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[2011] ZAGPJHC 19
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ABSA Bank Limited v Van Eeden and Others (2011 (4) SA 430 (GSJ)) [2011] ZAGPJHC 19; 49918/2009 (22 March 2011)
IN
THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE
No. 49918/2009
DATE:22/03/2011
REPORTABLE
In the matter
between:
ABSA
BANK LIMITED
..........................................
Applicant
and
LYNETTE
VAN EEDEN
..................................
1
ST
Respondent
THE
MINISTER FOR SAFETY & SECURITY
.
2
ND
Respondent
THE
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE
............
3
RD
Respondent
THE
CITY OF JOHANNESBURG (METROPOLI-
TAN
POLICE DEPARTMENT, POLICE ADMIN-
ISTRATION
AND LICENSING SERVICES
)
.....
4
TH
Respondent
LANGLAAGTE
TRUCK & CAR CC
..................
5
TH
Respondent
ROGER
DUNCAN BUCK
.................................
6
TH
Respondent
HESTER
MARIA BOTHA (Sheriff of the above
Honourable
Court,
Johannesburg West & Soweto
)
…
.................................................................................
7
TH
Respondent
______________________________________________________________
JUDGMENT
______________________________________________________________
WILLIS J:
[1] The applicant
has approached the court by way of motion proceedings for an order
setting aside the sale in execution held on
14 September 2009 in
terms of which a 2005 model Nissan X-trail 2.5 SEL (R55) was sold to
the fifth respondent, Langlaagte Truck
& Car CC (“Langlaagte”).
The applicant also seeks an order that Langlaagte return the vehicle
to the applicant
against payment by the seventh respondent, the
sheriff, to Langlaagte of the monies which Langlaagte has paid to the
sheriff at
the sale in execution. Both the applicant and the sheriff
have made it clear that they consider this case to be one of critical
public importance.
[2] The execution
creditor and debtor have also been cited as respondents as have the
Minister for Safety and Security, the National
Commissioner of the
South African Police Service and the City of Johannesburg
(Metropolitan Police Department, Police Administration
and Licensing
Services) by reason of their potential interest in the matter. The
applicant has been explicit in its desire that
this should be treated
as a test case. Of the respondents, only the sheriff opposed the
relief sought. Her defence was that she
or her deputy had fully
complied with the Magistrates’ Courts’ Rules relating to
the sale in execution, and had done
all that could reasonably have
been expected of them in terms to taking steps to safeguard the
interests of persons such as the
applicant. The matter was referred
to oral evidence. On 10
th
March 2011, I granted the order which appears at the end on this
judgment. I indicated that I would deliver my judgment giving
my
reasons later. These are they.
[3] The applicant
is the owner of the vehicle. In August 2007 in Roodepoort the
applicant entered into an instalment sale agreement
with Lynette van
Eeden, the first respondent in terms of which it sold the vehicle to
her. The transfer of ownership of the vehicle
from the applicant to
the first respondent was subject to the suspensive condition that the
first respondent pay the applicant
the full amount owing in terms of
the agreement. The first respondent failed to maintain regular
monthly instalments as was required
in terms of the agreement.
[4] The applicant
served a notice in terms of section 129 of the National Credit Act 34
of 2005 (“the NCA”) upon the
first respondent on 6
th
August, 2009. The first respondent having failed to respond to the
notice, the applicant issued summons against her for the usual
relief
in such instances which included confirmation of the cancellation of
the agreement and the return of the vehicle to the
applicant. The
applicant was awaiting default judgment against the first respondent
when the sheriff sold the vehicle to the fifth
respondent at a sale
in execution for R69 500. The execution creditor was not the
applicant but the sixth respondent, who had instituted
action against
the first respondent in the Randburg Magistrate’s Court and
obtained judgment against her.
[5] In her
answering affidavit, the sheriff outlined the following sequence of
events: (i) the sheriff’s office received a
letter from an
attorney, acting on behalf of the judgment creditor, on 8
th
July, 2009 in which the sheriff was instructed to proceed to attach
property of the first respondent, the judgment debtor and to
sell the
same in execution; (ii) a copy of the warrant of execution was
attached to the letter as well as a Rule 38 indemnity;
(iii) the
letter addressed to the sheriff, pertinently required the sheriff was
required to proceed to the first respondent’s
premises to
effect an attachment and remove any vehicles situated thereat; (iv)
although the first respondent had chosen 17 Moray
Street, Bryanston
as her
domicilium
citandi et executandi
,
the
sheriff’s deputies, as instructed by the execution creditor,
went to 88 Maluti Drive, Northcliff where they did not speak
to or
encounter the first respondent but someone else, one Rudie de Wet
from whom they demanded payment to satisfy the writ; and
(v) Mr de
Wet indicated that he was unable to pay the amount claimed, whereupon
the deputies attached three vehicles, the one which
has given rise in
this application.
[6] During the
hearing of oral evidence, both Mr Sarel Van Deventer, the Deputy
Director, Vehicle Registration and Licensing for
the Gauteng
Provincial Government, employed in the Department of Roads and
Transport and Mr Karlie Heidt, the Head of Licensing
in the
Department of Transport in City of Johannesburg, testified on behalf
of the applicant.
[7] Messrs Van
Deventer and Heidt testified that the document upon which the sheriff
had relied in her answering affidavit was one
which was used to
obtain a Clearance Certificate from the South African Police
Services. This certificate would merely indicate
that there had been
no reports to the police that the vehicle had been stolen or robbed.
They confirmed that their official computerised
records had a
register, for all licensed vehicles in the province and the city
respectively, of the “title holder”
(the person whom
lawyers would ordinarily call the owner – i.e. a person in the
position of the applicant) as well as the
“owner” (the
person whom lawyers would normally call the
bona
fide
possessor, the
person who drives around in the vehicle as if owner and who is looked
to for the payment of fines, licenses, etc).
I deal with the
definitions of “owner” and “title holder” in
the National Road Traffic Act in paragraphs
[20] and [21] below.
[8] These two
witnesses said it would be a simple matter for the sheriff or her
deputies to apply to the respective departments
in both the Province
and the City on a standard form for information as to the “title
holder” and the “owner”
of a vehicle. This is
provided for in terms of Regulation 64 of the prevailing regulations
promulgated in terms of the
National Road Traffic Act, No. 93 of
1996
. The fee was small – about R60. They said that there were
confident that their departments would be willing to negotiate
sensibly with the sheriffs for some kind of fair and equitable system
to provide access to this information such that the sheriffs
would
not be left “out of pocket”.
[9] They both
emphasized that it was of the utmost importance, for the sake of good
order in the province and the city, that sheriffs
should ascertain
such facts, relevant to title, before holding sales in execution
which could result in embarrassment, inconvenience
and financial loss
for entirely innocent parties.
[10] The “police
clearance certificate” which was issued in respect of this
vehicle on 21
st
September, 2009 contains disturbing inaccuracies and glaring
omissions. This certificate was issued in response to the sheriff’s
request for a certificate on 15
th
September, 2009, the day after the sale in execution. The certificate
records that “the business” had been liquidated
and that
it was quite in order for the vehicle to be transferred to the fifth
respondent.
[11] The sheriff
herself testified. On her own admission, she took no steps to
ascertain whether the vehicle was subject to an instalment
sale or
suspensive sale agreement or whether any one such as the applicant
had any interest in the vehicle. She seemed to think
that it sufficed
that she had requested a police clearance certificate.
[12] Under
cross-examination, the sheriff conceded that she had acted in
contravention of
Regulation 53
of the Regulations promulgated under
the
National Road Traffic Act because
she proceeded with the sale
without complying therewith. This Regulation provides that:
No
person shall, either for himself or herself, the State or, on behalf
of another person dispose of or deliver or trade a motor
vehicle
unless the registration certificate, and if the motor vehicle is
required to be licensed, the motor vehicle licence accompanies
the
motor vehicle concerned.
[13] The sheriff
accepted that the
National Road Traffic Act applied
to her in her
capacity as sheriff inasmuch as
section 88
thereof provides that
“This Act shall bind the state and any person in the service of
the State...”
[14] At certain
stages in her evidence the sheriff seemed to consider it adequate
that she had advertised the proposed sale in execution
of the vehicle
in a local newspaper. She said that the applicant could have read
the newspaper and should have noticed that its
vehicle was to be sold
as the registration number, being the number on the “number
plate” appeared in the advertisement.
The applicant has,
however, pointed out that this would in no way alert it to the
impending sale of a vehicle in which it has
an interest because, when
vehicles are sold in terms of the NCA, they have not yet been
allocated registration numbers.
[15] The sheriff
conceded under cross-examination that her office had overlooked and
failed to follow the procedure provided for
in Rule 42 of the Rules
of Court, or the provisions of the Road Traffic Act and the
Regulations. She was amenable to doing so in
future. She accepted
that she could recover her “necessary and reasonable expenses”
relating to a sale in execution
from the execution creditor and that
the fee of some R60- for a search of information held by the Province
or the City would fall
under this head.
[16] Rule 42(2) of
the Rules under the
Magistrates’ Courts Act, No. 32 of 1944
provides as follows:
2. (2)
Where the movable property sought to be attached is the interest of
the execution debtor in property pledged, leased or sold
under a
suspensive condition to or by a third person or is under the
supervision or control of a third person;
attachment
shall be effected by service by the Sheriff on the execution debtor
and on such third person of notice of the attachment
with a copy of
the warrant of execution, which service may be effected as if such
notice were a summons; provided that if service
cannot be effected
in any manner prescribed, the Court may make an order allowing
service to be effected in a manner stated in
the order;
the
Sheriff may, upon exhibiting the original of such warrant of
execution to the pledgee, lessor, lessee, purchaser, seller or
such
other third person, enter upon the premises where such property is
and make an inventory and valuation of the said property.
[17] Mr
Meyer
,
who appeared for the applicant, submitted that a plain reading of
this Rule was the sheriff was obliged to effect service of the
notice
of attachment and warrant of execution on the applicant and that only
once the original warrant of execution had been shown
to the
applicant could the sheriff proceed to attach the property. I agree.
[18] I also accept
the submissions of Mr
Meyer
that this Rule must
be read together with
section 68
(3) of the Magistrate’s Court
Act which provides that the sheriff may attach and sell in execution
“the interest of
the execution debtor in any movable property
belonging to him and pledged or sold under a suspensive condition to
a third party,
and may also sell the interest of the execution
debtor’s property, movable or immovable property, or sold to
him under any
hire purchase contract or under a suspensive
condition.”
[19] Section 68
(3) of the Magistrate's Court Act makes specific reference to “any
hire purchase contract or under a suspensive
condition”. I
accept that among the consequences of this provision is that the
purchaser at the sale in execution does not
necessarily acquire
ownership in the goods, but merely acquires the execution debtor’s
interest in the vehicle, which is
the right to possess and enjoy the
vehicle and to become the owner thereof when the instalments due have
been made.
See
The Trustbank of
Africa Limited v Imperial Garage and Filling Station.
1
The facts of this case indicate strongly that the purchaser had no
intention of acquiring this mere residual interest. Against
the
canvas of all the facts in this case it would make no sense to try to
address this aspect in an alternative order by the court.
[20] In the
definitions section of the
National Road Traffic Act “Owner
”
in relation to a motor vehicle means:
(a)
the
person who has the right to the use and enjoyment of the vehicle in
terms of the common law or a contractual agreement with
the
titleholder of such vehicle;
(b) any
person referred to in paragraph (a) for a period during which such
person has failed to return that vehicle to the titleholder
in
accordance with the contractual agreement referred to in paragraph
(a) or;
a
motor dealer…”
[21] The word
“titleholder” is defined as meaning:
(a) the
person who has to give permission for the alienation of that vehicle
in terms of a contractual agreement with the owner
of such vehicle;
or
(b) a
person who has the right to alienate that vehicle in terms of the
common law, and who is registered as such in accordance
with the
Regulations under
Section 4.
[22] I agree with
Mr
Meyer
that
if
Rule 42
is read together with the
National Road Traffic Act, there
is a clear legislative intention is that person such as the applicant
should not be deprived of their interest in a vehicle such
as the one
in question without being properly informed before the sale in
execution takes place in order that they can then take
steps to
protect their interest.
[23] Mr
Saint
,
who appeared for the sheriff, relied very strongly on the provisions
of
section 70
of the
Magistrates’ Courts Act which
reads as
follows: “A sale in execution by the messenger shall not, in
the case of a movable property after the delivery thereof
or in the
case of immovable property after registration of transfer be liable
to be impeached as against a purchaser in good faith
and without
notice of any defect”.
[24]
Section 70
appears to have been intended to protect to a purchaser in good faith
and who had no notice of any defect in title.
In
casu
, the purchaser
does not oppose the application. It is the sheriff who does so. In
any event, nowhere in these papers is there
any reliance on the
purchaser having been in good faith.
[25] In
The
Messenger of the Magistrate's Court, Durban v Pillay
2
Van Den Heever JA, delivering the unanimous judgment of the court,
held that: “It is clear from the English cases to which
I have
referred that a juristic act may be “null and void” as
against one individual and yet be fully valid as against
another.
This limping operation is not unknown to the Roman Dutch Law.”
3
[26] Van Den
Heever JA went on to express caution where court officials act
sub
hasta
(“met
den sterken arm” for which “using strong arm tactics”
may be a reasonably good translation).
4
He said that proceedings in execution are inroads upon the rights
and property of the individual in which the messenger carries
out his
duties
sub hasta
and in so finding, he referred with approval to Maxwell,
Interpretation of
Statutes
,
5
7
th
Edition at page 316 where the learned author wrote:
where
powers are … granted with a direction that certain
regulations, formalities or conditions shall be complied with, it
seems neither unjust nor inconvenient to exact a rigorous observance
of them as essential to the acquisition of the … authority
conferred, and is therefore probable that such was the intention of
the legislature.
[27] Referring
specifically to the provisions of
section 70
of the
Magistrates’
Courts Act, Van
Den Heever JA held that:
These
provisions are in harmony with the dispositions of the common law
which regarded sales
sub hasta
as sacrosanct. The words are wide enough to cover not only
situations such as that which arose in
Conradie
v Jones
1917 OPD 112
, where property not belonging to the judgment debtor was
sold in execution, but every claim that the sale be rescinded.
6
[28] Following
upon this reasoning, the court confirmed the decision in the Durban
and Coast Local Division to set aside a sale
in execution. The
Appellate Division took the stance that under certain circumstances,
a sale may be set aside even though a transfer
or delivery took
place.
Section 70
was thus not to be seen or interpreted as an
absolute or unqualified defence for a purchaser who may have acted in
good faith at
a sale in execution.
[29] A few months
after delivering the judgment in the
Messenger of the Magistrate's Court, Durban v Pillay
case,
Van Den Heever JA said the following in
Sookdeyi
& Another v Sahadeo & Another
7
in
a unanimous judgment:
It
was a principle in the Netherlands that a perfected sale in execution
should after transfer or delivery of the subject matter
not be
lightly impugned
quoniam
fiscalis hastae fides facile convelli non debeat
.
(Groenewgen
de
Legib. Abrogate, ad C.
4.44.16;
ad
C.
8.44
(
sibi
45)
13; Neostad
Decisiones
,
Decis.75;
Voet
6.1.13
and, dealing with execution
in
rem
,
Bynkershoek
Observ.
Tumult
.
Cas 45;
Cf
Voet
42.1.31
verbis:
Et quamvis nec arbiter...
).
This
reluctance to rescind perfected sales
sub
hasta
has
been received in our case law (
Lange
and Others v Leisching and Others
,
1880 Foord 55
;
S.A.
Association v van Staden
,
S.C. 95 at 98;
Conradie
v Jones
1917
O.P.D. 112).
These
authorities indicate that in certain exceptional circumstances a sale
in execution may nevertheless be impugned. The rules
in regard to
this qualified inviolability of a sale in execution were in so far as
magistrates’ courts are concerned, codified
in
sec. 70.
It has
to be construed in harmony rather than conflict with the Common Law.
8
[30] The
Sookdeyi
v Sahadeo
case had
originally been adjudicated in the magistrate’s court, Durban.
The learned magistrate had refused to set aside a
sale in execution.
The matter went on appeal in the Natal Provincial Division before
Broome J (as he then was) and Carlisle AJP.
They found that the
magistrate had not considered, in terms of
section 70
of the
Magistrates’ Courts Act, whether
the purchaser had been in good
faith. Broome J and Carlisle AJP set aside the judgment and remitted
the case to the magistrate
to decide in the light of the evidence
that may be led on this aspect. Upon a retrial, the magistrate again
declined to set aside
the sale. The matter went on appeal again. This
time, the Natal Provincial Division dismissed the appeal. With leave
having been
granted, the appeal went further, to the Appellate
Division.
[31] The Appellate
Division dismissed the appeal. In
Menqa
and Another v Markom and Others
,
9
Cloete JA disagreed with these judgments of Van Den Heever JA. It
should be noted, however, that Cloete JA found unacceptable the
general principle that sales
sub
hasta
were
sacrosanct. He did not differ with the proposition of Van Den Heever
JA that there may be circumstances in which
section 70
should not be
interpreted in an unqualified manner. Indeed the contrary is true.
10
In this case of
Menqa
v Markom and Others
,
11
the majority of the Supreme Court of Appeal (“the SCA”)
considered it unnecessary to decide the correctness of the
aforementioned two judgments by Van den Heever JA.
12
[32] Q
uoniam
fiscalis hastae fides facile convelli non debeat
may be translated as “by reason of the fact that public
confidence in the institutional weapon of execution should not
lightly
be disturbed” (my translation). This expression, it
seems to me, summarizes the critical point: public confidence in the
process of execution is fundamentally important. In the circumstances
of this case, it seems clear that public confidence will be
better
served by an intervention in the sale of execution than by its
declining to do so. It is not simply the buyers who must
have
confidence in the process of sales in execution but all interested
parties, indeed the general public as a whole.
[33] In
Progress
Shippers (Pty) Ltd v Van Staden
13
the court granted
an application by a
bona
fide
purchaser of
immovable property at a sale in execution for the Registrar of Deeds
to pass clean transfer thereof, even though the
mortgage bond in
respect of the judgment debt had been irregularly registered. The
facts of that case indicate that the respondent
probably had himself
to blame.
[34] Nevertheless,
practical examples of where the court has refused to recognize a sale
in execution even where the purchaser acted
in good faith, and even
where there may have been formal compliance with the provisions of
section 70
of the
Magistrates’ Courts Act are
to be found in a
number of cases. The leading cases are
Joosub
v J I Case SA (Pty) Ltd
(now known as
Construction and Special Equipment Co (Pty) Ltd) and Others
,
14
Jones & Another
v Trust Bank
of
Africa Ltd and Others,
15
Jubb v Sheriff,
Magistrate’s Court, Inanda District and Others, Gottschalk v
Sheriff, Magistrate’s Court, Inanda District
and Others.
16
In my respectful
opinion, the
Joosub,
Jones
and the
Jubb
cases are distinguished by their mutually reinforcing
and comprehensive
reviews of the Roman-Dutch authorities and case law.
[35] After Cloete
JA had given a detailed analysis of the common law on the “
sub
hasta
principle”
in the
Menqa v Markom
case, he concluded
that the
Joosub
-
Jones
-
Jubb
triad reflected the correct approach even though he did not “wish
to be understood as agreeing with everything that was said
in the
judgments in those three cases”.
17
The majority judgment of the SCA in the
Menga
case refrained from expressing any views on the correctness of the
Joosub
-
Jones
-
Jubb
triad, although
Joosub
was not disagreed
with.
18
[36] In
Sowden
v ABSA Bank Ltd and Others
,
19
Heher J (as he then was), in this division expressly endorsed the
decision in the
Joosub
case. In
Kaleni v
Transkei Development Corporation and Others
,
20
Miller J followed suit.
[37] It cannot
escape unnoticed that in
Rossiter
and Another v Rand Natal Trust Co Ltd and Others
,
21
Milne JP (as he then was) set aside a sale in execution for want of
compliance with Rule 46(7) of the Uniform Rules of Court. Similarly,
in
Van Der Walt v
Kollektor (Edms) Bpk en Andere
,
22
De Villers AJ (as he then was) refused to give effect to a sale in
execution where the sheriff had failed to comply with the provisions
of Rule 45 of the High Court Rules.
[38] Although
Davis J
in Standard
Bank of South Africa Ltd v Prinsloo and Another (Prinsloo and
Another Intervening
)
23
seemed less than enthusiastic about the reasoning in the
Joosub
case and although, as noted above, the SCA considered it unnecessary
in
Menqa v Markoms
24
to decide the correctness of the judgments Van Den Heever JA in the
Messenger of the
Magistrate's Court, Durban v Pillay
and
Sookdeyi v Sahadeo
cases, it is
significant that both Van Heerden JA, delivering the majority
judgment and Cloete JA the minority judgment in
Menqa
and Another v Markom
respectively, agreed that to hold that the provisions of
section 70
of the
Magistrates’ Courts Act rendered
a sale in execution
unimpeachable “would defeat the whole purpose of the
Constitutional Court ruling in the
Jaftha
case”.
25
[39] Against this
background, I am confident that the correct decision in the case
before me is to set aside the sale in execution
of the vehicle in
question. Sales in execution of motor vehicles by the sheriff
without at least giving notice of the intention
to do so to both the
“title holder” and the “owner” as defined in
the
National Road Traffic Act will
undermine public confidence not
only in the system of sales in execution but also the system of
registration of vehicles provided
for in the
National Road Traffic
Act as
well as the whole system of credit financing of vehicles and
the regulatory framework of the NCA.
[40] It clearly
will impose no undue burden on sheriffs to require of them in this
and similar cases that they take appropriate
steps to ascertain who
the “title holder” and “owner” of the vehicle
in question may be and to notify them
of an intended sale in
execution. Where the “title holder” and the “owner”
are separate persons this may
only entitle the sheriff to sell the
owner’s the right, title and interest in the vehicle. Be that
as it may, I am sure that,
in a robust commercial hub like
Johannesburg, once all interested parties have made aware of the
conflicting interests at stake
in the attempted satisfaction of a
judgment debt, commercial sanity will, in most instances, prevail.
There will be deals to be
done.
[41] As this has
been a test case, it seems best in all the circumstances to make no
order as to costs. Rather than succeed in costs
in this matter, it
will be far more important to the applicant that sheriffs should,
from now on, be motivated to much more attentive
to the registered
interests of credit providers facilitating the sale of motor
vehicles. It is often not fully appreciated that
without the support
of honest, conscientious, diligent sheriffs who take a pride in their
work, the judgments of the courts in
civil matters are, at best, mere
etiolated ruminations. It is the sheriffs who give teeth to civil
judgments, making them in an
almost literal sense “
sub
hasta
”.
[42] The following
is the order of the court (granted on 10
th
March, 2011):
1. The attachment
of the vehicle 2007 model
Nissan
X Trail 2.5 Sel (R55)
,
with engine number QR25321754A and Chassis Number JN1TBN30Z0103197
(“the vehicle”) as well as the subsequent sale
in
execution thereof held on 15
th
September 2009 by the seventh respondent to the fifth respondent is
set aside;
2. The fifth
respondent is forthwith to return the vehicle to the seventh
respondent as against the return by the seventh respondent
of the
amount of all monies paid by the fifth respondent to the seventh
respondent, at or after the sale in execution;
3. In the event of
the fifth respondent refusing to return the vehicle to the seventh
respondent, the seventh respondent is authorised
to enter upon the
fifth respondent’s premises to attach the vehicle, and to take
possession of the vehicle against payment
of the amounts paid by the
fifth respondent at the sale in execution.
DATED
AT JOHANNESBURG THIS 22ND DAY OF MARCH, 2011
______________________
N.P.WILLIS
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant:
G.H.
Meyer
No
Appearance for the First to Sixth Respondents
Counsel
for Seventh Respondent:
F.A.
Saint
Attorneys
for Applicant: Jay Mothobi Incorporated
Attorneys
for Seventh Respondent: Gattoo Attorneys
Dates
of hearing: 28
th
October, 2010; 19
th
January, 2011, 10
th
March, 2011.
Date
of judgment: 22
nd
March, 2011
1
1963(1) SA 123 (A)
2
1952 (3) SA 678
(AD)
3
at
683A
4
At
683E. In
Menga
and Another v Markom and Another
2008
(2) SA 120
(SCA) at paragraph [41], the editors of the law
reports
added a footnote that
sub
hasta
meant
“in execution”. I agree but it should be remembered
that, more literally,
sub
hasta
means
“under a sword/spear/fearsome weapon of some kind”. In
South
African Broadcasting Corporation v Avusa Limited and Others
2010 (1) SA 280
(GSJ)at paragraph [14], I expressed my conviction
that Latin is a language of extraordinary nuance, precision and
depth. In my
view, the phrase
sub
hasta
in
this context illustrates the point fairly well.
5
7
th
Edition at page 316
6
At
683H
7
1952 (4) SA 568
(A)
8
At
571H-572A
9
2008
(2) SA 120
(SCA) at paragraphs [41] to [43]
10
See
paragraph [40].
11
2008
(2) SA 120
at paragraph [22], footnote 15
12
2008
(2) SA 120
at paragraph [22], footnote 15
13
1963
(1) SA 87
(T)
14
1992
(2) SA 665
(N)
15
1993
(4) SA 415
(C)
16
1999
(4) SA 496
(D &CLD)
17
2008
(2) SA 120
(SCA) at paragraph [44]
18
See
paragraphs [20] and [21].
19
1996
(3) SA 814
(W) at 821H-I
20
1997
(4) SA 789
(Tk SC) at 792E
21
1984
(1) SA 381
(N)
22
1989
(4) SA 690
(T)
23
2000 (3) SA 576
(C) at 588A-G
24
2008
(2) SA 120
at paragraph [22], footnote 15
25
Menqa
v Markom
(
supra
)
at paragraphs [21] and [48] respectively.
Jaftha
is
more fully described as the case of
Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005
(2) SA 140
(CC)
.