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Citation
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Judgment date
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| December 1999 |
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Reported
Whether handing over movables under a notarial bond one day before liquidation was an intended preference under s29(1).
Insolvency law – voidable preferences (s29(1)) – disposition occurs on delivery/physical transfer of movables; statutory six‑month period applicable. Insolvency law – intention to prefer – subjective test: court must determine debtor’s dominant operative intention on balance of probabilities; onus on creditor to prove absence of intention to prefer and that disposition was in ordinary course of business. Insolvency law – ordinary course of business – objective test whether transaction would appear anomalous or unbusinesslike to a reasonable man of business. Civil procedure – possession taken prior to court order is not a disposition "in compliance with an order of the court" and so is not excluded from s29(1).
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1 December 1999 |
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Reported
Chapter 6 civil recovery provisions of the Prevention of Organised Crime Act are not retrospective; appeal dismissed.
Prevention of Organised Crime Act 121/1998 – Chapter 6 (civil recovery) – preservation and forfeiture orders – retrospectivity. Presumption against retrospectivity; fairness to affected third parties. Distinction between expressly retrospective confiscation provisions (Chapter 5) and Chapter 6 civil recovery. Section 38 preservation orders – instrumentality of an offence; proceeds of unlawful activities.
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1 December 1999 |
| November 1999 |
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Reported
A surety is not released by creditor conduct within contractual authority; estoppel requires proved representation.
Suretyship – estoppel – requirement of proof of representation and receipt of communication before estoppel can arise. Suretyship – prejudicial conduct by creditor – prejudice only releases surety if it results from breach of a legal duty. Banking law – honouring cheques and debit orders by authorised signatory – bank acting within mandate. Contract – exercise of discretionary overdraft facilities – creditor permitted to increase overdraft within contractual discretion.
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30 November 1999 |
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Reported
The State in s24 of the Eskom Act includes regional and local government, exempting the respondent from regional establishment levies.
Interpretation – "the State" in s 24 of the Eskom Act – includes regional and local government bodies (regional services councils and transitional metropolitan councils); exemption from regional establishment levies; statutory context and functions determine meaning; ministerial control test not decisive.
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30 November 1999 |
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Reported
Participation in an armed robbery gives rise to common purpose liability and dolus eventualis; police lawfulness does not absolve robbers.
Criminal law – robbery and murder – participation in armed robbery – common purpose and dolus eventualis – liability where accused foresees risk of lethal violence. Defence of compulsion –Requirements: threat of imminent harm – defence unavailable where accused voluntarily joined armed gang. Dissociation – mere flight insufficient; effective withdrawal requires more (notification/frustration). Separation of trials – co-accused’s right against self-incrimination limits compellability; trial judge may refuse separation to avoid prejudice and impasse. Novus actus interveniens – police lawfully acting in necessity is not an abnormal, independent event absolving robber of liability.
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30 November 1999 |
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Reported
s51(1) "full reasons" not jurisdictional for s51(9) amendments; amended claims held fairly based and sufficiently clear.
Patent law – amendment under s51(9) – "full reasons" in s51(1) not jurisdictional for court applications; fair basis requirement (s51(6)(b)) – amended claims must be broadly disclosed in original specification; clarity (s61(1)(f)(i)) – claims read in context must afford reasonable certainty to skilled addressee.
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29 November 1999 |
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Reported
Whether the appellant was an employer of the respondent despite payroll and supervision being performed by group subsidiaries.
Labour law – employer – corporate group – parent company as employer or co‑employer where payroll by one subsidiary, supervision by another and termination by parent; evidentiary weight of termination letters, share-option offers and letterheads; substance over form in corporate structuring of employment relationships.
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29 November 1999 |
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Reported
Whether the respondent is vicariously liable for harm caused by off-duty soldiers when misappropriation of weapons was unforeseeable.
Delict – negligence – test for culpa (Kruger v Coetzee) – requirement of reasonable foresight of general manner of harm; Vicarious liability – employer liability for omissions of command – reliance on Ewels principles; Vicarious liability – whether soldiers’ conduct was within course and scope of employment (frolic of their own); Sentries’ liability – alleged failure to prevent unauthorised departure of vehicle and firearms; causation and proof; Evidence – absence of sentry testimony and admissible inferences.
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29 November 1999 |
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Reported
Whether a proviso that a cession "will not be implemented" suspends transfer of book-debt rights — court held it does not.
Cession in securitatem debiti; interpretation of contractual proviso "will not be implemented"; meaning of "implement" as carry into effect, not to suspend transfer; immediate vesting of ceded book-debt rights despite restraint on enforcement; Master’s direction to treat proceeds as free residue displaced.
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29 November 1999 |
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Reported
An appellate court increased sentences where the trial judge over‑emphasised respondents’ mitigation in a racially motivated murder.
Criminal law – Sentencing – appellate interference where sentence is disturbingly inappropriate; Sentencing principles – balancing retribution, deterrence, rehabilitation and community interests; Racism – racial conditioning may explain but does not mitigate racially motivated violence; Racial motivation is an aggravating factor; Murder by dolus eventualis and joint liability – concerted action attributable to all participants.
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29 November 1999 |
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Reported
Designers and port authority not liable: flare‑ignition of gutter was not a reasonably foreseeable risk warranting sprinklers.
Delict – negligence (culpa) and foreseeability; application and flexibility of Kruger v Coetzee test; factual causation versus legal causation (remoteness); liability for omissions and scope of duty to install sprinklers; vicarious liability for employee’s conduct; port authority’s duty to warn about local practices (flares).
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26 November 1999 |
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Reported
The applicant could not alter its chosen claim period with each claim; the initial selection governed all claims until reviewed.
Export incentives – Interpretation of scheme guidelines – Claim period selection (six or twelve months) – Whether selection applies to all claims or to each claim individually; time‑bar under guideline 4.3.1; administrative budgeting and anti‑abuse considerations.
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26 November 1999 |
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Appellate court affirms custodial sentence over correctional supervision for prolonged employee fraud.
Sentencing — correctional supervision (s276(1)(h)) vs custodial sentence (s276(1)(i)) — discretion and proper exercise thereof Sentencing — breach of trust and white‑collar offences — seriousness, duration and amount as aggravating factors Sentencing — candidate for correctional supervision not automatically entitled to that form of sentence
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26 November 1999 |
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Reported
The applicant’s 14‑year sentence for dealing 1,433 kg dagga was upheld as not shockingly inappropriate.
Criminal law – Drugs – Dealing in dagga (s 5(b) Drugs and Drug Trafficking Act 140 of 1992) – Large quantity (1,433 kg) concealed in secret compartment – Sentence – consideration of prior conviction – weighing of personal mitigation – appellate review and ‘shock’ test.
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26 November 1999 |
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Court reduced an unjustifiably disparate sentence, aligning the instigator’s term with co-accused while upholding others’ sentences.
Criminal law – Sentencing – Parity in sentences – Unjustified disparity between co-accused – Role of instigator versus perpetrators – Absence of remorse as non-mitigating (not aggravating) factor – Community protection and deterrence as valid sentencing considerations.
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19 November 1999 |
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Police officers who jointly concealed a colleague’s murder can be convicted as accessories after the fact despite the principal’s identity being unknown.
Criminal law – Accessory after the fact – application of R v Gani/Schreiner doctrine where principal unknown – concealment by co‑accused gives rise to distinct accessory offences. Evidence – Forensic pathology and soil analysis – proving cause and place of death beyond reasonable doubt. Evidence – Admissibility of similar exculpatory extra‑curial statements – admissible where made in furtherance of common purpose. Police duties – omission to report and making false statements – when silence and omission by officers constitute criminal assistance to offenders. Sentencing – seriousness of police officers covering up crime warrants severe custodial sentences.
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19 November 1999 |
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Reported
Whether a supplier’s quality plan is incorporated into a purchase order and damages (including management time) are recoverable for non-conforming goods.
Contract – incorporation of documents – quality control plan submitted with quotation incorporated into purchase order; Breach – goods not conforming to specified material standard; Damages – replacement costs and collateral benefits; loss of management time as recoverable damage if proven; Costs – limits on attorney-and-own-client awards where conduct does not warrant special costs.
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12 November 1999 |
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Appellant failed to prove respondent represented that a new lease existed; appeal dismissed with costs.
Suretyship — alleged representation that new lease concluded — burden of proof on surety; Representation by words versus conduct; Credibility of witness evidence; Interim arrangements versus formation of new contract.
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10 November 1999 |
| October 1999 |
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Reported
Whether overseas match tickets supplied by the applicant were zero-rated under VAT and whether the taxable value was correctly assessed.
Value-Added Tax – zero-rating – exported goods s 11(1)(a) – requirement of sale and transfer of ownership; VAT on services – s 11(2)(k) physical rendering outside Republic requires vendor’s agent to render service abroad; s 11(2)(l) requires recipient to be non-resident and outside Republic; characterization of transactions – supply of services versus goods; taxable value – VAT must be based on value of consideration, not gross selling price.
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1 October 1999 |
| September 1999 |
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Reported
A de facto monogamous Islamic marriage can ground a legally enforceable dependant’s claim for loss of support.
Delict – dependant’s action – scope and adaptability of the common‑law dependant’s action – duty to support, legal enforceability and boni mores as tests for entitlement. Family law – recognition of duties arising from de facto monogamous marriages solemnised according to Islamic rites for purposes of loss of support claims. Common law development – courts may recognise contractual incidents of religious marriages for specific purposes without invoking constitutional provisions. Precedent – Fondo and Ismail distinguished to the extent inconsistent with contemporary boni mores and equality principles.
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29 September 1999 |
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Conviction for incest set aside because of credibility doubts, inadequate findings and failure to prove guilt beyond reasonable doubt.
Criminal law – Incest – proof beyond reasonable doubt – complainant inconsistencies and untruthfulness undermining credibility. Expert evidence – social worker and psychologist – symptoms consistent with sexual abuse but not conclusive; alternative explanations not excluded. Cautionary rule – S v Jackson: no automatic application to sexual offences; evidence must be assessed on its merits. Trial procedure – inadequate reasons and failure to make credibility findings; speculative inferences and omission to call potentially corroborative witnesses render conviction unsafe.
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29 September 1999 |
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Reported
Magistrate's failure to inform unrepresented accused of right to legal representation caused substantial prejudice; convictions set aside.
Criminal procedure – Unrepresented accused – Duty of judicial officer to inform and, where appropriate, to encourage accused to seek legal representation and to apply for legal aid. Irregularity – Failure to inform does not per se vitiate trial; conviction set aside only where irregularity causes actual and substantial prejudice (failure of justice). Assistance to illiterate/semi-literate accused – duty to help formulate defence and to properly put defence during cross-examination. Administrative absence of local legal-aid machinery in former homelands not a defence to judicial duty post-1994.
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28 September 1999 |
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Option to take a mineral lease was not validly exercised; statutory and contractual formalities were not complied with.
Mineral lease – exercise of option under notarial prospecting agreement – clause 3 requirements: notarial exercise within prospecting period; written notice to lessor and magistrate; commencement date within prospecting period is a material term – s 3(1) General Law Amendment Act 50 of 1956 requires notarial attestation; lapse of option cannot be revived by subsequent conduct, waiver, part-performance or royalty payments.
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28 September 1999 |
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Reported
Whether rectification for common mistake can defeat written suretyship and mortgage claims and whether respondent entitled to summary judgment.
Contract — Rectification — Mistake as to effect of written document — Parol evidence rule does not preclude evidence of prior oral agreements in support of rectification (Mouton v Hanekom). Civil procedure — Summary judgment — Defendant’s affidavit must disclose bona fide defence with sufficient particularity under Rule 32(3); court may refuse summary judgment in its discretion where defence may succeed.
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28 September 1999 |
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Reported
Respondent’s insistence on an unagreed amended sale agreement constituted repudiation of the original agreement.
Contract — repudiation — objective test: conduct must show deliberate and unequivocal intention no longer to be bound. Amendment of land sale — statutory formalities (Alienation of Land Act s 2): no binding amendment absent compliance. Oral consensus disputed — Plascon-Evans principle on resolving factual disputes on affidavits. Insistence on performance under a different contract may amount to repudiation even if bona fide mistaken.
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27 September 1999 |
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Reported
TRC amnesty applies to South Africa's internal conflicts; it does not cover offences committed in foreign internal conflicts (e.g., SWA).
Promotion of National Unity and Reconciliation Act – Amnesty – Jurisdiction to grant amnesty for offences committed outside South Africa – Purpose limited to South Africa’s own past conflicts; foreign internal conflicts excluded. Interpretation – "within or outside the Republic" and "another publicly known political organisation" – purposive construction; UN/UNTAG not a comparable political organisation for TRC purposes. Extradition – offences committed abroad and not triable in South Africa are outside the TRC amnesty competence; suspension of extradition to await amnesty would be futile. Criminal procedure – appellant’s flight from justice precludes hearing on appeal.
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27 September 1999 |
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Reported
Whether a magistrate’s rescission of a default judgment is appealable; costs orders are separately appealable.
Appealability — magistrate’s order setting aside default judgment not appealable; costs orders separable and appealable; Rule 49(2) requirements for rescission; condonation and costs allocation.
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23 September 1999 |
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The appellants' convictions for a planned, armed attack were upheld based on accomplice testimony and corroboration.
Criminal law – Mass attack (Boipatong) – Accomplice evidence and its corroboration – Identification of individual participants – Common purpose (gemeenskaplike doel) liability – Assessment of credibility and alibis – No police involvement found.
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21 September 1999 |
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Whether truthful answers would likely have influenced a reasonable insurer’s risk assessment under s63(3) of the Insurance Act.
Insurance Act s63(3) – misrepresentation in application – test is whether truthful information would probably have influenced a reasonable insurer’s assessment of risk (eg prompting inquiry or refusal) – insurer entitled to avoid liability where criterion satisfied; costs — two counsel not justified; specific document-inclusion costs excluded.
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21 September 1999 |
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Reported
A court-appointed curator-spouse can, under the court’s grant of power, bind the joint estate and cede assets despite statutory consent formalities.
Matrimonial property law – s 15 Matrimonial Property Act – court-appointed curator-spouse – power to bind joint estate – representative contracting with self – cession in securitatem debiti versus suretyship – separability of security and surety obligations; need for precise drafting of curator powers in court orders.
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21 September 1999 |
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Sale-and-leaseback transactions upheld as genuine; s103 inapplicable where primary purpose was raising finance, not tax avoidance.
Income tax — sale and leaseback — genuineness and substance of transaction — simulation/fraus legis — s 103 Income Tax Act — abnormal transaction and purpose requirement — primary purpose of raising finance versus tax avoidance — deductibility of lease rentals under s 11(a).
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17 September 1999 |
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Appellate power to alter sentence is the same for state or accused; 9-year sentence for premeditated murder upheld.
Sentence appeal — Prosecutorial appeal against sentence — appellate power to interfere same as accused’s appeal — sentencing discretion — misdirection, startling inappropriateness; murder with premeditation and prior threats; personal circumstances and remorse as mitigatory factors.
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16 September 1999 |
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Reported
A mortgagee’s contractual right to increase interest is valid but must be exercised reasonably, in good faith, and may be impugned.
Contract law – mortgage bonds – clause permitting mortgagee to increase interest – validity of unilateral contractual discretion – not void for vagueness but subject to arbitrio boni viri (good faith/reasonableness). Comparative and Roman‑Dutch law support enforceability of party‑determined prestations subject to objective limitation. Civil procedure – summary judgment – resisting affidavit must disclose material facts and a bona fide defence (Rule 32(3)(b)).
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10 September 1999 |
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Reported
An unauthorised agent’s institution of proceedings may be validly ratified later unless it prejudices substantive third‑party rights.
Civil procedure – locus standi of agent/commissioner – ratification of unauthorised acts – retrospective appointment – procedural (litigation) act v administrative act – effect of ratification after objection – leave to appeal and balance of convenience.
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10 September 1999 |
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Reported
Interest not deductible where loan enabled a distribution to the sole member rather than produced the corporation’s income.
Income tax – s 11(a) and s 23(g) – close corporation – distribution to sole member followed by simultaneous loan back – purpose of borrowing decisive – interest not deductible where loan enabled distribution rather than produced corporation’s income.
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10 September 1999 |
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s319 reservations must be legal questions; post‑discharge service on counsel is ineffective; robbery converted to theft.
Criminal procedure – s319 reservations must be questions of law, not disguised factual disputes; service on counsel after accused’s discharge is ineffective; robbery requires a causal/nexus link between violence and theft; common purpose requirements (presence, awareness, intention, associative act, mens rea).
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8 September 1999 |
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Coiled sensitised aluminium lithographic plate material is classifiable as photographic plates under tariff heading 37.01.
Customs and excise — tariff classification — distinction between "photographic plates" and "photographic film in rolls" — coiled lithographic plate material classifiable as photographic plates under tariff heading 37.01.
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6 September 1999 |
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Reported
Post-conviction conduct giving rise to a reasonable suspicion of judicial bias can vitiate the entire trial, including conviction.
Criminal procedure – post-conviction conduct of presiding officer – private communications with prosecutor, switching off record, refusal to allow argument – appearance of judicial bias. Judicial bias – test clarified: whether a reasonable person in the position of the accused would, on reasonable grounds, suspect possible bias (suspicion the reasonable person would have). Where reasonable suspicion of bias exists and recusal is wrongly refused, subsequent proceedings are nullities and may vitiate the entire trial including conviction.
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3 September 1999 |
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Reported
Employer has no automatic legal claim to pension-fund surplus; trustees’ powers limited to fund rules; contribution holiday may be lawful.
Pension funds – surplus – defined-benefit fund surplus belongs to the fund unless rules/statute/common law provide otherwise; contribution holiday permissible where employer’s contribution arises only if actuarially necessary; trustees’ powers limited to those in rules; transfer of surplus to another fund requires rule authority or parties’ agreement; registrar’s s14(1) certificate does not preclude review of ultra vires acts.
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3 September 1999 |
| August 1999 |
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Reported
Applicants established sufficient new, materially relevant evidence to justify setting aside convictions and remitting the case for a de novo hearing.
Criminal procedure – application to adduce further evidence post-conviction – application of S v De Jager criteria (explanation for non-production, prima facie likelihood, material relevance). Re-opening of trials – when special features and cumulative newly discovered evidence justify remittal. Evidence – impact of amnesty applications, organisational claims of responsibility and ballistic links on identity and culpability. Fairness and interests of justice – scope of further evidence and de novo hearing at remitted trial.
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31 August 1999 |
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Reported
The National Assembly lacked constitutional authority to suspend a member as punishment for non‑disruptive speech.
Parliamentary privilege; freedom of speech in the National Assembly (s58(1)); limits of privileges prescribed by national legislation (s58(2)); scope of Assembly’s internal control (s57); inadmissibility of inferring historic English privileges via PPP Act; judicial review of unconstitutional parliamentary action; suspension as punitive measure for non‑disruptive speech is unlawful.
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26 August 1999 |
| July 1999 |
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Reported
A trustee may not delegate discretionary voting powers to a non‑trustee by power of attorney without express or implied authorisation.
Trust law — delegation of trustees' powers — power of attorney purporting to allow non‑trustee to vote and exercise discretion — Trust Deed construed to require collective decision‑making; no express or implied authorisation to delegate fundamental discretionary functions; personal attributes of trustees relevant; delegation invalid.
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16 July 1999 |
| June 1999 |
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Applicant failed to prove reputation in 'Bladeline'; no passing-off or likelihood of consumer confusion.
Passing-off — elements: reputation and likelihood of deception; importer/distributor vs manufacturer's mark; composite (conjoined) mark not established; insufficient evidence of reputation in model name; no realistic likelihood of confusion.
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1 June 1999 |
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Whether a pre-transfer action under s 34(3) voids a business transfer and to what monetary extent.
Insolvency Act s 34(3) – transfer of business – effect of proceedings instituted before transfer – whether protection survives compromise, rescission or withdrawal – voidness limited to extent of pre-transfer claims; interpleader challenge and scope of relief.
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1 June 1999 |
| May 1999 |
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Reported
Associated-ship arrest: ‘power, directly or indirectly, to control’ covers de jure and real indirect control; appeal dismissed.
Admiralty — Associated ships — s 3(6),(7) Arrest — ‘power, directly or indirectly, to control’ — direct (de jure) and indirect control — statutory deeming — alternative in rem remedy; timing of cause of action; effect of nominee shareholdings and proof under motion proceedings.
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31 May 1999 |
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An arbitrator lacks authority to decide issues not agreed between parties; such parts of the award are invalid.
Arbitration – scope of arbitrator’s mandate – arbitrator bound by issues submitted by parties – acceptance of directions does not enlarge arbitration to cover unpleaded matters – award beyond mandate invalid.
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31 May 1999 |
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Common-law judicial review remains available; a customs commissioner must objectively assess whether clearing agents took reasonable steps to prevent diversion.
• Constitutional law – Item 17 Schedule 6 – disposition of pending proceedings under the new Constitution – interests of justice. • Administrative law – availability of common-law grounds for judicial review despite interim Constitution – common-law and constitutional review distinct. • Customs and Excise – s 99(2)(a)(iii) – meaning of "all reasonable steps" by clearing agents – objective standard and industry custom relevant. • Administrative decision-making – failure to apply mind and inadequate reasons – reviewable.
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28 May 1999 |
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Reported
Contractor must ensure nominated sub-contractor’s work meets contract specifications and is liable for defects.
Building contracts – bills of quantities – nominated sub-contract works constitute part of the "Works" under the main contract when specifications/bills are incorporated thereafter. Nominated sub-contractors – clause 16(4)(a) obliges main contractor to "ensure" nominated sub-contractor performs to specification; entails warranty-like responsibility and may require procuring appropriate (including technical) supervision. Cession – employer’s acceptance of cession of contractor’s rights against nominated sub-contractor does not necessarily extinguish employer’s remedies against contractor. Prescription – in construction defect claims the prescriptive period runs only once damages become due; earliest date here was termination of sub-contract (3 Dec 1991).
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28 May 1999 |
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Reported
A doctor’s negligent misrepresentation of sterilisation attracts delictual liability for confinement costs and limited child maintenance.
Delict — Negligent misrepresentation by medical practitioner that patient was sterilised — pure economic loss — unlawfulness assessed by duty to ensure accuracy in doctor‑patient context — causation and public policy — recoverability of confinement costs and limited child maintenance.
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28 May 1999 |
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Reported
Amending proclamation did not divest tribunal of jurisdiction over permit applications pending when it took effect.
Road transport law – Amending legislation – Retrospectivity – Whether amendment divests tribunal of jurisdiction over pending permit applications – "Pending" defined as lodging prescribed forms with the Secretary – No transfer, repayment or compensation provisions; procedural fairness.
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28 May 1999 |
