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Citation
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Judgment date
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| November 2006 |
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Applicant failed to prove well‑founded fear for political opinion or membership of a protected group as parent of multiple children.
Refugee law — well‑founded fear: burden of proof, credibility and objective corroboration; Particular social group — parents of more than one child under China's one‑child policy not a protected group where policy is of general application; Refugee Act s3 and international guidance considered.
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15 November 2006 |
| October 2005 |
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Particulars quantifying loss as repair costs without pleading proprietary interest are vague and excipiable; costs of performance not recoverable.
* Civil procedure – exception to particulars of claim – vagueness and embarrassment under rule 23(1) and particularity requirements of rule 18(4),(6) and (10). Contract/damages – whether damages can be measured by costs of performance; law does not generally recognise claim for costs of performance as damages. Pleading – necessity to plead nature/source of incorporeal interest (risk of profit and loss) and to attach contract if relied upon (rule 18(6)). Relief – exception upheld; particulars set aside with leave to amend
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21 October 2005 |
| December 1983 |
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An appellate court will not upset a discretionary sentence absent material misdirection or clear disproportionality.
* Criminal law – Sentencing – Appellate interference – Appellate court will not disturb discretionary sentence absent material misdirection or manifest disproportionality. Burglary and theft – multiple counts – aggregate value and planned campaign relevant to severity of sentence. Leave to appeal – refused where no reasonable prospect of success
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19 December 1983 |
| November 1983 |
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Sentencing for large fraudulent transfers by a trusted accountant was appropriate; appeal against severity and leave to appeal refused.
Criminal law – Fraud by person in position of trust – Large unauthorised transfers to fictitious payee – Sentencing – aggravating factors: breach of trust, prior conviction, commission during suspended sentence – rehabilitative evidence insufficient to avoid custodial sentence – appeal against severity dismissed; leave to appeal refused
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28 November 1983 |
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Conviction upheld on single‑witness evidence; item held to be a handgrenade; sentence reduced to five years.
Possession of explosives – handgrenade characterised as weapon – reliance on single youthful witness and credibility assessment – non‑retrospectivity of later sentencing legislation (1982 Act) – imposition and reduction to statutory minimum sentence.
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18 November 1983 |
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Leave to appeal refused where vehicle identification was credible and alleged alternative thief’s evidence inherently improbable.
Criminal law – theft – identification of property – sufficiency of complainant’s identification evidence; credibility assessment of alternative evidence from a convicted thief; application for leave to appeal refused.
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17 November 1983 |
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Application for leave to appeal dismissed for lack of reasonable prospects; bail continued with added surrender and time-limit conditions.
Criminal law – conviction for dealing in dagga (s.2(a) of Act 41 of 1971) – application for leave to appeal dismissed for lack of reasonable prospects; bail extended pending further leave application with additional surrender and time-limit conditions.
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15 November 1983 |
| October 1983 |
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Whether the applicant’s affidavits disclosed a bona fide defence sufficient for a stay under Rule 31(2)(b).
Civil procedure — Rule 31(2)(b) — condonation and application for stay of execution — requirement to disclose bona fide (prima facie) defence on affidavits only — adverse inference from absence of supporting third‑party affidavit — inconsistencies and inherent improbabilities may justify refusal of stay.
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27 October 1983 |
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Respondent committed for contempt for wilful non‑compliance; restrained from further litigation without judicial certificate; costs awarded attorney‑and‑client.
Contempt of court — deliberate refusal to comply with orders to produce estate documents — imprisonment as appropriate sanction; costs on attorney-and-client scale; vexatious proceedings restraint under Act 3 of 1956; referral to Attorney‑General for criminal consideration; leave to appeal refused.
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12 October 1983 |
| September 1983 |
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Father rehabilitated and providing stable home; court transfers custody to father subject to mother's reasonable access, maintenance set aside.
Family law — variation of divorce custody order — changed circumstances and children's best interests; weight of social-worker welfare reports and school affidavit; rehabilitation of alcoholic parent; status quo and security for children; costs and refusal of leave to appeal.
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22 September 1983 |
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Rule 31(2)(b) application dismissed for failure to show a bona fide, prima facie defence; applicant liable for costs.
Rule 31(2)(b) — setting aside default judgment; test for "good cause" (reasonable explanation, bona fides, bona fide defence); bona fide defence must be prima facie credible; failure to produce key supporting affidavit undermines application; costs; de bonis propriis consideration.
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19 September 1983 |
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Conviction for possession of dagga upheld; de minimis inapplicable; leave to appeal sentence granted on a limited ground.
Criminal law – possession of dagga – evidence and credibility – police witnesses preferred over appellant’s inconsistent account – conviction upheld. Criminal law – de minimis principle – 1.5 grams of dagga held not to be de minimis. Sentencing – prior convictions and failure to benefit from suspension justified custodial sentence; leave to appeal sentence granted on ground of possible misapplication of s.296(1) Criminal Procedure Act 1977. Procedural – application for leave to appeal conviction refused; bail extended pending further application.
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19 September 1983 |
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Court construes "service" broadly, enforces post-sale restraint and interdicts former seller from soliciting past customers.
Contract interpretation – restraint clause – meaning of "service" in clause 14.1; restraint of trade – reasonableness as to area and duration; seller's sale of goodwill bars soliciting former customers (Becker's principle); urgency and suitability of final relief on motion; rectification not required on these facts; second respondent not liable.
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16 September 1983 |
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Accused convicted of terrorism for possessing and hiding explosives and weapons with political/terrorist intent; each sentenced to 15 years.
Criminal law – terrorism (s 54(1)) – possession and concealment of explosives and weapons – evidence of intent – statutory presumptions (s 69(5),(6)) – co-accused as State witness (s 204) – sentence emphasizing deterrence and public protection.
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1 September 1983 |
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Leave to appeal refused where inadmissible confession did not render conviction unsafe and no reasonable prospect of success.
Criminal law — admissibility of confessions — appellate test where inadmissible evidence was admitted — whether remaining admissible evidence proves guilt beyond reasonable doubt (S v Tuge). Criminal procedure — leave to appeal refused where no reasonable prospect of success; alleged prejudicial police conduct and opinion evidence insufficient to vitiate conviction.
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1 September 1983 |
| August 1983 |
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Appellants' custodial sentences for large-scale dagga dealing upheld; no misdirection or striking disparity warranting appellate interference.
Criminal law – Sentencing – Dealing in dagga – Large quantity and active participation as aggravating factors – Prior conviction – Appellate interference with sentencing discretion limited to cases of misdirection, irregularity or striking disparity.
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16 August 1983 |
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Leave to appeal refused where will clearly postpones inheritance until the surviving spouse's death, not creating a testamentary usufruct.
Wills — Testamentary interpretation — whether wording creates usufruct or postpones vesting until death of survivor; Leave to appeal — requirement of reasonable prospects of success; Ownership during survivorship — survivor remains owner; Use of term 'usufruct' insufficient to displace clear testamentary intent.
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15 August 1983 |
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Conviction for robbery substituted to assault with intent to inflict grievous bodily harm; sentence reduced; leave to Full Bench refused; bail extended for petition.
Criminal law — identification and circumstantial evidence — insufficiency to prove robbery where removal of property not established — substitution to lesser offence (assault with intent to inflict grievous bodily harm) under s 309(3) read with s 304(2)(c) — sentencing — refusal of leave to Full Bench — extension of bail to permit petition to Chief Justice.
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12 August 1983 |
| June 1983 |
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Positive in-scene identification and failure to testify justified upholding the robbery conviction, despite limited post-arrest identification.
Identification evidence — positive in-scene identification in daylight — post-arrest identification carries little weight — accused’s failure to testify to advance alternative version (fourth person) — appellate review; leave to appeal refused for lack of reasonable prospects.
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14 June 1983 |
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13 June 1983 |
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Confession corroborated by eyewitness and ballistic evidence: accused convicted of murder.
Criminal law – confession – voluntariness and admissibility – magistrate‑taken statement; corroboration required under s 209. Evidentiary corroboration – eyewitness identification and forensic ballistics (spent cartridges, bullet fragments, scene marks) corroborating confession. Credibility – assessment of inconsistent statements, false explanations and unreliable alibi. Identity – single shooter proved beyond reasonable doubt.
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6 June 1983 |
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Accused failed to prove mitigating circumstances; Court found deliberate killing and imposed the death sentence, leave to appeal enrolled.
Criminal law – Sentencing – Mitigating circumstances – Onus on accused to prove, on balance of probabilities, circumstances affecting mind or emotions – Alleged duress, drug use, unhappy childhood and immaturity insufficient – Where no mitigation proved, death sentence imposed for murder.
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6 June 1983 |
| May 1983 |
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Circumstantial evidence and permissible inferences established truck-driver negligence; children awarded R5,200 maintenance, leave to appeal refused.
Delict — motor collision — proof of negligence by circumstantial evidence — need for sufficient lateral clearance when overtaking two‑wheeled vehicles — inferences from position of victims and vehicles; res ipsa loquitur discussed as an aid to inference.
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26 May 1983 |
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Whether a joint will effected a massing/fideicommissum postponing heirs’ rights until the survivor’s death.
Succession — joint will — massing/'klonting' — construction of testamentary language — fideicommissum versus usufruct; interpretation of 'after the death of the survivor of us', 'sole and universal heirs', and postponement clauses; application of Reek v Registrateur van Aktes and statutory provision (s.115 Boedelwet / s.37 Act 66 of 1965); burden of proof in contested testamentary construction; prescription/condictio indebiti raised but not decided on papers.
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26 May 1983 |
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An option to buy land expressed to be "subject to such conditions as may be agreed" was void for uncertainty and failed formalities, so the applicant's claim for transfer was dismissed.
Sale of land – option to purchase – option in addendum expressed to be "subject to such conditions as may be agreed" – material terms left to future agreement – uncertainty and unenforceability. Formalities – compliance with s.1(1) of Act 69 of 1971 – requirement not satisfied for the option/alienation asserted. Evidence – oral post-contractual understandings cannot supply essential terms omitted from a written option to render it enforceable. Costs – award includes costs of amendment and costs of two counsel given complexity and history.
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13 May 1983 |
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Possession of a vehicle with distinctive identifying features and implausible explanations supports conviction for vehicle theft.
Criminal law – theft – possession of a motor vehicle – identification of stolen vehicle by distinctive, individualised features – credibility findings on appeal – sufficiency of circumstantial evidence to prove guilt beyond reasonable doubt.
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10 May 1983 |
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Sentences for theft and possession of stolen military pistols upheld for three appellants; appellant 4’s lesser role justified reduced, partially suspended sentence.
Criminal law – theft and possession/receiving of stolen firearms – sentencing appeal – assessment of personal circumstances and remorse – differentiation of sentences according to degree of participation – suspension of sentence.
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9 May 1983 |
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An informal antenuptial contract may bind spouses under the husband's domicile law but will not bind third parties without required notarial/formalities.
Conflict of laws – antenuptial contracts – formal validity tested by lex loci contractus or proper law (lex domicilii); informal antenuptial contract binding inter se though void under lex loci; Deeds Registries Act s86/s87(2) – attestation by notary and registration required for effectiveness against third parties; consular attestation not equivalent to notarial attestation; registration cannot validate an otherwise invalid antenuptial contract.
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7 May 1983 |
| April 1983 |
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Deed of suretyship rectified to reflect defendant's personal guarantee; judgment for supplier's debt granted.
Suretyship – interpretation and rectification of deed – parties' true intention governs whether guarantee is personal or corporate. Rectification – deletion of words added after signing where inconsistent with parties' intention. Evidence – credibility and probabilities determine whether guarantor intended personal liability. Costs – attorney-and-client costs recoverable as provided in the deed. Commercial practice – "front end loading" in building contracts noted and referred for investigation.
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11 April 1983 |
| October 1982 |
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Whether cumulative circumstantial evidence proved the appellants knowingly kept a brothel.
Criminal law – Keeping a brothel – proof by circumstantial evidence – cumulative inferences from physical evidence (used contraceptives, locked cubicles, dim lighting), registers and money-handling; managerial control and supervision as indicia of keeping a brothel; identification by photographic album acceptable corroborative evidence.
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22 October 1982 |
| August 1982 |
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3 August 1982 |
| March 1982 |
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1 March 1982 |
| October 1976 |
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Whether de facto control (not lawful lease) suffices to convict prostitutes of keeping a brothel.
Criminal law — Brothel keeping under s.2 Ontug (Immorality) Act — meaning of "keep" as de facto control — lawful lease not required — conviction of prostitutes — evidence: patrons' testimony, police surveillance, photographic and payment evidence — leave to appeal to Appellate Division granted.
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27 October 1976 |
| December 1956 |
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Trustee entitled to possession despite nominee holding; illegal nominee agreements and prospective forfeiture provisions cannot defeat trustee.
Insolvency law – trustee's vesting of insolvent property – nominee registrations held for Asiatics – statutory construction of forfeiture provision as prospective – illegal nominee agreements confer personal, not real, rights and cannot defeat trustee; ejectment ordered.
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13 December 1956 |
| April 1956 |
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Whether municipal regulations may apply to locations established later without prior advisory-board consultation.
Administrative Law; Municipal regulation-making under s.38(3) of Act No.25 of 1945; scope of "terms and conditions of residence in locations" – regulations may apply to locations established after promulgation; s.21(3) consultation requirement limited to advisory boards existing when regulations are made
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9 April 1956 |
| March 1956 |
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Accomplice testimony corroborated by independent evidence of payment upheld a theft conviction.
Criminal law – theft – accomplice evidence – requirement of caution and corroboration – corroboration by evidence of payment and spouse’s testimony – inconsistencies among accomplices not necessarily fatal to conviction
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8 March 1956 |
| August 1955 |
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Applicant's consent at manufacture precludes infringement by later sale; no implied resale restriction absent knowledge.
Designs Act 9 of 1916 s.93(1)(b) – Registered design applied with proprietor's consent at manufacture – Whether subsequent sale amounts to exposure "without consent" – Implied contractual limitation on resale not to be read in where manufacturer unaware of registration – Absolution from instance.
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25 August 1955 |
| June 1954 |
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A theatre liquor licence may authorise sale of liquor to the public attending licensed public dances.
* Liquor licensing — theatre liquor licence — whether authorises sale to public at dances; interpretation of "public entertainment" in s.75(9). Statutory construction — penal provisions construed to avoid penal consequences where reasonable (Rex v Taweel). Contextual interpretation — absence of the word "theatre" repetition in s.75(9) supports broader meaning of "public entertainment"
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7 June 1954 |
| December 1952 |
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Whether allotment of newly created company shares by a controlled company constitutes a deemed donation for death duties.
Death duties — sections 3(4)(f) and 3(4)(g), Act 29 of 1922 — allotment of newly created shares by company controlled by deceased — creation of new rights v transfer of existing property — no donatio where nothing passes — section 3(6) confined to nominal consideration — Sayle's Estate precedent applicable.
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9 December 1952 |
| March 1952 |
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A councillor may be guilty under s.45(1) for accepting post-act payments if received corruptly with expected future favour.
Municipal law – Councillor bribery – Interpretation of 'corruptly' in s.45(1) – Post-act payments can be corrupt where recipient knows or expects future quid pro quo – admissibility and weight of covert dictaphone recording and transcripts.
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7 March 1952 |
| August 1951 |
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A municipal authority may lawfully licence public-service vehicles plying for hire within its area despite provincial vehicle licensing.
Local government powers – Municipal licensing of public service vehicles – Interaction with Motor Vehicle Ordinance 1931 – No repugnancy or implied repeal by earlier provincial statute – Local authority in area of operation may licence vehicles – Duplication of licences not per se invalid.
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13 August 1951 |
| June 1951 |
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Leave to appeal granted by consent; pending appeal the court referred issue of necessary-witness status and counsel travelling fees for consideration.
Procedure — Leave to appeal — Leave to appeal to Appellate Division granted by consent; referral pending appeal to determine whether plaintiff is a necessary witness and allowance of travelling (attendance) fees for counsel.
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29 June 1951 |
| October 1950 |
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Whether minced higher-quality meat sold as 'mince meat' falls within price control and renders the seller liable.
Price Control Regulations – definition of 'mince meat' – includes any meat put through a mincer and sold as mince irrespective of quality; onus on tradesman to justify price – discharge on balance of probabilities; appellate deference to magistrate’s credibility findings.
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30 October 1950 |
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Whether a butcher’s sale practices violated Price Control Regulations by overcharging for ox tail and mischaracterising mince meat.
Price Control Regulations – overcharging – ox tail must be sold by weight – evidentiary value of immediate complaint and vendor’s conduct – definition of ‘‘mince meat’’ covers any meat once minced; labeling cannot defeat regulation.
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30 October 1950 |
| September 1950 |
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Provincial Councils cannot, by implication, impose compulsory home‑language instruction rules on private schools; such provisions are ultra vires.
Constitutional/Administrative law — Provincial legislative competence — s.85(iii) South Africa Act — scope of "education, other than higher education" — limits from pre‑Union practice — validity of provincial regulation imposing home‑language medium in private schools; Parental/common‑law rights — protection from implied legislative invasion; Language law — status of Dutch/Afrikaans under s.137.
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22 September 1950 |
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Magistrates should ordinarily recall material witnesses on remittance; accomplice evidence requires substantial independent corroboration.
Criminal procedure – remittance under s.228(2) – duty to recall material witnesses where their evidence is important corroboration of accomplice; Evidence – corroboration of accomplice – requirement of substantial independent corroboration; Immigration offences – inducing officer to tamper with files – inducement may suffice without proven physical removal when corroborated by independent facts (documents, fingerprints, telegram).
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4 September 1950 |
| May 1950 |
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Appellate court affirmed theft conviction based on credible eyewitness and corroborative evidence.
Criminal law – Theft at market – Eyewitness credibility – Failure to report or to intervene does not necessarily discredit witness – Corroboration by child witnesses – Market inspector’s equivocal evidence – Appellate deference to magistrate’s credibility findings.
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15 May 1950 |
| June 1949 |
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Ministerial power to revoke passports does not permit unlawful dispossession; spoliation and Crown liability remain available.
Administrative law – ministerial discretion to issue/revoke passports – limits to prerogative; Spoliation – possession of revoked passport; Crown Liabilities Act 1 of 1910 – meaning of "wrong"; justiciability of executive acts.
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13 June 1949 |
| February 1947 |
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An order compelling particulars is interlocutory and not appealable under section 83; appeal against costs alone cannot challenge the merits.
Magistrates' Courts Act s83 – appealability – order for particulars interlocutory – ancillary costs do not render order appealable – appellate review of costs only assumes correctness of interlocutory order – precedents followed (Erasmus v Daly & Co.; Stellenboom v Bhyat; Ranchod v Lalloo).
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21 February 1947 |
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Applicant failed to prove a 1916 codicil was invalid; long-lapsed, unreliable witness evidence and absence of decisive testimony led to absolution from instance.
Wills and succession — Validity of codicil — Allegation that signature was made on testator's behalf and witnesses signed after death — Probative weight of evidence after long lapse of time — Failure/tendering of defendant's viva voce evidence.
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19 February 1947 |