The trial judge directed the jury to find whether the teens had participated enough to have aided or abetted the rape under section 21 ( 1 ) of the " Criminal Code " or had a common intention to rape the victim under section 21 ( 2 ) of the " Criminal Code ".
42.
The defendant argued that both sides did in fact intend that the defendant should be allowed to reside; but even if that be so, there was clearly no common intention to insert such a provision in the lease, for the very clear reason that the plaintiffs wished to avoid the mischief of the Rent Restrictions Acts.
43.
However, the Evidence Ordinance recognizes a few exceptions such as " res gestae " ( recognised under Section 6 ) and common intention ( recognised under Section 10 ) and some other exceptions from section 17 to section 39 . Some other exceptions are provided by case law ( see " Subramaniam v . DPP " [ 1956 ] 1 WLR 956 ( PC ) ).
44.
Such a common intention can, of course, exist without giving rise to any contractual obligations, but the circumstances of this case indicate to me that this is one of the fairly rare exceptions to the general rule expounded in the leading cases of " Spencer v Harding " [ 1870 ] LR 5 CP 561 and " Harris v Nickerson " [ 1873 ] LR 8 QB 286.
45.
The common intention of these several types of experiments is to first do something that some interpretations of theory say would make each photon " decide " whether it was going to behave as a particle or behave as a wave, and then, before the photon had time to reach the detection device, create another change in the system that would make it seem that the photon had " chosen " to behave in the opposite way.
46.
However, in " Stack v Dowden ", and then " Jones v Kernott " the Law Lords held by a majority that " Rosset " probably no longer represented the law ( if it ever did ) and that a " common intention " to share in the property could be inferred from a wide array of circumstances ( including potentially simply having children together ), and also perhaps " imputed " without any evidence.
47.
For such conduct is no less consistent with a common intention to share the day-to-day expenses of the household, while each spouse retains a separate interest in capital assets acquired with their own moneys or obtained by inheritance or gift . There is nothing here to rebut the prima facie inference that a purchaser of land who pays the purchase price and takes a conveyance and grants a mortgage in his own name intends to acquire the sole beneficial interest as well as the legal estate & }}
48.
In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust.
49.
Effect must be given, in other words, to the parties'common intention : " that is to say, to what both of them intended upon entering into the contract, and not to what the one or the other had in the back of his or her mind . " This dictum suggests that the courts take a " factual or historical-psychological approach to interpretation, i . e . one which seeks to establish the intention of the parties as a fact existing at the time of contracting . " This more or less accords with the subjective and consensual basis of the rest of the South African law of contract, but it gives rise to a paradox, since the subjective intentions of the parties must be established with reference to certain objective factors, most obviously the words printed on the contract.
