefit or reasonable grounds.
Exchange control – attachment – reg 22A proviso protects third parties who acquired property bona fide for reasonable consideration in the ordinary course of business. Exchange control – recovery – reg 22C requires actual benefit/enrichment before untainted goods of third parties may be attached to recover shortfalls. Corporate law – piercing veil – not justified absent evidence that company is a front or its separate personality abused. Administrative law – attachment invalid where authority lacked reasonable grounds under s 9(2) of the Currency and Exchanges Act.
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25 September 1996 |
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Reported
Appeal dismissed: collusive intent not proved; negligent employee misrepresentation not causally material, 25% reduction wrongly applied.
Delict — negligent misrepresentation — reliance and causation — whether employee’s misrepresentation was a causal contributor to claimant’s loss. Defence of medewerkende opset — requirements of pleading and proof; attribution of employee intention to principal. Apportionment of damages — contributory negligence under Apportionment of Damages Act 34 of 1956 — causal nexus required for reduction. Evidence — evaluation of competing inferences and probabilities where alternative explanations exist.
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25 September 1996 |
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The applicant failed to justify fresh evidence; 18 months' imprisonment for repeat drunk-driving upheld.
Criminal law – fresh evidence on appeal – requirements for remittal of matter for further evidence; late psychiatric/psychological evidence – need for reasonable explanation why not led at trial; Sentencing – corrective supervision vs direct imprisonment for repeat drunk-driving; appellate intervention only for material misdirection or unduly severe sentence.
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25 September 1996 |
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Reported
Appellant held vicariously liable for employee's negligent act despite a brief personal deviation onto neighbouring land.
Delict — vicarious liability — when a servant's personal deviation removes act from course of employment — test of degree (space, time, character) and whether servant remained engaged in master’s affairs. Evidence — weight of contemporaneous admissions and guilty plea versus later in‑court denials. Application of Mkize v Martens, Estate van der Byl v Swanepoel, Feldman v Mall and related authorities.
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25 September 1996 |
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Whether attorney misconduct protecting another client vitiated conviction when the appellant willingly concealed facts.
Criminal procedure — attorney and candidate-attorney misconduct — conflict of interest — concealment of co-offender — whether irregularity vitiates trial — appellant’s complicity — fatal irregularity vs. lesser irregularity.
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25 September 1996 |
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Reported
Extra interest paid to third-party lender was not "wholly and exclusively" for the respondent’s trade and therefore nondeductible.
Tax — Income Tax Act (pre-amendment) — s 11(a) and s 23(g) — deduction of interest — requirement that expenditure be incurred in production of income and be "wholly and exclusively" for trade — dual purpose excludes deduction; commercial expediency/indirect facilitation must be shown on facts.
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20 September 1996 |
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Reported
Appeal allowed: co‑operative validly bound by guarantees to an outsider; compound interest at prime+1% awarded on R4,479,209.12.
Cooperatives Act – sections 49(1)(f) and 49(1)(g) – scope of powers to acquire interests and to guarantee obligations. Section 52(1) – when a "special resolution" is required for financing, indemnifying or guaranteeing. Ultra vires – validity of suretyships given without Ministerial approval. Interest – compound monthly interest at prime plus 1%.
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20 September 1996 |
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Reported
Appeal struck off for non-appealable order; appellant ordered to pay leave costs and two-thirds of wasted appeal costs.
Appealability — interlocutory orders — dismissal of exception based on contractual interpretation not a final appealable order; jurisdiction — appeal struck off for want of jurisdiction; costs — discretionary allocation of wasted appeal costs where appellant is dominus litis but respondents also bear some blame.
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20 September 1996 |
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Appellants’ convictions for murder and arson upheld on common purpose; certain sentences reduced for youth and intoxication.
Criminal law – Murder and arson in the context of a mob action – common purpose liability; credibility assessments and admissions. Sentencing – appropriateness of life and long-term sentences – mitigation for intoxication, youth, personal circumstances, prior convictions; appellate interference where sentence is shockingly inappropriate.
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20 September 1996 |
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Access by a non-custodian father depends solely on the child's welfare, not on the child's legitimacy.
Family law — Access to children — Illegitimacy irrelevant; child's welfare is sole criterion — No onus on non-custodian parent — Court may call evidence mero motu — Expert reports and Family Advocate's role — Remittal for oral evidence and updated report.
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19 September 1996 |
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An ambiguous bill item must be read with the drawings and other contract documents; method B fixing was required.
Contract interpretation – Bills of Quantities – ambiguous item must be construed with drawings and other contract documents to avoid discrepancy. Incorporation of Standard System of Measuring – informative but cannot cure ambiguity in a bill item. Manufacturer's specifications/brochure – descriptive guidance, not decisive prescription where contract documents point otherwise. Ancillary trades (carpentry battens) may resolve ambiguity about method affecting related work.
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17 September 1996 |
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Reported
Insurer failed to prove a lien where repair expenditure preceded its possession and no attornment or unjust enrichment was established.
Insurance; lien; enrichment lien; necessity that expenditure be incurred while claimant in possession; attornment and vicarious possession; unjust enrichment and sine causa.
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17 September 1996 |
