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[2019] ZAWCHC 15
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He and She Investments (Pty) Ltd v Brand NO and Others; He and She Investments v Brand NO and Others (23198/18; 23199/18) [2019] ZAWCHC 15; 2019 (5) SA 492 (WCC) (26 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case
No.:
23198/18
In
the matter between:
HE
AND SHE INVESTMENTS (PTY)
LTD
A
pplicant
and
DEON
HENDRIK BRAND
N.O.
First
Respondent
MEYER
GOOSEN
Second
Respondent
ECLIPSE
SYSTEMS
Third
Respondent
BRIAN
RILEY
Fourth
Respondent
Case
No.:
23199/18
In
the matter between:
HE
AND SHE INVESTMENTS (PTY)
LTD
Applicant
and
DEON
HENDRIK BRAND
N.O.
First
Respondent
MEYER
GOOSEN
Second
Respondent
TYREMAC
TYRES AND TUBES
CC
Third
Respondent
MOGAMAD
FIROZ ABRAHAMS
Fourth
Respondent
Heard:
13 February 2019
Delivered:
26 February 2019
JUDGMENT
MYBURGH
AJ
:
Introduction
[1]
On
18 December 2018, He and She Investments (Pty) Limited (‘
the
plaintiff
’)
issued summons under case numbers 23198/2018 and 23199/2018 (‘
the
first claim
’)
and ‘
the
second claim
’).
Notices of intention to defend were served whereupon the plaintiff
applied for summary judgment in respect of both
claims. For
convenience, and due to the similarity between the two claims, the
applications were heard together.
[2]
Regarding
the parties:
1.
The plaintiff operates a
driving school.
2.
The first defendant in
both claims is Deon Hendrik Brand in his capacity as the executor of
the estate of the late Johanna Elizabeth
Goosen (‘
the
deceased
’ and
‘
the estate
’).
The plaintiff did not apply for summary judgment against the estate.
3.
T
he
second defendant in both claims is Meyer Goosen (‘
Goosen
’),
the son of the deceased and an erstwhile employee of the plaintiff.
4.
the
third defendant in the first claim was cited as Eclipse Systems
(‘
Eclipse
’).
Eclipse is, however, not a separate entity but rather the trading
name of the fourth defendant.
5.
The
fourth defendant in the first claim is Brian Riley (‘
Riley
’).
[1]
6.
The
third defendant in the second claim is Tyremac Tyres & Tubes CC
(‘
Tyremac
’).
7.
The
fourth defendant in the second claim, Mogamad Firoz Abrahams
(‘
Abrahams
’).
Abrahams refers to Tyremac as “
his
business
”.
[3]
Both
claims arise out of the abuse of fleet management credit cards
(‘
fleet
cards
’)
issued by Absa Bank Limited to the plaintiff and the misappropriation
of the proceeds of the transactions put through on
the fleet cards.
The
applicable legal principles
[4]
The
applications are brought in terms of Rule 32(1)(b), which allows a
plaintiff to apply for summary judgment for a liquidated
amount in
money as is the case here.
[5]
When
faced with a summary judgment application, a defendant has two
options, of which the second applies in this case. In
this
regard, Rule 32(3)(b) provides as follows:
“
(3)
Upon the hearing of an application for summary judgment the defendant
may- …
(b)
satisfy the court by affidavit (which shall be delivered before noon
on the court day but one preceding the day on which the
application
is to be heard) or with the leave of the court by oral evidence of
himself or herself or of any other person who can
swear positively to
the fact
that
he has a bona fide defence to the action; such affidavit or evidence
shall disclose fully the nature and grounds of the defence
and the
material facts relied upon therefor
”
.
[emphasis supplied]
[6]
The question of what
constitutes a sufficient defence to ward off summary judgment has
been the subject matter of a many reported
cases. If granted, summary
judgment significantly abbreviates the judicial process by obviating
the holding of a trial. It is also
so that summary judgment is open
to abuse by both parties. It is sometimes utilised by a plaintiff in
order to force a defendant
to hastily go on affidavit even though the
former is aware that the latter has a defence that should be tested
in a trial. The
affidavit is then used for cross-examination purposes
at the trial. It also does happen that defendants, well knowing that
they
have do not have a sufficient defence, cobble together an
affidavit in the hope that, by kicking up enough dust, this
deficiency
will remain hidden for a while longer. For these reasons,
it is instructive to revisit the legal principles pertaining to
summary
judgment as well the manner in which the principles are given
content in their application to the facts.
[7]
Counsel for the plaintiff
referred to the oft quoted case,
Maharaj
v Barclays National Bank Ltd
[2]
where Corbett, JA held that:
“
Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the Court
by affidavit that he
has a bona fide defence to the claim. Where the defence is based upon
facts, in the sense that material facts
alleged by the plaintiff in
his summons, or combined summons, are disputed or new facts are
alleged constituting a defence, the
Court does not attempt to decide
these issues or to determine whether or not there is a balance of
probabilities in favour of the
one party or the other.
All
that the Court enquires into is: (a) whether the defendant has
“fully” disclosed the nature and grounds of his defence
and the material facts upon which it is founded, and (b) whether on
the facts so disclosed the defendant appears to have, as to
either
the whole or part of the claim, a defence which is both bona fide and
good in law
.
If satisfied on these matters the Court must refuse summary judgment,
either wholly or in part, as the case may be. The word “fully”,
as used in the context of the rule (and its predecessors), has been
the cause of some judicial controversy in the past. It connotes,
in
my view, that,
while
the defendant need not deal exhaustively with the facts and the
evidence relied upon to substantiate them, he must at least
disclose
his defence and the
material facts upon which it is based with sufficient particularity
and completeness to enable the Court to decide whether the
affidavit
discloses a bona fide defence
”.
[emphasis supplied]
[8]
In
Maharaj,
the plaintiff, a
bank, had paid out an amount on behalf of the defendant and claimed
repayment of that amount, along with interest.
The defendant, in an
affidavit which the court described as “
not
a wholly satisfactory document
”
[3]
explained that he had instructed the bank to stop the payments on
which the claim was based and that thereafter he “
froze
his account
”.
[4]
Hence, the defendant said, in the absence of his instruction, he did
not owe the defendant the money as the bank had advanced the
money
without a mandate.
[9]
His Lordship Corbett, JA
found that “
Viewing
the affidavit as a whole, in the context of the claim set forth in
the plaintiff’s summons, I am of the view that
it does appear
to raise a bona fide defence and that it has disclosed this defence
and the material facts upon which it is founded
with just-and only
just-sufficient particularity and completeness in order to comply
with Rule 32 (3) (b)
”
.
[5]
[10]
In my view, the
Maharaj
case emphasises the
importance of scrutinising the defendants’ affidavit as a
whole, the test being whether, despite its shortcomings,
a defence is
disclosed or not. The case recognises that a defendant’s
position is not always precisely set out in an affidavit.
However,
there is a threshold in that, despite the affidavit’s
imperfections, there must be a defence disclosed. Furthermore,
it
makes it clear that a defence must be set out with sufficient
particularity and, importantly, that it must be sufficiently
complete. If the setting out of a defence is not sufficiently
complete, a defence is not disclosed. It is not for a court to
speculate
and complete a defence for a defendant.
[11]
Van Loggerenberg
et
al.
, with reference
to a number of cases, in particular the
Joob
Investments
case
[6]
,
comments as follows on the subject at hand:
“
The remedy provided by
the rule has for many years been regarded as an extraordinary and a
very stringent one in that it closes
the doors of the court to the
defendant and permits a judgment to be given without a trial. In Joob
Investments (Pty) Limited v
Stocks Mavundla Zek Joint Venture the
Supreme Court of Appeal, in holding that the time has perhaps come to
discard labels such
as ‘extraordinary’ and ‘drastic’,
stated:
‘
The rationale for
summary judgment proceedings is impeccable. The procedure is not
intended to deprive a defendant with a triable
issue or a sustainable
defence of her/his day in court. After almost a century of successful
application in our courts, summary
judgment proceedings can hardly
continue to be described as extraordinary. Our courts, both of first
instance and at appellate
level, have during that time rightly been
trusted to ensure that a defendant with a triable issue is not shut
out. In the Maharaj
case at 425G-426E, Corbett JA, was keen to ensure
first, an examination of whether there has been sufficient disclosure
by a defendant
of the nature and grounds of his defence and the facts
upon which it is founded. The second consideration is that the
defence so
disclosed must be both bona fide and good in law. A court
which is satisfied that this threshold has been crossed is then bound
to refuse summary judgment. Corbett JA also warned against requiring
of a defendant the precision apposite to pleadings. However,
the
learned judge was equally astute to ensure that recalcitrant debtors
pay what is due to a creditor.
Having regard to its purpose
and its proper application, summary judgment proceedings only hold
terrors and are ‘drastic’
for a defendant who has no
defence. Perhaps the time has come to discard these labels and to
concentrate rather on the proper application
of the rule, as set out
with customary clarity and elegance by Corbett JA in the Maharaj case
at 425G-426E.’
”
,
[7]
[12]
Regarding the requirement
that it must be
bona
fide
defence, Van
Loggerenberg states the following:
“
All that the court
enquires, in deciding whether the defendant has set out a bona fide
defence, is (a) whether the defendant has
disclosed the nature and
grounds of his defence; and (b) whether on the facts so disclosed the
defendant appears to have, as to
either the whole or part of the
claim, a defence which is bona fide and good in law.
Bona fides in the sub-rule
cannot be given its literal meaning;
the
sub-rule does not require the defendant to establish his bona fides;
it is the defence which must be bona fide, and whether
it is bona
fide or not depends upon the merits of that defence as raised in the
defendant’s affidavit
.
The subrule does not require the defendant to satisfy the court that
his allegations are believed by him to be true.
It will be
sufficient if the defendant swears to a defence, valid in law, in the
manner which is not inherently or seriously unconvincing;
or, put
differently if his affidavit shows that there is a reasonable
possibility that the defence he advances may succeed on trial.
If, for example, the defendant omits facts upon which a defence can
be based or set out the facts upon which he does rely in such
a
manner that the court is unable to say that
if
they are established they will constitute a defence to their action
or some part of it, he will fail in his defence
”
.
[8]
[emphasis supplied]
[13]
The last of the cases
referred to by the learned author is
Trust
Bank of Africa Ltd. V Wassenaar,
another
case involving a bank – client relationship. In this instance
the plaintiff claimed payment of money lent and advanced
by way of
overdraft facilities. The defendant defended the application for
summary judgment on two grounds. Firstly, he contended
that he had
not concluded a contract with the plaintiff to advance the amount it
had but rather a lesser amount. Secondly,
he argued that the
plaintiff, by virtue of the actions of one of its employees, was
estopped from claiming in excess of the R800.00
overdraft that he had
agreed to.
[14]
His Lordship Milne J,
dealing with deficiencies in the defendant’s affidavit, held as
follows:
“
There is, furthermore,
a very serious defect or set of defects in the defendant’s
affidavit, namely, that no information whatsoever
is given as to:
(a)
what amounts were
‘furnished’ by the defendant to Rossouw;
(b)
what amounts were
drawn by the defendant; and
(c)
the dates when
such amounts were furnished or drawn
”
.
[9]
[15]
This is, in my view, a
critical consideration, particularly in the present matter. In some
instances, defects in the setting out
of the defendant’s case
are excusable on the basis that, seen as a whole, a case is
disclosed, as was the case in
Maharaj.
However, in other
instances, the convenient failure to provide certain information, and
/ or the making of statements that appear
to be vague by design,
amount to defects that are so serious as to scupper the defendant’s
defence.
[16]
Finally, in
Pansera
Builders Suppliers (Pty) Ltd
v Van der Merwe (t/a
Van der Merwe’s Transport
[10]
,
Selikowitz, AJ (as he then was) held that:
“
The discretion must be
exercised judicially and upon the information which is before the
Court.
The
Court must guard against speculation and conjecture and be astute not
to substitute these for the actual information which has
been placed
before it
.
Where the facts before the Court raise a doubt as to whether the
plaintiff’s case is what has been described as ‘unanswerable’,
summary judgment should be refused.
......
Where
there is an absence of the necessary allegations upon which a defence
can be founded, it would be contrary to a judicial approach
to
exercise a discretion against the plaintiff and in favour of the
defendant
”
.
[emphasis supplied]
[17]
In
Pansera,
the plaintiff, as
owner of a factory, claimed ejectment. The defendant relied on an
option to remain in the factory for a further
12 months but failed to
state that he had exercised the option. It was argued on this behalf
that the court should “
imply
that the defendant exercised the option from the facts
”.
[11]
His Lordship declined the invitation to do so, holding that:
“
If I were to accede to
this request I would not only have to engage in speculation and
conjecture but would have to import an essential
allegation which
defendant has not made. In examining those cases to which the Court
was referred and in which Courts have exercised
a discretion in
defendant’s favour, it is apparent that the Court has on each
occasion acted in a situation where the defendant
has by his positive
allegation provided the skeleton of a defence but has failed to
sufficiently flesh it out so that it can be
held to sustain an
independent existence
”.
[12]
[18]
As alluded to above His
Lordship decided that he was being asked to do more that flesh out
the skeleton and for that reason he granted
summary judgment. This
case reaffirms the principle set out in
Maharaj,
i.e. that a setting
out of a defence must be sufficiently complete and particularised. An
imprecise setting out of a defence can
be excused but, in my view,
not an incomplete defence. Furthermore, a lack of particularity as to
critical elements of the defence
is problematic as it raises
questions as to why particulars have been left out or expressed in
vague terms. It must be assumed
that in most cases things are left
unsaid because there is no factual underpinning to say them.
The
claims
[19]
Regarding the first
claim, the plaintiff alleges that the deceased, or Goosen, or both of
them, colluded with Riley by utilising
its fleet cards to
misappropriate R4 034 706.47. This, it alleges, was
done using the credit card facilities at
Eclipse. The proceeds of the
fraudulent scheme, less 20% commission that was retained by Riley,
were then paid into Goosen’s
bank account and so the plaintiff
was impoverished at the expense of Riley and Goosen.
[20]
It is common cause that,
while these transactions were not underpinned by supplies of goods or
services, they were represented to
be so. Thus, a fraud was
perpetrated on both Absa Bank and the plaintiff.
[21]
The second claim is
similar, the difference being that instead of Riley, the other
parties involved were Abrahams and Tyremac, and
the amount is
R2 446 735.29.
[22]
Goosen proffered the
following as a defence:
1.
The plaintiff is a family
business that used to be run by the deceased and her three sisters.
The children of the sisters, including
himself, were employed by the
plaintiff, but had no decision-making powers and simply had to
execute the instructions of the sisters.
2.
When the deceased passed
away, her share of the plaintiff was purchased by the remaining
sisters and the proceeds paid into a trust,
of which he and his
siblings are the beneficiaries.
3.
Goosen admits that
“
certain
transactions
”
with the fleet cards were arranged by him, working with with Riley,
Abrahams and Tyremac and that the proceeds of these
transactions were
paid into his personal bank account less the 20% commission retained
by Riley and Abrahams/Tyremac.
4.
He explains that at the
time he did not realise that the transactions might be fraudulent,
that he was instructed by the deceased
to do what he had done. The
deceased also told him to do it (he says) and to utilise the proceeds
for the maintenance, repairs
and upgrading of Klein Saxenburg Farm
“
after
Plaintiff’s erstwhile directors had resolved to maintain the
farm on which their parents and family members live
”.
5.
He denies that the
proceeds were for his personal use or benefit, other than by virtue
of the fact that he resides on the farm.
He states the he did not
have any power or authority to stop the payments and that he was in
any manner enriched by the payments.
However, he provided no
particularity at all regarding the use of the funds diverted to his
account despite this being a relatively
easy thing to do.
Furthermore, one would have expected that, given that a critical part
of his defence was that he gained no benefit
from funds transferred
into his account, he would have provided more information to show
that this was indeed the case. His
failure to do so is telling.
6.
He denies fault on his
part, stating that he was neither negligent nor intentionally part of
any fraud and suggests that the plaintiff
should claim damages from
Brand, Eclipse and Riley. This is a denial without any substance.
Goosen participated in a scheme that
was, on his own version,
fraudulent.
7.
Finally, Goosen states
that the plaintiff, on 26 June 2018, borrowed money from him and that
this would form part of a counterclaim.
Again, Goosen provides no
particularity. He does not state where the loan agreement was
concluded, who represented the plaintiff,
or whether the loan
agreement was oral or in writing. His lack of particularity is
strange given that he was a party to the agreement
and thus the
information would surely be within his knowledge.
8.
To use His Lordship
Selikowitz’s analogy in
Pansera,
Goosen does not
provide the skeleton of a defence and nor does he do so in respect of
his counterclaim.
[23]
Riley’s defence is
as follows:
1.
The deceased asked him to
find someone who had a credit card machine as she wanted to effect
transactions as the plaintiff “
required
cash liquidity
”
and that whoever assisted her in doing so, would earn a 20%
commission on each transaction. As with Goosen, Riley’s
setting
out of the agreement is remarkably scant. He too does not provide the
bare bones of this agreement which founds his defence.
2.
The then says that the
deceased also advised him that the 80% of each transaction, after
deduction of his commission, should be
paid into Goosen’s bank
account. How this would assist the plaintiff in improving its cash
liquidity, when, on the face of
it, the opposite would be the case,
Riley does not explain.
3.
Finally, Riley says that
he obtained a credit card machine, did as requested and he did not
think this to be fraudulent. His statement
that he did not think he
was committing a fraud when the scheme was
per
se
fraudulent is
conveniently bald. It is another example of a lack of “
sufficient
particularity”
of the kind referred to by His Lordship Corbett, JA in
Maharaj.
[24]
Abrahams’ defence
is similar to that of Riley:
1.
In 2014 he was approached
by Riley and advised that the deceased “
needed
a vendor to process card transactions in order to create cash
liquidity in the company
”.
2.
The deceased, who spoke
to him telephonically, explained that if he was willing to do so, he
would earn a 20% commission on each
transaction.
3.
The proposal was
acceptable to him, as he thought he was assisting the applicant with
its finances and cash flow.
4.
He denies that he had any
intention of misappropriating the funds, but he does not deny that he
retained the 20% commission on each
transaction.
5.
As with Goosen and Riley,
Abrahams’ affidavit is sparse when it comes to the essentials
of his defence. Questions such as
when and where the alleged
agreement to assist the plaintiff was concluded, are left unanswered.
He does not explain the exorbitant
commission or how payment into
Goosen’s bank account could possibly assist the plaintiff’s
cash-flow. His convenient
lack of particularity undermines his bald
assertion that he was not intentionally party to the misappropriation
of the plaintiff’s
money.
[25]
Setting aside (for the
moment) the lack of particularity and incompleteness of the defences
set out by Goosen, Riley, Abrahams and
Tyremac, all raise the defence
that the scheme was born of an agreement between them and the
deceased acting on behalf of the plaintiff.
[26]
The question is whether
this constitutes a good defence in law and in my view, as argued by
counsel for the plaintiff, it does not.
[27]
Each transaction, that
was put though, without there being an underlying supply of services
or goods, was fraudulent for the following
reasons:
1.
The scheme involved a
misrepresentation that the transactions were underpinned by supplies
of goods and services when they knew
this was not the case.
2.
This was
per
se
an abuse of the
fleet cards and a fraud perpetrated on the bank that issued the
cards. It was also a fraud perpetrated on the plaintiff
which owned
the cards and would be impoverished by each transaction, a fleet card
being a species of credit card.
3.
The proceeds of the
transactions were paid into Goosen’s bank account and not the
plaintiff’s bank account and this
they all knew. Riley and
Abrahams were the ones who transferred the money, less 20% from their
business bank accounts to that of
Goosen. This also makes a mockery
of their contention that they were assisting the plaintiff to finance
itself. If that were the
case they would have transferred the money
to the plaintiff’s bank account.
4.
The retention of an
exorbitant 20% in order to effect transactions that were ostensibly
to finance the plaintiff without any services
simply does not make
sense. The question must rightly be asked why the plaintiff would do
so, if it in any event had access to
the fleet card credit facility.
[28]
The transactions were
thus clearly illegal and they all knew this to be the case whatever
they say motivated them to participate
in the scheme, for example to
assist the plaintiff or, in Goosen’s case, to maintain a farm
which does not belong to the
plaintiff.
[29]
Thus, while the
allegation that the scheme was born out of an agreement is highly
questionable, in any event, it unenforceable due
to it being illegal.
An agreement is illegal if it is against public policy or good
morals
[13]
.
It follows that reliance on an illegal and hence unenforceable
agreement does not constitute a valid defence in law.
[30]
Furthermore, in the
context of the law of delict any consent must be permitted by the
legal order; in other words, the consent must
not be
contra
bonos mores
otherwise
it does not constitute valid consent.
[14]
[31]
Goosen, Riley and
Abrahams contend that the deceased gave them the consent to act
fraudulently. This amounts to consent to
act unlawfully, which
is
contra bonos mores
,
and is thus not a defence on which the defendants can rely.
Goosen’s
counterclaim
[32]
Goosen claims that he has
a counterclaim for monies loaned to the amount of R305 000.00.
[33]
As mentioned above, the
counterclaim is devoid of particulars. Goosen merely states that “
On
26 June 2018 Plaintiff borrowed the amount of R305 000,00 from
me at its special instance and request, which amount is due
and
payable to me, alternatively payment being demanded herewith. I
therefore have a counterclaim of R305 000,00 against Plaintiff
”.
[34]
The setting out of the
counterclaim is so conveniently austere that it does not cross the
threshold. It is not even the skeleton
of a claim.
The
defence of prescription
[35]
Prescription starts to
run when the debt is due, and in terms of
section 12(3)
of the
Prescription Act no 68 of 1969
a debt only becomes due when a
creditor has knowledge of the identity of the debtor and the facts
from which it arises.
[36]
For this reason, the
defence of prescription does not have merit in this matter as the
plaintiff prosecuted its claims well within
the requisite three years
of becoming aware of the claims.
Conclusion
[37]
In the
circumstances I order as follows:
1.
In respect of Case No.
23198/2018 the second, third and fourth respondents, on a joint and
several basis, are ordered to pay the
applicant:
(a)
the amount of R4 034 806.47
plus interest on each of the transactions, as set out in the schedule
“ES1” attached
to the particulars of claim, at the legal
rate due, calculated from the date of each transaction to the date of
payment;
(b)
costs of suit.
2.
In respect of Case No.
23199/2018 the second, third and fourth respondents, on a joint and
several basis, are ordered to pay the
applicant:
(a)
the amounts of
R2 446 735.29 as set out in Annexure “TTT1” and
R504 410.22 as set out in Annexure “TTT2”
together
with interest, at the legal rate from the date of each transaction to
the date of payment.
(b)
costs of suit.
______________________________
P
A MYBURGH
Acting
Judge of the High Court
26
February 2019
Appearances
:
For
the plaintiff: Advocate J Joubert
Instructed
by Marais Muller Hendricks Inc.
For
the second defendant: Ms Andale Benjamin
For
third and fourth defendants: Advocate L Liebenberg
Instructed
by Coulters van der Walt
[1]
Riley’s full names are
Brian Roger Lloyd Riley. When I refer to Eclipse it is a reference
to the business run by Riley as
a sole proprietorship.
[2]
1976 (1) SA
418
(A) at
426 A-D.
[3]
426 G-H.
[4]
428 B.
[5]
428 B-D.
[6]
Joob
Investment v Stocks Mavundla Zek
2009
(5) SA 1
(SCA) at para 31.
[7]
Van Loggerenberg,
Superior
Court Practice
, 2
nd
Ed. Original Service D-1381-D1-382 and the cases cited therein.
[8]
Van Loggerenberg, Service 5,
2017, D1-411 and the cases cited therein, in particular
Breitenbach
v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T);
Silver
Leaf Pastry and Confectionary Co. (Pty) Limited v Joubert
1972 (1) SA 125
(C) at 129;
Wright
v Van Zyl
1951 (3)
SA 488
(C);
Border
Concrete Engineering Co. (Pty) Limited v Knickelbein
1982 (2) SA 648
(E) at 651 and
Trust
Bank of Africa Ltd v Wassenaar
1972
(3) SA 139
(D) at 144.
[9]
143 F–G.
[10]
1986
(3) SA 654 (C).
[11]
658 B–C.
[12]
659 E-G.
[13]
Sasfin v Beukes
1989 (1) SA
1
(A)
and
Bredenkamp
v Standard Bank of SA Ltd
2010
(4) SA 468
(SCA).
[14]
Neethling,
Potgieter and Visser, Law of Delict
,
Seventh Edition at p. 113.