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Citation
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Judgment date
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| December 1910 |
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Reported
"Enclosed mining area" requires a fenced enclosure; conviction quashed where no enclosure was proved.
Criminal law – statutory construction – meaning of "enclosed mining area" – requires physical enclosure (fence) – provision applies to enclosed mines/municipalities, not unenclosed alluvial diggings; improperly obtained evidence in accused's absence inadmissible; conviction quashed.
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29 December 1910 |
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Reported
Where a passenger vanishes at sea after exhaustive search, the court may presume death and permit lodgement of the will with the Master.
* Presumption of death – disappearance at sea – exhaustive searches with no trace – court may presume death.
* Testamentary procedure – lodgement of will with the Master – Ordinance 18 of 1905, secs. 6 and 10 – rule nisi to show cause.
* Administration of estate – leave to liquidate where presumption of death established.
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24 December 1910 |
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Reported
Convictions for railway offences alleged to have occurred outside the province were quashed for lack of jurisdiction and supporting evidence.
Criminal law — Review — Jurisdiction — Offences on interprovincial railway — Lack of evidence that offences occurred within province — Convictions quashed.
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17 December 1910 |
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Reported
When remitted as a single case under s.85, consecutive sentences cannot aggregate beyond the s.85 statutory maximum.
Criminal law – Sentencing – Remission under section 85 Magistrates' Courts Ordinance – Aggregate maximum penalty for remitted single case – Consecutive sentences cannot aggregate beyond statutory limit – Sentence reduced on review; authorities: R. v. Sampson & Bacon; R. v. Mdityana.
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17 December 1910 |
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Reported
A purchaser who inspects, forwards, and disposes of goods accepts them and cannot later rescind a sale by sample.
Sale by sample — place and time of acceptance — buyer’s opportunity to inspect at delivery station — conduct amounting to acceptance and ratification (sale, forwarding, instruction to sort) — purchaser precluded from rescission (actio redhibitoria) after treating goods as own property.
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15 December 1910 |
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Reported
A tender "in full settlement" is conditional and does not protect the defendant from costs; costs follow the successful plaintiff.
Civil procedure – Tender – Interpretation of wording – "in full settlement" denotes a conditional offer not amounting to an unconditional legal tender; costs consequences follow ordinary rule unless exceptional circumstances exist.
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15 December 1910 |
|
Reported
Parol evidence admissible to rebut an inference of fraud from a document relied on by a third party.
Parol evidence — admissibility to explain written instrument — exception where third party alleges fraud by parties to the document — mistake/rectification not required before adducing explanatory evidence.
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1 December 1910 |
| November 1910 |
|
|
Reported
Conviction for theft quashed where delivery of sold cattle was not proved and constitutum possessorium was doubtful.
Criminal law – Theft – Delivery required to transfer property – constitutum possessorium – whether a request to "look after" sold goods effects delivery – burden of proof and benefit of doubt where intention to pass property is uncertain.
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25 November 1910 |
|
Reported
A life policy alterable by the insured is an asset of the joint estate and passes under a notarial separation deed.
Insurance law; life policy as asset of joint estate; construction of notarial deed — "assets of the joint estate"; inadmissibility of parol evidence where language unambiguous; requirements for valid cession of policy; effect of policy rights (pledge/change beneficiary) on ownership.
|
23 November 1910 |
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Reported
Malicious proceedings.-Malicious use of civil procedure.-Measure of damages. |
18 November 1910 |
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Reported
Practice.-Pleading.-Application to strike out.-Parol evidence. |
16 November 1910 |
|
Reported
Acknowledged debt under a covering bond and breached conditions justify provisional sentence and execution of the specially hypothecated lease.
Provisional sentence; covering bond; acknowledged indebtedness; breach of bond conditions (levy of execution and failure to pay on writ); specially hypothecated lease declared executable; Mosenthal & Co. v. Lindley followed.
|
11 November 1910 |
|
Reported
Practice.-Pauper suit.-Absolution from the instance. -Refusal of leave to sue again in formda pauperis on the same facts. |
1 November 1910 |
| October 1910 |
|
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Reported
Costs.-Security for.-Peregrinus.-South .Africa .Act. |
15 October 1910 |
| September 1910 |
|
|
Reported
Criminal law.-Review.-Possession of dagga. |
29 September 1910 |
|
Reported
Criminal law.-Review.-Pass Law.-Passing through the country. |
17 September 1910 |
|
Reported
Husband and wife.-Divorce.-Evidence on commission. |
15 September 1910 |
|
Reported
Husband and wife.-Restitution of conjugal rights.-Absence of husband for ten years.-No evidence of malicious desertion.-Leave to sue. |
15 September 1910 |
|
Reported
Husband and wife.-Prayer for general relief in claim for decree of divorce on ground of desertion allowed to stand for prayer for nullity of marriage. |
1 September 1910 |
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Reported
Magistrate's court.-Appeal.:-Jurisdiction.-Spoliation.-Sec. 1 (d) of Ordinance 22 of 1909. |
1 September 1910 |
| August 1910 |
|
|
Reported
Uttering a forged pass is not an offence under the statute if the pass would be invalid in the forum jurisdiction.
Criminal law – Forged/ counterfeit passes – Interpretation of statute phrase 'issue of which is authorised by law' – Territorial validity of passes – Conviction quashed where pass would be invalid in forum.
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31 August 1910 |
|
Reported
Court authorised a magistrate's clerk to note an appeal out of time where delay was due to the applicant's attorney's illness and respondent did not oppose.
Practice — Appeals — Court's discretion to allow noting of appeal out of time under rule 90, Schedule B, Magistrates' Courts Ordinance; noting vs prosecuting distinction (Transvaal law) — clerk authorised to note appeal; no costs ordered.
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15 August 1910 |
| July 1910 |
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|
Reported
Where a preparatory examination was before a different magistrate, subsequent trial proceedings after remittal were unlawful and quashed.
Criminal procedure – remittal of charge – preparatory examination taken before one magistrate – evidence read over at trial before different magistrate unlawful – s.87 Ordinance 7 of 1902 – subsequent proceedings quashed; trial de novo ordered.
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29 July 1910 |
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Reported
Edictal citation and arrest to found jurisdiction remain necessary despite the South Africa Act’s procedural provisions.
Procedure — Arrest to found jurisdiction and edictal citation — Effect of South Africa Act (secs. 98, 112, 113) — Provincial divisions’ jurisdiction unchanged — Attachment of rights under writ of execution as temporary interdict.
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12 July 1910 |
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Reported
Single acts of insolence or bona fide retention of commissions do not automatically justify summary dismissal; dismissal held wrongful.
Master and servant — wrongful dismissal — insolence as ground for summary dismissal must be very aggravated if single occasion; competition with master; bona fide belief in entitlement to commission not necessarily misconduct; proof required for holding out as partner; assessment of damages where interdict application affected relief.
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12 July 1910 |
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Reported
Purchase and sale.-Land sold in lots.-Mistake of purchaser. Auction .-Sec. 49 of Ordinance 12 of 1906. |
9 July 1910 |
| June 1910 |
|
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Reported
Conviction for closing a road quashed where accused honestly believed he had a legal right.
* Road law – closing or diverting public roads – section 12, Ordinance 17 of 1905 – mens rea required – honest claim of right may negate criminal culpability.
|
28 June 1910 |
|
Reported
Master and servant.-Desertior, of service.-Review.-Proof of contract of service.-Sec. 31 of Ordinance 7 of 1904. |
28 June 1910 |
|
Reported
Husband and wife.-Jt!lar1·iage.-Nullity.-Previous stuprum of wife. |
23 June 1910 |
|
Reported
Appeal.-Sec. 16 of Ordinance 13 of 1904.-Date of a petition. |
1 June 1910 |