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Citation
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Judgment date
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| December 1997 |
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Reported
Registered transfer that complies with formalities makes purchase price due and prescription runs from registration date.
Prescription Act – commencement of prescription – debt due when transfer of immovable property formally registered by Registrar of Deeds. Registration of deeds – registered transfer, although attackable, remains valid until set aside and determines contractual performance. Prescription Act s13(1)(a) – 'oormag' requires objective incapacity preventing institution of proceedings; mere waiting for litigation/ratification insufficient. Civil procedure – special plea of prescription upheld where no interruption or suspension shown.
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1 December 1997 |
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Court upheld applicant's murder and rape convictions, set aside death sentence and remitted for re‑sentencing.
Criminal procedure — judicial conduct — excessive interventions, leading of witnesses and impatience — cumulative effect considered for prejudice and reasonable suspicion of bias. Evidence — admissibility of confession — allegation of police assault — proved custody records and lack of medical corroboration; confession consistent with objective facts. Evidence — alibi — burden on State to show alibi unreasonable; trial court validly rejected alibi evidence. Criminal liability — rape and murder — common purpose and co‑perpetration. Sentencing — death sentence set aside post S v Makwanyane; matter remitted for re‑sentencing.
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1 December 1997 |
| November 1997 |
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Reported
Patent for a gas filter element held valid and infringed; late amendment refused and appeal dismissed with costs.
Patent law — claim construction — ordinary meaning of "self-supporting"; "if desired" renders integer inessential Patent law — infringement — claim construed as whole; experimental evidence insufficient to avoid finding of infringement Patent law — validity — utility (promissory clause), novelty (anticipation by publication or prior use), inventive step (obviousness) Civil procedure — pre-trial issue-limitation; late amendment to rely on further anticipatory documents refused Costs — unsuccessful appellant ordered to pay costs including costs for two counsel
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27 November 1997 |
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Reported
Authorship not anonymous; presumptions inapplicable and appellant failed to prove copyright infringement.
Copyright — originality and infringement — map, compilation (grid) and rules — objective similarity and substantial part test. Section 26 — presumptions for anonymous/pseudonymous authorship do not apply where author/publisher is identified. Prior common sources — effect on assessment of originality and proof of copying. Infringement — need to identify part alleged to be reproduced; mere common cartographical features insufficient.
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27 November 1997 |
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Reported
Whether omission of owner/driver details in the claim form defeats a claim against an appointed agent under the MMF scheme.
Motor-vehicle accidents fund scheme — Article 62 prescribed claim form — Substantial compliance doctrine; Objective test: whether particulars enable a reasonable insurer to consider liability and investigate; Omission of owner/driver details — when registration/make suffices; Prescription against appointed agent; Scope and purpose of claim-form requirements under MMF Agreement.
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27 November 1997 |
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Reported
A post‑trial recantation unsupported by credible independent evidence does not justify remittal or overturning convictions.
Criminal procedure – Remittal for further evidence – S v De Jager prerequisites – requirement of prima facie likelihood of truth not satisfied by unsupported post‑trial recantation; Credibility – recantations may be unreliable where independent corroboration supports original testimony and evidence of possible undue influence exists; Sexual offences – corroboration by medical evidence, school records and possession of pornographic material; Sentence – six years for persistent sexual abuse of child by person in position of trust upheld.
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27 November 1997 |
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Majority upheld convictions for robbery and murder; death sentence set aside and sentencing remitted; dissent would have reduced verdict to culpable homicide.
- Criminal law – participation and instigation in robbery and assault; accomplice evidence and corroboration; probabilities.
- Criminal law – distinction between murder and culpable homicide; foreseeability and liability for death during planned robbery.
- Evidence – assessment of credibility of co‑accused and weight of medical and objective evidence.
- Sentencing – death sentence set aside as unconstitutional; matter remitted for re‑sentencing.
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27 November 1997 |
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Reported
Prescription runs from when payment is due; procedural preconditions for recovery do not postpone prescription.
Prescription – commencement: Prescription under s 12(1) Prescription Act runs when the debt is due, i.e. when payment is payable under the underlying statute. Employment law – s 30(3) Employment Act distinguishes between amounts "due" and amounts "recoverable"; procedural prerequisites to recovery do not postpone accrual of prescription. Interruption of prescription – creditor may serve process to interrupt prescription even if s 30(3) prerequisites not yet fulfilled. Conduct of creditor – creditor cannot by inaction delay commencement of prescription where steps to satisfy preconditions are within his power.
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27 November 1997 |
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Appeal against 12-month sentence for unlawful firearm possession dismissed; no material misdirection or shockingly inappropriate sentence found.
Criminal law – Firearms Act – unlawful possession of unlicensed firearm – sentencing appeal – standard for interference: material misdirection or sentence so unreasonable/shocking as to justify appellate interference. Mitigation – personal circumstances and existing licence for similar weapon as mitigating factors but not automatically controlling. Jurisdiction – limits on district magistrate’s sentencing powers.
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26 November 1997 |
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Appellant failed to prove future loss from an unviable farm; past-loss award upheld and appeal dismissed.
Delict — assessment of damages for past and future loss of earnings; application of contingent discount for uncertainties. Quantum — use of substitute/manager cost (Mathews approach) requires demonstrable viability and admissible financial evidence. Evidence — necessity of coherent, admissible financial records; hearsay and late changes to case weaken claims. Procedure — appellate restraint where trial court exercises broad discretion and no substantial disparity shown.
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25 November 1997 |
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Reported
Interposed trustee arrangement simulated; applicant had an accrued enforceable right to improvements and was taxable under par (h).
Tax law – gross income s 1(par h) – accrual of right to have improvements effected – simulated/interposed trustee arrangements – substance over form – recognition of unexpressed/tacit agreements – taxable inclusion of lease/building considerations.
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25 November 1997 |
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Reported
Sentence for unlawful possession of an AK-47 reduced due to magistrate's misdirection and mitigating personal circumstances.
Criminal law – Unlawful possession of machine gun (AK-47) – statutory minimum sentences; custodianship of weapons and mitigation; duress/compulsion – failure to testify; sentencing misdirection by magistrate (derogatory remarks about prior convictions) as ground for interference with sentence.
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21 November 1997 |
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Reported
Managers are not entitled as of right to collective bargaining; obligation depends on circumstances and evidence.
Labour law – Collective bargaining – No absolute right for managerial employees to collective bargaining; obligation to bargain depends on circumstances; relevant factors include discretionary managerial powers, individualised/performance-based remuneration, potential conflict of interest, representativity and mandate; Act leaves line-drawing to unfair-labour-practice adjudication.
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21 November 1997 |
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Appeal against convictions dismissed; self‑defence rejected; death sentences set aside and remit for resentencing.
Criminal law – murder and attempted murder – common purpose and dolus directus – credibility of eyewitnesses – late‑raised self‑defence (noodweer) rejected – ballistic linkage of bullets to accused's firearm – sentencing: death sentence set aside and matter remitted for resentencing.
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21 November 1997 |
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Appeal dismissed: convictions upheld on common purpose/dolus eventualis; death sentences set aside and some assault terms reduced.
Criminal law – common purpose and dolus eventualis – convictions for murder/attempted murder where specific shooter not identifiable; evidence of pre‑shooting conference accepted; appellants’ exculpatory accounts rejected. Sentencing – death sentences set aside post Makwanyane and remitted for re‑sentencing; certain assault sentences reduced as excessive.
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21 November 1997 |
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Appeal against murder convictions dismissed; confessions and identifications upheld, death sentences set aside and case remitted for sentencing.
Criminal law — voluntariness of confessions and identifications — allegations of police assault — credibility findings; Alibi evidence — evaluation and rejection; Circumstantial evidence — possession of stolen goods and scene identifications; Sentencing — death sentences set aside post S v Makwanyane and matter remitted for re‑sentencing.
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21 November 1997 |
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Condonation for late grounds denied; no reasonable prospect of success on appeal against sentence for brutal murder of police officer.
Criminal law – murder of police officer – credibility findings and eyewitness evidence upheld; alleged epilepsy/brain injury not establishing lack of criminal capacity; condonation for late lodging of grounds refused for lack of reasonable prospect of success; sentencing not shockingly inappropriate; trial court ought to have considered full-bench direction under s 315(2)(a).
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21 November 1997 |
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Confession and palmprint evidence upheld convictions; death sentences set aside post‑Makwanyane and case remitted for resentencing.
Criminal law – Confession – Voluntariness – Court may accept confession where record shows no coercion and State evidence is credible. Identification evidence – Palm/fingerprint comparison – Expert evidence and matching points can prove identity beyond reasonable doubt. Police conduct – Allegations of assault must be credibly established to vitiate admissions. Sentencing – Death sentence invalid after S v Makwanyane; death sentences must be set aside and resentencing ordered. Sentencing disparity – Prior convictions justify harsher sentence for one co‑offender.
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20 November 1997 |
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Reported
Sequestration upheld: surety obligations secured by mortgage bonds and not discharged by alleged ultra vires acts.
Insolvency — sequestration — suretyship liability and prescription; Deeds Registrations Act s51 — interpretation of mortgage bonds securing future debts; effect of "additional amount" clause; corporate/statutory power of cooperative to make payments and charge compound interest — ultra vires and release of surety; bona fide dispute test for opposing sequestration (Kalil/Badenhorst).
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19 November 1997 |
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Reported
Whether a town treasurer is protected by s99 when he made an unauthorised investment outside delegated authority.
Local government — Ordinance No.25 (Natal) — s99 statutory immunity for councillors, officers and servants — meaning of "in the scope of his authority"; construction restrictive because provision invades common-law rights; distinction between "scope of authority" and "course/scope of employment"; s181 disallowance/surcharge procedure relevant to council claims; unauthorised investments by town treasurer; condonation of late lodging of record.
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18 November 1997 |
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Appellant proved head-injury causation for disability; pension benefit deductible from future-loss award; appeal allowed.
Motor-vehicle collision – causation of post-accident disability – weight of contemporaneous lay evidence and temporal proximity where medical opinion conflicts. Quantum – deduction of employment-related benefits (pension) from future loss of earnings; res inter alios acta and bond-insurance benefit. Past earnings – no recovery where employer-paid salary arises from contract. Costs – no special costs order where not sought below; appeal costs including two counsel.
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14 November 1997 |
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Reported
Bank may reverse conditional bank-book credit; summons interrupted prescription; capitalisation does not turn interest into capital.
Banking — reversal of mistaken credit — bank entitled to reverse conditional credit where corresponding third‑party payment not made; no condictio. Prescription — simple summons interrupts prescription of debt claimed even if later pleadings quantify advances. Interest — monthly capitalisation does not convert interest into capital; in duplum rule remains applicable and cannot be avoided by accounting practice. Appropriation — where neither party appropriates, payments shall be applied first to interest then to capital; Clayton's case presumption inapplicable to bank overdraft accounts. Interest pendente lite — court permits interest to run during litigation in accordance with agreed rates and order. Costs — appeal succeeds; cross‑appeal dismissed; costs including two counsel awarded.
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14 November 1997 |
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Appellant's murder conviction upheld; death sentence set aside and remitted for resentencing following Makwanyane.
Criminal law — Murder — Appeal against conviction — Trial court credibility findings and corroboration — conviction upheld. Criminal procedure — Alibi and witness credibility — alibi rejected where improbable and contradicted by possession of stolen property. Evidence — Co-accused's wife's testimony corroborative and admissible. Sentencing — Death penalty set aside post S v Makwanyane; matter remitted for resentencing.
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11 November 1997 |
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Conviction upheld; death sentence set aside under S v Makwanyane and matter remitted for re-sentencing.
Criminal law – Appeal – Conviction upheld; death sentence set aside pursuant to S v Makwanyane – Matter remitted for fresh sentencing.
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6 November 1997 |
| September 1997 |
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Reported
An arbitral award cannot retroactively render an associated ship arrestable for antecedent non-arrestable claims.
Admiralty law – associated ship – 1992 amendment – retrospective effect – enforcement in rem of arbitration awards – derivative nature of awards – interpretation of "maritime claim".
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29 September 1997 |
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Reported
Whether a government lease unlawfully divests statutory management powers over national reserves.
Administrative law – delegation – whether a Department vested with control, maintenance, development and management of national nature reserves may authorise a private party to perform management functions under a lease. Statutory interpretation – s25 Nature Conservation Act 10 of 1987 – permissive powers ("may") versus prohibited sub-delegation/abdication. Public law – distinction between lawful contracting-out (exercise of power) and unlawful abdication of statutory duties. Contract law – validity of long-term leases of public natural resources where statute preserves ultimate statutory control.
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29 September 1997 |
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Reported
A competent local High Court may hear trade‑mark infringements; the oval PPI logo was held to infringe the respondent's registered marks.
Trade marks – Jurisdiction – Interpretation of "court" in Trade Marks Act 194 of 1993 – Transvaal Provincial Division vs other High Courts – Proviso for counterclaims affecting register. Trade marks – Infringement – s 34(1)(a) – Likelihood of deception or confusion – Application of Plascon‑Evans test to service marks. Relief – Interdict for infringement and preventive relief for apprehended future infringement.
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29 September 1997 |
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Reported
Whether statutory security under s.38 vests State ownership in crops grown for a third party, not by the debtor.
Agricultural Credit Act 28 of 1966 — s.38 — transfer of ownership in movable property including crops — interpretation of "grown by the person" — restrictive construction where statute displaces common-law property rights; ownership does not vest in State where crops were grown for a third party using that third party's inputs.
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29 September 1997 |
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Ballistic and circumstantial evidence upheld convictions; death sentences set aside and remitted for resentencing.
Criminal law – circumstantial evidence and common purpose – ballistic linkage of spent cartridges to firearm found in accused’s vehicle – assessment of credibility and appellate review – allegations of police fabrication and conspiracy – onus under s 40(1) Arms and Ammunition Act – death sentence set aside post Makwanyane.
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29 September 1997 |
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Reported
Constructive dismissal found procedurally unfair for lack of a reasonable ultimatum; compensation reduced for likely inevitable short-term dismissal.
Labour law – constructive dismissal – procedural fairness – requirement of warning/reasonable ultimatum before dismissal for poor performance, including senior managers; assessment and reduction of compensation where dismissal unfair but short-term inevitability of termination exists.
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29 September 1997 |
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Reported
The appellants' convictions were upheld; the first appellant's confession deemed voluntary; death sentences later set aside and remitted for resentencing.
Criminal procedure — admissibility of confession — voluntariness and undue influence — burden under s 217(1)(b)(ii) (pre-constitutional decision) — reliability of confession; Eyewitness identification — opportunity to observe and credibility; Sentencing — invalidity of death penalty and remittal for resentencing.
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29 September 1997 |
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Reported
Whether respondent acquired ownership of a cheque and whether the bank was liable for negligent payment.
Bills of Exchange Act – cheque ownership vs proceeds – transfer of title requires delivery plus intention/agreement – agency and forgery – s19(4) presumption relates to possession not ownership.
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26 September 1997 |
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Reported
Notice of dishonour dispensed where drawee objectively not bound to pay, even if bank returned cheque as 'stale'.
Bills of Exchange – s 48(2)(c)(iv) – notice of dishonour dispensed if drawee not bound, as between itself and drawer, to pay – objective test – sufficiency of funds – stale cheques and presentment – bank’s stated reason for non-payment not conclusive.
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26 September 1997 |
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Reported
Whether the 1991 amendment lifting liability limits applies to pre-effective-date accidents with pending claims.
Motor vehicle insurance law — amendment of statutory limitation on third-party claims; pedestrian workmen excluded from cap only when being conveyed. Constitutional/statutory interpretation — presumption against retroactivity; absence of express retrospective words means amendment prospective only. Contract/administrative law — amendment to Fund agreement does not necessarily imply Fund consent to retrospective prejudice; Fund is a juristic person distinct from its members. Distinction between amendments affecting prescription/ancillary relief and those creating substantive rights.
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26 September 1997 |
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Reported
Amendments to an inter vivos trust made with founder and trustee consent before beneficiaries' acceptance were held valid; undue influence not established.
Trusts – Variation of inter vivos trust – validity of amendments made with founder and trustees' consent before beneficiaries' acceptance – Crookes precedent governs; trustees' fiduciary duty to potential beneficiaries not found to prohibit such variation; Perezius exception inapplicable; undue influence not proved.
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26 September 1997 |
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Reported
Interest on a loan primarily taken to buy out a co‑member was not deductible as incurred wholly and exclusively for the appellant’s trade.
Tax — Income Tax — deductibility of interest — s11(a) and s23(g) — requirement that expense be incurred wholly and exclusively for purposes of trade. Tax — Purpose test — focus on the purpose for which money was borrowed, not merely the subsequent increase in income. Company/close corporation law — where multiple members exist, the corporation’s purpose is determined by the collective intention of its members. Mixed-purpose borrowings — portion used to discharge existing business debt may be deductible; dominant non‑business purpose defeats full deduction.
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26 September 1997 |
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Reported
Failure to supply a 4GL-capable system for 250-terminal census capture justified the respondent's cancellation.
Contract interpretation; specialised technical terms; specification constituted a "system" requirement; obligation to supply fourth-generation language and RDBMS for census capture-and-edit program; requirement to support 250 terminals at 20 transactions/sec; failure to meet specification justified cancellation (lex commissoria).
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26 September 1997 |
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Reported
A trustee’s pro rata dividend under Insolvency Act s103(1)(a) prevents a creditor from appropriating the whole payment to selected debts.
Insolvency law – section 103(1)(a) – trustee’s obligation to apply free residue pro rata to unsecured claims – statutory appropriation. Effect of trustee’s dividend on creditor’s right of appropriation – creditor precluded from allocating whole dividend to selected debts. Civil procedure – condonation for late filing – satisfactory explanation but criticism of instructing attorney’s conduct.
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22 September 1997 |
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An appellate court may limit retrospective effect of a substituted maintenance order to prevent undue hardship and protect children's maintenance.
Maintenance Act s 7(2) – appellate discretion to make orders as it deems fit – retrospective effect of substituted maintenance order – interim payments pending appeal – lawfulness and non-repayability of payments made under earlier maintenance order – undue hardship and protection of children’s needs.
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19 September 1997 |
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Reported
Insurer liable where insured event occurred during policy despite deferred-period postponement and later termination.
Insurance law – policy construction – deferred period (104 weeks plus waiting period) construed as postponing payment, not occurrence of insured event; termination of policy by insured does not defeat accrued rights where peril and loss arose during policy; survival clause (clause 13) not interpreted to extinguish rights not yet payable.
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19 September 1997 |
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Convictions upheld; death sentences set aside due to constitutional invalidity and matter remitted for resentencing.
Criminal law – murder and robbery – evaluation of accomplice testimony and requirement for corroboration by independent evidence. Evidence – admissibility and weight of spontaneous statements to medical practitioners as corroboration. Evidence – admissions made in the course of unrelated police inquiries and their probative value. Sentencing – death sentence declared unconstitutional; remittal for resentencing.
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19 September 1997 |
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Reported
Failure to inform of right to legal assistance was unfair but did not require exclusion of a voluntary, reliable confession.
Criminal procedure — confession — failure to inform arrestee of right to legal assistance (s 73(1)) — unfairness but not 'undue influence' under s 217 — discretionary exclusion under fair-trial guarantee (interim Constitution s 25(3)) — confession admitted where voluntary, reliable and obtained without police impropriety.
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18 September 1997 |
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Reported
A provisional credit frozen for suspected forgery did not extinguish the debt; the collecting bank was unjustly enriched.
Banking law – forged cheque – unjust enrichment – collecting bank holds proceeds in its own right once credited – provisional credit frozen pending clearance does not extinguish debt – set-off inapplicable – onus on collecting bank to prove non-enrichment.
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14 September 1997 |
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Court refuses rectification; appellants bound by unlimited suretyships, appeal dismissed with costs.
Suretyships – rectification – alleged prior oral limitation to R15,000 per suretyship – surrounding circumstances and contemporaneous documents control; Interpretation of surety agreements – conduct of parties and probabilities; Mandate of bank’s attorney – use of unlimited form; Alternative plea – justus error rejected.
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11 September 1997 |
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Reported
A voluntary association's constitution did not bar the statutory s 16 fencing procedure; the Board may determine the give-and-take line.
Fencing Act s 16 – give-and-take line – applicability where owners dispute fencing; Association constitution – interpretation of "may" as permissive not obligatory; Clause subject to condition (consent) – onus on party relying on condition to prove non-fulfilment; Administrative/tribunal composition – leave to substitute a properly constituted Board; Costs – award including costs of two counsel justified.
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10 September 1997 |
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Omission to discuss correctional supervision does not prove misdirection; planned, large‑scale theft of vehicle parts justified custodial sentences.
Criminal law – sentencing – correctional supervision under s 276A(1)(a) – omission to mention does not necessarily indicate misdirection; appellate interference for severity only where trial court failed to exercise discretion properly. Theft of motor‑vehicle parts – planning, scale and audacity as aggravating features warranting custodial sentence.
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9 September 1997 |
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Reported
Depreciation from a town-planning scheme linked to the expropriation purpose must be disregarded under s 12(5)(f).
Expropriation Act s 12(5)(f) – Pointe Gourde principle – depreciation or enhancement due to the purpose of expropriation to be disregarded. Town-planning/zoning – depreciation caused by legally enforceable encumbrance is excluded under s 12(5)(f) when linked to purpose of expropriation. Statutory interpretation – literal meaning applies; R v Venter (absurdity) rule required to depart from wording; possibility of double compensation insufficient to override literal meaning.
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9 September 1997 |
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Reported
Whether an exclusivity-forfeiture clause bars a seller’s claim for purchase price — court held it does not.
Contract interpretation – exclusivity-forfeiture clause – whether forfeiture precludes ordinary remedies for purchase price; election of remedies; admissibility of extrinsic evidence to interpret unambiguous written agreement; bona fide defence for rescission of summary judgment.
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8 September 1997 |
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Sentence of imprisonment for a serious, repeated shooting upheld; probation recommendations did not require corrective supervision.
Criminal law – Sentencing – Attempted murder with multiple gratuitous shootings; weight to be given to seriousness of offence and community interest versus probation/corrective reports recommending corrective supervision; S v Lister; exercise of sentencing discretion.
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3 September 1997 |
| August 1997 |
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Accused No 2's confession admissible; convictions upheld; death sentences set aside and remitted for resentencing.
Criminal law – admissibility of confession – trial-within-a-trial – allegations of torture and coercion rejected on credibility grounds; corroboration of accomplice evidence by independent witness and recovery of stolen property; misdirection on characterization of co-perpetration affecting sentence; death sentence rendered incompetent by S v Makwanyane – remittal for resentencing.
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25 August 1997 |
