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Citation
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Judgment date
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| 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 |
