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[2018] ZAWCHC 142
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Nels Investments CC v Bellinghan (7048/2018) [2018] ZAWCHC 142 (31 October 2018)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case
No: 7048/2018
In
the matter between:
NELS
INVESTMENTS
CC
Applicant
and
CHRISTOPHER
BELLINGHAN
Respondent
JUDGMENT
31 OCTOBER 2018
KUSEVITSKY
AJ:
[1]
This is an opposed application for the provisional sequestration of
the estate of the Respondent. The Respondent stood surety
in favour
of the Applicant, for an entity called Biothane Energy CC
(‘Biothane’). He was the sole shareholder. Biothane
entered into a lease agreement with the Applicant, occupying
commercial premises. The Applicant instituted these proceedings
against
the Respondent on the basis that the Respondent committed
certain acts of insolvency in his endeavour to settle Biothane’s
debt allegedly owed to it.
[2]
The Respondent defends the matter on the basis that he has not
committed any acts of insolvency. He avers that the Applicant
has
failed to distinguish between Biothane’s debts and his
obligations as surety. He claims that there is a dispute in respect
of the rental amount owing to the Applicant, as Biothane has effected
certain improvements on the leased premises and as a result,
Biothane
has a counterclaim against the Applicant. This would mean, so it is
argued, that any accessory obligation towards the
Applicant is
dependant on the existence and extent of Biothane’s principal
obligation to it and any defences attaching to
the principal debt
would ostensibly, also be available to him as surety.
Summary
of factual background
[3]
Biothane entered into a lease agreement in respect of certain
commercial factory premises, owned by the Applicant, on 20 June
2017
(‘the lease’). It was however mentioned that Biothane had
occupied presumably other sections, for much longer.
According to the
founding papers, the Respondent and Biothane could not make payment
of the rental due in terms of the lease for
a long period and as a
result, the parties entered into settlement negotiations in respect
of the termination of the lease and
the payment of the arrear rental.
During November 2017, the Applicant directed a letter of demand to
Biothane for the amount of
R 236 997.67 which was for outstanding
rental for the months of May 2017 in part, through to November 2017.
[4]
When no payment was forthcoming, the Applicant met with the
Respondent on 1 December 2017 in order to discuss the settlement
of
the arrear rental. It also discussed the date upon which Biothane
would vacate the premises in view of the breach of the rental
agreement. According to Applicant, it was agreed at this meeting that
the lease agreement would be cancelled and that Biothane
would vacate
the factory premises on or before 31 December 2017. This agreement
was denied by the Respondent. He argued that the
agreement was that
Biothane would vacate the premises by 31 January 2018 and that the
lease agreement would be terminated on 1
February 2018. The Applicant
further stated that the Respondent advised it, that he had no funds
to pay the arrear rental, but
proposed that he would settle the debt
from the proceeds of the sale of certain of his assets and that of
Biothane, and that he
had arranged a public auction during December
2017 for this purpose. Applicant needed confirmation that the
proceeds from the auction
would be utilised to settle the full
arrears. According to the Applicant, they were somewhat dismayed and
surprised that Respondent
decided to utilise the proceeds for other
purposes and only received an amount of R 120 000.00 from the
proceeds of this auction.
It averred that not only did this amount
not cover the arrears, but Biothane also reneged on its agreement
that it would vacate
the premises by 31 January 2018. Instead, it
sought a further indulgence to remain on the premises until 31 March
2018 and offered
to pay an amount of R 50 000.00 in five equal
payments from February 2018.
[5]
On 5 December 2017, the Respondent’s attorneys of record,
directed an email to the Applicant in reply to its request for
Biothane to vacate the premises by 31 December 2017. The Respondent
ended the letter by stating the following:
“
Ons is van
oordeel dat dit in beide partye se belang sal wees indien tot ‘n
aanvaarbare en werkbare ooreenkoms rondom die
beëindiging van
die huurkontrak gekom kan word. Ons kliënt glo dat sy
optrede tot op datum, wat insluit die aansienlike
verbeterings wat hy
op sy kostes tot voordeel van die verhuurder aangebring het (wat
insluit die bou van ‘n wooneenheid,
die aanlê van ‘n
tuin, die boor van ‘n boorgat met pompe en pype en algemene
voorkoms van die huurperseel), sy
bona fides bevestig.”
[6]
On 13 February 2018, Respondent directed a further letter to the
Applicant, advising that it was in the process of vacating
the leased
premises. The letter also stated that during the last nine years of
its occupation, it had effected certain improvements
to the premises
and that in terms of the lease agreement, they had the option of
removing these and leaving the premises as they
had found it,
alternatively they would give the Applicant the option of purchasing
the items, which included
inter alia
, automated gates and a
mezzanine floor measuring some 100 square metres. Further requests
for payments and undertakings to pay
were made, which never
materialised.
[7]
On 12 April 2018, the Respondent’s attorney of record directed
further correspondence to the Applicant, attaching to it
a draft
settlement agreement. In this letter, the Applicant
inter alia
was advised that the Respondent was of the view that he was entitled
to a larger credit as a result of the improvements, and advised
that
the Respondent was only prepared to pay an amount of R 75 000.00 in
full and final settlement of all claims that Applicant
had against
them. The letter also stated that, according to the Respondent, he
could not afford to make a greater offer. The specific
paragraph
reads as follows:
“
Ons sonder
benadeling van regte gesprek gister by u kantore, verwys.
Dankie vir die
vriendelike en openhartige wyse waarop ons gesprek kon plaasvind.
Ek het in breë
trekke die uitslag van ons gesprek met mnr Bellingan bespreek en hy
aanvaar dit, behalwe wat betref die betaal
van ‘n addisionele R
100 000 ten opsigte van die agterstallige huurgeld. Hy glo
dat die verbeterings wat hy aangebring
het, ‘n groter krediet
regverdig en daarom is hy slegs bereid on R 75 000 in volle en
finale vereffening van alle eise,
te tender soos in die aangehegte
skikkingsakte uiteengesit.
Volgens hom het hy nie die geld
om ‘n groter aanbod te maak nie.
…
.Lewer dan die
oorspronklike document aan mnr.Bellingam vir sy onderteken (beide
namens Biothane en
in sy persoonlike
hoedanigheid
) en stuur dan ‘n
afrif van die akte vir ons rekords sodat ons kan toesien
tot die betaal van die balans
van die skikkingsbedrag aan u namens
die Huurder.” (“own emphasis”)
[8]
According to the Applicant, the aforementioned admission could only
have been a reference to the Respondent and argues that
this letter
amounts to a clear act of insolvency in terms of section 8 (g) of the
Insolvency Act
[1]
in that he
informed the Applicant that he did not have money to pay the full
debt due to the Applicant.
[9]
The Applicant further contends that neither the Respondent nor
Biothane, during the initial negotiations regarding payment of
the
outstanding arrear rental, made any mention of a right to be
compensated for any additions and alterations to the leased
premises.
In any event, it argues that the lease contains
provisions, which precludes compensation for any alterations or
improvements.
The
parties contentions’
[10]
It is not in dispute that Biothane was in arrears with its rental
obligations to Applicant. It is also not in dispute that
the parties
entered into without prejudice negotiations to settle same.
[11]
According to Applicant, the Respondent’s defence of a
counterclaim that it has against Applicant is not
bona fide
and not good in law. In reliance hereof, the Applicant relied on the
provisions of the lease agreement.
[12]
Clause 6.1 and 6.2 of the Lease Agreement provides as follows:
"
6.1
The Lessee shall have the right to install in the premises such
fixtures and/o fittings as shall be reasonably required for
the
purpose of its business and it shall have the right upon termination
of the tenancy to remove any such fixtures and/or fittings,
provided
that it shall make good any damage caused to the premises by such
installation and/or removal.
6.2 The Lessee shall not
make any alterations in or additions to the premises without the
Lessor’s written consent, which
shall not be unreasonably
withheld, and in respect of any such alterations and/or additions so
made, the Lessor shall have the
right upon termination of the lease,
from any cause whatsoever, to insist upon the removal by the Lessee
at its own costs of such
alterations and/or additions, and the making
good of any damage caused by such removal, or alternatively
the
Lessor shall have the right to receive the premises as altered or
added to without payment of any compensation for such alterations
and/or additions to the Lessee.
”
[13]
Clause 6.2 of the lease agreement therefore makes it clear, that the
Respondent and Biothane are not entitled to any compensation
in
respect of improvements.
[14]
Clause 3.3 of the lease agreement provides that all rental payments
should be made in advance, free of bank exchange and free
from any
deductions and in terms of clause 12.1, the lessee (Biothane) is not
entitled to withhold, delay or abate payment of any
amounts due to
the Applicant by reason of any alleged breach of the Applicant’s
obligations.
[15]
According to the Applicant, it was only during April 2018 that the
Respondent for the first time
via
his attorneys alleged that
the Applicant had to compensate Biothane for the improvements made to
the property. This, ostensibly,
despite the provisions of the
aforementioned clauses 6.2 and 12.1 of the Lease. This was denied by
the Respondent. The Respondent
claims that the Applicant instructed
Biothane not to remove the improvements when it vacates the premises.
[16]
The Applicant furthermore contends that, as the formal requirements
in terms of the Act were met, and given that this is not
a friendly
sequestration, the Respondent has failed to satisfy that its defence
of a counterclaim is a reasonable ground for opposition
and finally,
that he has failed to show that he is solvent.
[17]
The Respondent on the other hand claims that he has a
bona fide
claim against the Applicant and that it is disputed on reasonable
grounds. He also disputes that he committed any acts of insolvency.
He argued that with regard to the sale of the assets, that the
Applicant was well aware on its own admission, that some of the
assets were to be auctioned off, and the remaining equipment were to
be moved to make way for another tenant. There was thus no
orchestrated attempt to dispose of assets.
[18]
The Respondent finally claims that the offer made to the Applicant
was not made in his personal capacity but made on behalf
of Biothane.
In any event, he claims that since the offer was not accepted by the
Applicant on behalf of Biothane and himself as
surety, those
communications and admissions are privileged and constitute
inadmissible evidence. It will also not be to the
benefit of
creditors to sequestrate the Respondent as there are no significant
creditors.
Evaluation
[19]
It is trite that in order for Applicant to succeed in this
application, it must
prima facie
show that:
19.1 It has a claim
sounding in money against the Respondent for more than R100,00;
19.2 The Respondent has
committed an act of insolvency or is factually insolvent;
19.3 There is reason to
believe that sequestrating the estate of the respondent will be in
the interests of his creditors; and that
19.4 The formal
requirements of section 9 of the Insolvency Act, 24 of 1936 (“the
Act”) have been met.
[20]
It is common cause that Biothane was in arrears with its rental
obligations to Applicant and that the Respondent, as sole member
of
Biothane and surety, entered into settlement negotiations. The issue
in my view to be determined is whether a creditor can rely
on
admissions or concessions made by a debtor of an inability to pay
made during without prejudice settlement negotiations as a
ground for
an act of insolvency. In this case the Applicant also needs to show
that such an act was made in the Respondent’s
personal
capacity.
[21]
The issue of ‘without prejudice’ communications was dealt
with in
Absa
Bank Limited v Hammerle Group (Pty) Ltd
2015 (5) SA 215
(SCA
)
[2]
where the court held that a written communication, which qualifies as
an act of insolvency in terms of section 8(g) of the Act,
may be
admissible against the debtor notwithstanding that it purports to
have been made “without prejudice”.
[22]
An act of insolvency can also be committed via an agent or third
party. In the matter of
Eli Spilkin (Pty) Ltd v Mather
1970
(4) SA 22
(E) at 23-24
, the court held that a debtor also commits
an act of insolvency by his agent where the latter is authorised
accordingly, expressly
or impliedly.
[23]
In
Chenille
Industries v Vorster
[1953] 2 All SA 330
(O)
,
the court held that a debtor also commits an act of insolvency
through another when the latter acts with the former’s
knowledge and consent. Horwitz J said:
[3]
“
The
question whether respondent knew of, and consented to or authorised,
the issue of the circular is one essentially within the
knowledge of
the respondent and his wife. Neither of them has made the
allegation that respondent did not authorise
it or that he did not
consent to its issue. In the total absence of any such denial the
admitted facts and the surrounding circumstances
suffice to establish
the existence of authority or knowledge and consent. Even the English
cases on bankruptcy do not go so far
as to hold that an agent's
act of bankruptcy committed with the principal's knowledge and
consent or with his authority does not
bind the principal. (See
Halsbury, Laws of England, vol. 2, para. 22, p. 16 (Hailsham Ed.)).
I may add, however,
that the contention is based on a number of English decisions such as
Ex parte Blain, In re Sawers,
1879 (12) Ch. D. 522
, to the effect
that an act of bankruptcy must be a personal act or default and it
cannot be committed through an agent or by a
firm as such. BRETT,
L.J., indicated that a man cannot 'commit an act of bankruptcy by a
particular act of his agent which he has
not authorised and of which
act he has had no cognisance'. Where, however, a circular letter
suspending payment of debts was issued
by the bankrupt's accountants
with the knowledge and authority of the bankrupt, it was held to
constitute an act of bankruptcy
in In re J. R. Lamb, Appeal of Gibson
and H. Boland,
55 L.T. 817
at pp. 818 – 819… point.”
[24]
In
Walsh v Kruger
,
1965 (2) SA 765
(E), Munnik J said:
“
A careful
reading of the cases satisfies me that, unlike the position in
English law, an act of Insolvency can be committed through
an agent
but the Court must be satisfied that the agent acted with the
knowledge and consent of his principal”.
[4]
[25]
If one considers the context in which the letter of 12 April 2018 was
written, it is clear that settlement negotiations were
made in
respect of both Biothane and the Respondent in his personal capacity
as surety. The draft settlement agreement bears evidence
of this.
There were no allegations made that the Respondent did not have the
necessary authority to act on behalf of Biothane and
in fact, no such
challenge could in any event have been made given the Respondent’s
close relationship to Biothane. I am
of the view that given this
close relationship, Respondent being the only member of Biothane and
which, for all intents and purposes,
was the alter ego of Respondent,
committed an act of insolvency in his
personal
capacity.
[26]
The Applicant further relies on act of insolvency committed by the
Respondent in terms of
section 8(c)
of the
Insolvency Act. It
says
that on 20 April 2018, the respondent, without notice to the
Applicant, removed machinery and equipment from the premises
and by
removing same, the Applicant contends that it has lost all security
it had over the equipment in the form of a Lessor’s
Hypothec.
In response to this claim, the Respondent avers that the Applicant
was well aware and had full knowledge that machinery
and equipment,
which belonged to Biothane were in part disposed of by public auction
on 13 December 2017 and the full proceeds
thereof were used by
Biothane to partially settle the Applicant’s claim for arrear
rental. The remaining stock, machinery
and equipment in the workshop
area of the leased premises were disposed of and removed to storage
in April 2018 on the Applicant’s
own request in order to make
space for a new tenant who was meant to take occupation of the
workshop portion of the leased premises.
[27]
If one has regard to the Applicant’s founding affidavit, it is
clear that the Applicant had knowledge that the Respondent
had
planned the sale of some of Biothane’s equipment via an
auction. The allegation therefore, that the Respondent was disposing
of its assets without notice is not supported if one has regard to
the correspondence of 5 December 2017 from the legal representative
of the Respondent to Applicant in which he advises the following:
“
Soos u bewus is,
word ‘n veiling van roerende bates op of omtrent 14 Desember
2017 op die perseel gehou en onderneem ons klient
om die grootse
gedeelte van die netto opbrengs daarvan, sodra dit deur die afslaers
geïn
en deur ons klient ontvang word,
aan u te betaal ter delging van enige agterstallige huurgeld wat dan
nog uitstaande mag wees
…”
.
[28]
In its reply, the Applicant merely stated that this demonstrated that
the equipment and machinery sold at the public auction
belonged to
Respondent and not Biothane. This however is contrary to its founding
affidavit in which it stated that “
the
respondent advised that he had no funds to pay the arrear rental but
proposed that he would settle the debt from the proceeds
of the sale
of certain of his assets and that of Biothane and that he had
arranged a public auction during December 2017 for such
purpose
.”
It must therefore be accepted on the basis of the Plascon-Evans
rule
[5]
that the Applicant
on its own version, knew about the disposition. However, this is not
the end of the enquiry. Given that
a sale of the Respondent’s
and Biothane’s assets did in fact occur, would this qualify as
a
disposition
within the meaning of the Act and upon which the Applicant can rely
as a ground of insolvency? It seems to me that the real complaint
by
the Applicant is not so much that the disposition has been made to
prefer one creditor above the other. What is actually complained
of
is the fact that it expected to be paid more or all of the proceeds
of the sale of the auction than it ultimately was paid.
In my view, a
creditor cannot accede to the sale of a debtor’s assets with
the hope that
it
will ultimately be preferred above other creditors when the proceeds
of sale are received, and complain when it does not materialise,
or
the creditor is not satisfied with the amount received, and then
complain that there is a dispossession of assets and as a result,
that
it
is being prejudiced as a creditor. Put differently, a creditor cannot
raise unfair advantage or prejudice within the meaning of
sections
8(c) and (d) of the Act, where it is clear that the initial intention
of the creditor was that its debt should have been
extinguished and
consequently, should have been preferred. I am also not
persuaded that the Applicant has proven that there
was an intention
by the Respondent to prefer other creditors above it, in fact, as I
have just stated, quite the contrary is evident.
[29]
Now turning to the
bona fides
of the counter-claim. It is the
Respondent’s case that Biothane has a counterclaim for
improvements against the Applicant
and that it would be premature for
this court to decide on whether that counterclaim is valid. The
Respondent also argued that
the Applicant’s refusal to allow
Biothane to remove the improvements is unreasonable conduct and that
it is entitled to remove
the fixtures and fittings in terms of clause
6.1 of the lease agreement.
[30]
In this regard, it was argued that there are currently action
proceedings pending which have been instituted by Biothane against
the Applicant in order to determine either a claim for damages or
unjustified enrichment against the Applicant.
[31]
Mr Wessels for the Applicant relied on the comments made by Rogers J
in
Gap v
Goal Reach
2016 (1) SA 261
(WCC)
.
That court stated that whilst it is so that the general rule of
winding up proceedings should not be resorted to as a means
of
enforcing payment of a debt, the existence of which is
bona
fide
disputed on reasonable grounds and that liquidation proceedings are
not intended as a means of deciding claims which
are
genuinely and reasonably disputed, the so called ‘
Badenhorst
rule’
[6]
,
a distinction has to be drawn between factual disputes relating to
the respondent’s liability to the applicant and
disputes
relating to the other requirements for liquidation. At the
provisional stage the other requirements must be satisfied
on a
balance of probabilities.
[7]
[32]
Mr Wessels also argued that, despite the existence of a
counter-claim, a court has a general discretion and there is no
reason
for a court to generally dismiss an application purely on the
existence of same. In this regard, reliance was placed on the
dicta
of Binns-Ward J in
Absa
Bank Ltd v Erf 1252 Marine and Another (23255/2010)
[8]
who said at para 26:
“
In my view
reliance by a respondent on a ‘genuine and serious’
unliquidated counterclaim to oppose an application for
its a
liquidation is a quite distinguishable basis for resisting winding-up
from that premised on a bona fide and reasonable dispute
of an
alleged indebtedness to a creditor-applicant. As pointed out by
van Reenen J in Ter Beek, reliance by a respondent
company
on a counterclaim to avert a winding-up order actually entails an
admission by it of the alleged indebtedness to the applicant
relied
upon by the creditor applicant. The allegation of the existence
of the unliquidated counter-claim is nothing more
than the putting up
by the respondent of a basis upon which it is able to ask the court
to exercise its discretion against making
a winding-up order,
notwithstanding that the applicant may have satisfied the technical
requirements to achieve the remedy.
There is accordingly no
basis in our law in such circumstances to treat the application for
winding-up as an inappropriate procedure,
as a court would, applying
the Badenhorst rule, in the circumstances of a claim for winding-up
by a creditor when the existence
of the debt in question is
reasonably and bona fide disputed. For the same reason there is
no reason in our law for a court,
as a matter of principle, to adopt
a general disposition against the granting of the remedy just because
the existence of an unliquidated
counterclaim is alleged by the
respondent. There is also no basis in our law, in the
postulated circumstances, to apply s 347(1)
of the 1973
Companies Act
[9]
in a manner as would circumscribe the judge’s discretion, as
under English law.
”
[33]
In my view, the act of insolvency was committed by the Respondent in
both his personal capacity (as surety of Biothane) and
on behalf of
Biothane. Reliance for this conclusion can be had on the wording of
the settlement agreement. The litigation by Biothane
against
Applicant in my view does not detract from the actual act of
insolvency committed by the Respondent, even if Biothane is
successful. I am also not persuaded that the counter-claim is
bona fide
. As stated by Rogers J in Gap:
“
[26] I see no
reason for adopting a different approach when considering, in
liquidation proceedings, whether the applicant's claim
is bona fide
disputed on reasonable grounds. Bona fides relates to the
respondent's subjective state of mind, while reasonableness
has to do
with whether, objectively speaking, the facts alleged by the
respondent constitute in law a defence. The two elements
are
nevertheless interrelated because inadequacies in the statement of
the facts underlying the alleged defence may indicate that
the
respondent is not bona fide in asserting those facts. As
Hülse-Reutter makes clear, the objective requirement of
reasonable
grounds for a defence is not met by bald allegations
lacking in particularity; and, as appears from Breitenbach and
El-Naddaf,
bald allegations lacking in particularity are unlikely to
be sufficient to persuade a court that the respondent is bona fide
.”
[34]
Objectively, the lease agreement precluded any claims in terms of
improvements and set-off. That to my mind would be sufficient
to
persuade me that the Respondent’s counter-claim is not
bona
fide
. However, there are other considerations that reinforce this
belief. From the correspondence, it is clear that during December
2017, the main factor for consideration was the date upon which
Biothane would vacate the premises. The only settlement or “
aanbod
”,
which was proposed to the Applicant by the Respondent’s legal
representative, was that the lease agreement terminate
on 1 February
2018, that Biothane would vacate the premises by no later than 31
January 2018 and that once the proceeds of the
sale of assets were
received, that it would be paid “
ter delging van enige
agterstallige huurgeld wat dan nog uitstaande mag wees
”.
From the correspondence it is clear that the premises were not
vacated by the promised date. In Respondent’s letter
of 13
February 2018, he advised of improvements made to the premises, and
enquired from the Applicant “
indien julle belangstel is die
volgende items te koop
”, and whether they were interested
in purchasing the items. Thus on the Respondent’s own
admission, he was aware that
Biothane could not simply claim for the
improvements. It was only by April 2018, some four months after the
initial undertaking
to vacate the premises, that mention was made of
a possible counterclaim relating to the improvements. In my view, the
defence
is contrived.
[35]
An applicant in addition also has to show at a provisional stage of
sequestration that there is a reason to believe that it
will be an
advantage to creditors. It is common cause that the Respondent sold
assets belonging to himself in his personal capacity
and on behalf of
Biothane, to pay its debt. This is an indication that the Respondent
has financial challenges and that neither
he nor the company is
solvent to pay his and its debts. Although I am not persuaded by the
Applicant’s argument that there
was an intention by the
Respondent to dispose of his movables, I am satisfied that the
Respondent has failed to show, despite the
submission of a sparse
statement of assets and liabilities, that he solvent. In fact, I am
persuaded that his actions reflect otherwise.
The
Order
:
[36]
As a result, the following Order is made:
1.
The Respondent’s estate is provisionally
sequestrated.
2.
All persons who have a legitimate interest in the
outcome of this application are called to put forward reasons why
this court should
not order the final sequestration of the Respondent
on 28 November 2018 at 10h00 or soon thereafter as the matter may be
heard.
3.
A
copy of this Order must be forthwith served on:
3.1 The Respondent
personally;
3.2 The employees of the
Respondent, if any;
3.3 The trade union, if
any, to which such employee may belong;
3.4
The
Master; and
3.5
The
South African Revenue Services.
4. The costs of this
application are costs in the sequestration of the Respondent’s
estate.
__________________________
KUSEVITSKY
AJ
1.
[1]
Section
8 of the Act 24 of 1936 (as amended) provides as follows:
“
8 Acts
of insolvency
A debtor
commits an act of insolvency-
…
(g) if he gives
notice in writing to any one of his creditors that he is unable to
pay any of his debts;”
[2]
At para 13
[3]
Chenille
Industries v Vorster
1953 (2) SA 691
(O) at 698; Walsch v Kruger
1965 (2) SA 765
(E) at 759H
[4]
at 759H
[5]
Plascon-Evans
Plaints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635D
[6]
Badenhorst v Northern Construction Enterprises (Pty) Ltd
1956 (2) SA
346
(T) at 347H-348C
[7]
Gap at 267F-H
[8]
[2012] ZAWCHC 43
(15 May 2012) at
[9]
Act 61 of
1973.