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[2011] ZAGPJHC 58
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Standard Bank of South Africa Ltd and Another v Margalit (25966/06) [2011] ZAGPJHC 58 (21 May 2011)
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REPORTABLE
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH
AFRICA)
APPEAL CASE NO:
A3080/2010
CASE NO: 25966/06
DATE:21/05/2011
In the matter between:
STANDARD
BANK OF SOUTH AFRICA LTD
..........................
First
Appellant
…
..................................................................................
(First
Defendant
a quo
)
NELSON
BORMAN & PARTNERS INC
...............................
Second
Appellant
…
.............................................................................
(Second
Defendant
a quo
)
and
MEIR
MARGALIT
..........................................................................
Respondent
JUDGMENT
INTRODUCTION
This is an appeal from a
judgment of the Magistrate’s Court dated 23 April 2010 (“the
judgment”). The Plaintiff
in the Court
a quo
, and the
Respondent in this Court, Meir Margalit (“Margalit” or
“the Respondent”), obtained a judgment
against the
defendants in that Court (collectively “the Appellants”)
for payment of damages in the sum of R42 713.42.
The First Appellant and
the First Defendant in the Court
a quo
is Standard Bank of
South Africa Ltd (“the Bank”). The Second Appellant and
Second Defendant in the Court
a quo
is Nelson Borman &
Partners Inc (“Nelson Borman”), a firm of conveyancing
attorneys.
The Respondent’s
claim arises out of the sale by the Respondent, and the subsequent
transfer to the purchaser, of a property
previously owned by the
Respondent, located in Morningside, Sandton (“the property”)
for a purchase price of R3 million.
The Respondent
experienced certain delays in the transfer, which he blames on the
alleged negligence of the Bank and Nelson Borman
in failing to
cancel the Bank’s bonds over the property timeously. The
Respondent alleges that, as a result of the negligence
of the
Appellants, and the consequent delays, he suffered damages in the
amount of R42 713.42, being the interest that would
have
accrued to him on the proceeds of the purchase price had the delays
in transfer not occurred.
The Bank was the
mortgagee in respect of two mortgages registered over the property
by Margalit. Nelson Borman were the conveyancing
attorneys appointed
by the Bank to attend to the cancellation of the Bank’s
mortgage(s) over the property.
The Respondent’s
claim against the Bank is contractual. His claim against Nelson
Borman is delictual.
This appeal centres
around the issue of liability of the Appellants. There is no dispute
concerning quantum.
SUMMARY OF THE FACTS
The Respondent acquired
ownership of the property by deed of transfer dated 10 July
1987. The events that gave rise to the
present claim occurred some
30 years later during the period 2007 – 2008.
A.
The pleadings
It is common cause on
the pleadings that the Plaintiff sold the property to a third party
for a price of R3 million on 24 May
2007. In terms of the
sale agreement, the Plaintiff was to be paid the proceeds of the
sale on the date of registration of transfer.
The net proceeds,
after payment of commission, that would accrue to the Respondent
would be the sum of R2 900 000.
The following allegation
in the Respondent’s particulars of claim has been admitted by
the Appellants:
“
6. It was an
express, alternatively an implied alternatively tacit term of the
said mortgage bond [registered over the property
in favour of the
Bank] that the plaintiff would be entitled to the cancellation
thereof against the guarantee of payment of the
amount secured in
terms of such mortgage bond, and such cancellation would be affected
by the 1st defendant, alternatively its
agent, in a professional and
businesslike manner.”
I note that, although
there were in fact two mortgage bonds over the property, the
allegation in this paragraph refers to only
one mortgage bond. For
purposes of the judgment I assume in favour of the Respondent that
the Respondent’s allegations
concerning the terms of the
mortgage embrace both mortgage bonds and that it is common cause
that both mortgage bonds had the
same terms and conditions.
The underlying loan
agreement(s) between the Bank and the Respondent was not placed
before the Court. Nor were any of the mortgage
bonds. In the result,
I am compelled to decide this appeal based upon the admitted
allegation contained in paragraph 6 of the
particulars of claim.
The particulars of claim
then contain the following allegations:
“
10. At all times
material to (sic) the 2
nd
defendant owed the plaintiff a duty of care to carry out its mandate
to procure the cancellation of the said mortgage bond
1
simultaneously with the transfer of the property to the third party
in a professional and businesslike manner.
11. In breach of the
mortgage agreement
2
between the Plaintiff and the 1
st
defendant, the 1
st
defendant failed to procure the cancellation of the said mortgage
bond in a professional and businesslike manner, as a result
whereof
transfer of the property and the simultaneous cancellation of the
said mortgage bond was delayed until 16 July 2008.
12. In breach of its
duty of care to the plaintiff, the 2
nd
defendant failed
to carry out its mandate to procure the cancellation of the said
mortgage bond in a professional and businesslike
manner, as a result
whereof the transfer and simultaneous cancellation of the said
mortgage bond was delayed until 16 July 2008.”
The particulars of claim
are not a model of clarity. Among other things, they do not set out:
the factual basis upon
which the legal duty not to be negligent is sought to be imposed
upon Nelson Borman; or
the precise respects in
which the Appellants were allegedly negligent.
B.
The events
leading up to the transfer
The conveyancing
attorneys appointed by the seller to take care of the transfer, were
Warrender Attorneys (“Warrender”).
Warrender also
represented the Respondent in the Court
a quo
and in this
appeal. As noted above, Nelson Borman was appointed by the Bank to
attend to the cancellation of the Bank’s
bond(s).
The purchaser obtained
financing from Absa Bank Ltd (“Absa”). Absa appointed a
third set of attorneys to attend to
the registration of the bond in
its favour. In the result, there were three sets of conveyancing
attorneys involved in the transaction.
Although the sale
agreement was concluded on 24 May 2007, there was a significant
delay as a result of the City of Johannesburg’s
failure to
issue a rates clearance certificate in accordance with Section 118
of the Local Government Municipal Systems
Act 32 of 2000 (“the
Municipal Systems Act”). In terms of the Municipal Systems
Act, transfer cannot occur until
a rates clearance certificate has
been issued by the City of Johannesburg. Apparently, as a
consequence of a dispute that arose
between the Respondent and the
City concerning the correct clearance figures, no clearance
certificate was available until 30 April
2008. It is therefore
common cause that the transfer could not proceed until 13 May
2008.
The Respondent has also
separately instituted action against the City of Johannesburg for
damages arising out of the delay in
issuing the clearance
certificate.
At the time that the
sale agreement was concluded, the various conveyancing attorneys had
not anticipated such a long delay in
issuing the rates clearance
certificate. Consequently, they took a number of the preliminary
steps required for transfer during
the year 2007.
The unexpected delay in
obtaining the issue of a rates clearance certificate had a knock-on
effect on other steps that had to
be taken to bring about the
transfer. It is possible that, if the rates clearance certificate
had been issued sooner, some of
the subsequent delays might not have
occurred.
On 11 June 2007,
Warrender addressed a letter to Standard Bank referring only to a
single bond account number. In that letter,
Warrender stated:
“
We have been
instructed to attend to the registration of the above transfer and
understand the properties are presently bonded
to yourselves.
Please advise us of your
guarantee requirements and also the name of the attorneys who will
be attending to the cancellation on
your behalf.”
Warrender’s letter
does not allude to the fact that there are
two bonds
. On a
plain reading of the letter, the Bank would have been entitled to
assume that there was only one bond registered over the
property and
that cancellation figures were being requested only for one bond.
The Respondent testified
that he himself had been unaware that he had taken out a second bond
over the property. It was also apparent
from the evidence that
Warrender was also unaware that there were two bonds until mid-2008.
Margalit blames the
Appellants for not realising much sooner that there were in fact two
bonds over the property. It is difficult
to see how he can blame the
Bank for its ignorance, given his own unexplained ignorance of his
own affairs.
Warrender wrote two
further letters to the Bank dated 26 June 2007 and 30 July
2007 requesting cancellation figures.
The Bank then appointed
Nelson Borman to attend to the cancellation of the bond. Nelson
Borman provided cancellation figures on
14 September 2007.
We do not have to decide
whether this initial delay in providing cancellation figures was
culpable because no transfer could have
occurred until the rates
clearance certificate was issued.
The letter of
14 September 2007 from Nelson Borman indicated that, in order
to cancel the bond, the Bank would require a
guarantee of R1 201.40.
It was common cause that this is an extremely low cancellation
figure.
The correspondence from
Nelson Borman and the Bank relating to the cancellation of the bond
indicated clearly that the bond cancellation
figure of R1 201.40
was valid for a period of only three months. Accordingly, if the
transfer did not occur within 90 days
after the cancellation figure
had been furnished, a new guarantee would be required.
It was also common cause
that it is normal conveyancing practice for the Bank’s
cancellation figures to be valid for a limited
period of three
months. This is because interest may accrue on the outstanding bond.
In addition, a mortgagor who anticipates
transfer, may stop paying
instalments on the bond until the transfer occurs.
On 14 July 2007, a
guarantee was issued by Nedbank, at the instance of the Respondent,
in favour of the Bank, in an amount
of R1 201.40 (“the
first guarantee”). It is not clear to me how that guarantee
could have been issued on 14 July
2007 in view of the fact that
cancellation figures were not furnished until 14 September
2007.
By the time that the
rates clearance certificate had been issued, making it possible for
the parties to effect transfer, the three
month period stipulated in
Nelson Borman’s letter of 14 September 2007 had expired.
Further cancellation figures were
requested. These figures totalled
R4 713.38. This necessitated the issue of a further guarantee
(“the second guarantee”)
in an amount of R4 713.38
before transfer could occur.
The second guarantee was
not issued until
16 July 2008
.
Upon issue of the rates
clearance certificate on 30 April 2008, the Plaintiff lodged
the transfer documents with the Registrar
of Deeds in Pretoria on
13 May 2008.
The transfer documents
were rejected by the Registrar of Deeds three times before transfer
finally took place on 16 July
2008. Each rejection took place
for a different reason.
The testimony of the
parties’ experts was that, when the Registrar of Deeds finds a
particular problem with the lodged documents,
the Registrar will
issue a rejection for that reason. However, once the Registrar finds
a problem, the Registrar rarely examines
the documents to ensure
that they are otherwise in order. This means papers that are lodged
with the Registrar may be rejected
several times before they are
finally in order.
This practice by the
Registrar is undesirable. One can see how buyers and sellers
involved in a transfer feel that they are being
subjected to a game
of cat and mouse. Repeated delays can result in clearance
certificates and mortgages becoming obsolete and
can cause further
significant additional delays. These delays can have serious
negative financial implications for homeowners
and commercial
property owners alike.
The Registrar is a
public servant. It is preferable that he examine the documents
lodged for defects and catalogue all of the
defects at once so that
the conveyancing attorneys will know exactly what has to be done in
order to facilitate transfer.
In the present case, the
Registrar’s three rejections resulted in delays totalling 48
days. Although the parties do not
suggest that the Registrar was not
entitled to reject the lodged documents on the three occasions that
he did so, had the Registrar
conducted a full inspection of all of
the documents at the outset, the delays would have been
significantly reduced.
The Respondent blames
each rejection upon the failure of the Bank and Nelson Borman to
attend to the various steps necessary to
affect cancellation of the
bond timeously and with due diligence. Among other things, delays
resulted from the following:
The Bank had lost the
original title deed and mortgages. Apparently this is not uncommon,
given the protracted period of many
mortgages. In this case, the
mortgages were 30 years old.
As a result of the fact
that the bonds were lost, the Bank was obliged to execute and
submit to the Registrar of Deeds a lost
document affidavit.
The lost document
affidavit was rejected on at least one occasion because it was
deposed to by the Bank’s attorney, Nelson
Borman, and not an
officer of the Bank itself.
The Deeds Office in
Pretoria had different requirements for lost document affidavits
from the Deeds Office in Johannesburg.
Johannesburg accepted an
affidavit from the mortgagee’s attorney, while Pretoria did
not.
3
There is some
uncertainty about whether the practice in Pretoria of requiring
that the lost document affidavit be executed by
a representative of
the Bank (and not an attorney) existed in 2007 when the lost
document affidavit was initially lodged.
There was also a
rejection resulting from the fact that the parties were unaware
that there were two bonds which required two
lost document
affidavits.
It took 14 days for a
representative of the Bank to execute the lost document affidavit.
The above is simply a
summary of some of the difficulties that arose. In the view that we
take of this matter, it is not necessary
to analyse in detail every
single delay and the cause of each delay.
THE CONSEQUENCES OF
THE RESPONDENT’S FAILURE TO OBTAIN THE SECOND GUARANTEE BEFORE
14 JULY 2008
It is clear from
paragraph 6 of the particulars of claim that it is common cause that
the obligation to cancel the bond is reciprocal
to, and dependent
upon, the mortgagor providing a simultaneous guarantee for payment
of the outstanding amount secured by the
bond. In the absence of
such a guarantee, the Respondent had no right to cancellation of the
bond.
4
It is common cause that,
by May 2008
5
,
the Respondent was no longer entitled to rely upon the first
guarantee. It was therefore necessary for the Respondent to put
up a
second guarantee based upon current figures in order to obtain
cancellation of the bond.
In fact, the second
guarantee was not available until 14 July 2008. That was the
date upon which registration occurred.
It follows that, until
14 July 2008, the Respondent had no right to cancellation of
the bond. On 14 July 2008, when
he acquired a right to
cancellation of the bond, cancellation occurred
simul ac semel
with the furnishing of the guarantee.
Until such time as there
was a valid and current guarantee in force, the Bank had no
obligation to effect cancellation whether
in a proper and
businesslike manner, or at all. The Bank is entitled to avail itself
of the
exceptio non adimpleti contractus
until 14 July
2008.
The Respondent argued
that the provision of a guarantee was not a requirement of the
Registrar for cancellation of the bonds.
The Registrar’s
requirement is in this respect irrelevant. The Respondent’s
claim is a contractual claim and unless
he had a contractual right
to cancellation of the bond, he cannot complain about any delays
that occurred prior to the date upon
which his contractual right
matured.
As the Bank had no
contractual obligation to cancel the bond prior to 14 July
2008, the Respondent’s claim against
the Bank should have
failed on that ground alone.
Moreover, on the face of
the particulars of claim, Nelson Borman, who allegedly
“acted
as the agent”
of the Bank, could not, on any version, have
been expected to cancel the bond before his principal’s
contractual obligation
to do so had matured. It follows that,
because the second guarantee was not provided until 14 July
2008, there is also no
liability on Nelson Borman.
FAILURE TO
DEMONSTRATE THAT THE BANK ACTED NEGLIGENTLY
Even if the late
furnishing of the second guarantee were not dispositive, the
Plaintiff’s claim against the Bank must fail
for a further
reason. The Plaintiff proffered no evidence as to how a reasonable
bank should conduct itself in such circumstances.
The expert evidence
tendered by the Respondent concerns the obligations of
conveyancers
.
The Respondent made no attempt to demonstrate how a reasonable bank
should have conducted itself in the circumstances.
In
Durr v ABSA
Bank Ltd & Another
1997 (3) SA 448
(SCA) 460F
,
Schutz JA held:
“
Imperitia
culpae adnumerator
... – lack of skill is regarded as
culpable. That much is accepted by the respondents. But how much
skill, they say. We
have shown all the skill that an ‘ordinary’
or ‘average’ broker, or a bank employing such a one,
needs
show. What more can be asked of us?
The questions arise in
this case. (1) In general, what is the level of skill and what is
required? (2) Is the standard required
in judging that level that of
the ordinary or average broker at large, or is it that of the
regional manager of the broking division
of a bank professing
investment skills and offering expert investment advice?
The answer to the first
question is found in the judgment of Innes CJ in
Van Wyk v Lewis
1924 AD 438
at 444 with reference, as it happens, to medical
practitioners:
‘“
... [A]
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill,
but he is bound to employ reasonable skill and care”. And in
deciding what is reasonable the Court will have regard
to the
general level of skill and diligence possessed and exercised at the
time by
the members of the branch of the profession
to which the practitioner belongs. The evidence of qualified
surgeons or physicians is of the greatest assistance in estimating
that level.’
‘
But the decision
of what is reasonable under the circumstances is for the Court; it
will pay high regard to the views of the profession,
but it is not
bound to adopt them’ ...
In dealing with the
question
whose
standard is the relevant one, I
have dealt with the opinions of the experts and some of the facts at
some length. This is because
in real life negligence is not a mere
legal abstraction, but must be related to particular facts.
”
[emphasis added].
Accordingly, while it is
ultimately the function of the Court to determine the appropriate
standard of care, that must be decided
based upon evidence upon the
manner in which a reasonable bank would conduct itself in the
circumstances.
6
No such evidence was forthcoming.
A large part of the
Respondent’s claim is based upon the notion that it was
negligent of the Bank not to know that there
were two bonds in
existence. In light of the fact that the Respondent himself was not
aware that he had taken out two bonds on
the property it is
difficult to charge the Bank with negligence in the absence of
evidence that the Bank should have known better.
It is also alleged that
it was negligent of the Bank to take 14 days to execute the lost
bond affidavit. Once again, in the absence
of evidence as to what
would be reasonable for a Bank in those circumstances, it is hard to
conclude the Bank was negligent.
The claim against the
Bank must therefore also fail because of the Respondent’s
failure to adduce evidence as to the appropriate
standard of care
required of a commercial bank in these circumstances.
THE FAILURE TO
PROVIDE EVIDENCE IN SUPPORT OF THE CONTENTION THAT THE BANK’S
BOND CANCELLATION ATTORNEY OWED A DUTY OF CARE
TO THE RESPONDENT
There was no contractual
relationship between the Respondent and Nelson Borman. The
Appellant’s contractual relationship
was with the Bank only.
For this reason, the Respondent’s claim against Nelson Borman
is delictual.
In
Trustees, Two
Oceans Aquarium Trust v Kantey & Templar (Pty) Limited
2006 (3) SA 138
(SCA)
, at
143
I
,
Brandt JA held:
“
[10] The exception
raises the issue of wrongfulness which is one of the essential
elements of the
Aquilian
action. … Negligence giving
rise to damages is not, however, actionable
per se
. It is
only actionable if the law recognises it as wrongful. Negligent
conduct manifesting itself in the form of a positive act
causing
physical damage to the property or person of another is
prima
facie
wrongful. In those cases, wrongfulness is therefore seldom
contentious. Where the element of wrongfulness becomes less
straightforward
is with reference to liability for negligent
omissions and for negligently causing pure economic loss. … In
these instances,
it is said, wrongfulness depends on the existence of
a legal duty not to act negligently. The imposition of such a legal
duty is
a matter for judicial determination involving criteria of
public or legal policy consistent with constitutional norms. …
[11] It is sometimes said
that the criterion for the determination of wrongfulness is ‘a
general criterion of reasonableness’,
i.e. whether it would be
reasonable to impose a legal duty on the defendant. … Where
the terminology is employed, however,
it is to be borne in mind that
what is meant by reasonable in the context of wrongfulness is
something different from the reasonableness
of the conduct itself
which is an element of negligence. It concerns the reasonableness of
imposing liability on the defendant.
… Likewise, the ‘legal
duty’ referred to in the context must not be confused with the
‘duty of care’
in English law which straddles both
elements of wrongfulness and negligence. In fact, with hindsight,
even the reference to ‘a
legal duty’ in the context of
wrongfulness was somewhat unfortunate. …
[12]
When we see that
a particular omission or conduct causing pure economic loss is
‘wrongful’, we mean that public or legal
policy
considerations require that such conduct, if negligent, is
actionable; that legal liability for the resultant damages should
follow. Conversely, when we say that negligent conduct causing pure
economic loss or consisting of an omission is not wrongful,
we intend
to convey that public or legal policy considerations determine that
there should be no liability; that the potential
defendant should not
be subjected to a claim for damages, his or her negligence
notwithstanding. In such event, the question of
fault does not even
arise. The defendant enjoys immunity against liability for such
conduct, whether negligent or not
... Perhaps it would have been
better, in the context of wrongfulness, to have referred to a ‘legal
duty not to be negligent’,
thereby clarifying that the question
being asked is whether in the particular circumstances negligent
conduct is actionable, instead
of just a ‘legal duty’. I
say this in passing and without any intention to change settled
terminology. As long as we
know what we are talking about.
When a
court is requested in the present context to accept the existence of
a ‘legal duty’, in the absence of any precedent,
it is in
reality asked to extend delictual liability to a situation when none
existed before. The crucial question in that event
is whether there
are any considerations of public or legal policy which require that
extension.
And as pointed out in
Van Duivenboden ...
and
endorsed in
Telematrix
... in answering that question
‘
what is called for
is not an intuitive reaction to a collection of arbitrary factors but
rather a balancing against one another
of identifiable norms.’”
[emphasis added].
Where the Court is asked
to recognise a duty not to be negligent in circumstances that have
not previously been considered, it
is usually necessary for the
plaintiff to adduce evidence that would support the need to extend
delictual liability to the defendant
in question.
7
Accordingly, the claim
cannot succeed in the absence of evidence justifying the conclusion
that Nelson Borman owed a legal duty
to the Respondent to act with
due care in cancelling the bonds. To put it another way, evidence is
required that Nelson Borman
acted unlawfully
vis-a-vis
the
Respondent in allegedly failing to take due care with regard to the
cancellation of the bond. No such evidence was adduced.
There is no indication
of a special relationship (or indeed any relationship at all)
between the Respondent and Nelson Borman
or that there was any
special reliance by the Respondent on the expertise of Nelson
Borman.
8
The only evidence before us relevant to the duty of care militates
against the imposition of one:
It is common cause
between the parties that the Respondent had a contractual claim
against the Bank for damages in the event
of the Bank failing to
act with reasonable care in cancelling the bond. In those
circumstances there is no reason to impose
additional liability
upon the Bank’s agent, the bond cancellation attorneys. While
the existence of a contractual remedy
is not always a bar to the
assertion of a valid delictual claim, it is an important factor to
take into account in determining
whether it is necessary to extend
a delictual remedy to the aggrieved plaintiff.
9
The seller’s
conveyancer, Warrender, was engaged to represent the Respondent’s
interests in the transaction. As
a seller has an attorney to take
care of his interests in a typical conveyancing transaction, there
does not seem to be any
reason to afford the seller an additional
claim against the conveyancer engaged by the mortgagor to cancel
the bond.
I emphasise that in
concluding that there is no evidence to support the extension of a
delictual remedy against the bond cancellation
attorneys in this
matter, I am not making a general finding that the mortgagee’s
conveyancer never has a duty to the seller
in a conveyancing
transaction not to be negligent. I am simply finding that, in this
instance, there is no evidence to support
the recognition of such a
duty.
CONCLUSION
In the result, I
conclude that the Respondent’s claim should have failed. As
certain of my findings relate to the insufficiency
of evidence, I
consider that absolution from the instance would be the appropriate
outcome.
In the result, I make
the following order:
The appeal is upheld
with costs.
The judgment of the
learned magistrate dated 23 April 2010 is hereby set aside and I
substitute the following order therefor:
“
1. The Defendants
are granted absolution from the instance.
2. The Plaintiff is
ordered to pay the Defendants’ costs of suit.”
______________________________
P.N. LEVENBERG, AJ
Acting Judge of the High
Court
Mbha J:
I agree. It is so
ordered.
_________________________
MBHA, J
Judge of the High Court
Counsel for the
Appellants: JJ Roestorf
Attorney for the
Appellants: Borman Duma Zitha Attorneys
Counsel for the
Respondent:BD Hitchings
Attorneys for the
Respondent: Warrender Attorneys
Judgment Date: 21
st
May 2011
1
Once again, the Respondent refers only to a single mortgage bond. It
is significant that, even after the events that gave rise
to this
action, the Plaintiff (who was represented in these proceedings by
his own conveyancing attorneys) continues to refer
to a single
mortgage bond.
2
Once again, there is a reference only to a single agreement and a
single mortgage bond.
3
Nelson Borman maintains that, because it is a Johannesburg based
attorneys firm, it was unaware of the practice in Pretoria.
Accordingly, it maintains that it was not culpable in failing to
submit an affidavit deposed to by an officer of the Bank from
the
outset. In the view that we take of this matter, nothing turns on
this.
4
Man Truck & Bus SA (Pty) Ltd v Dorbyl (Pty) Ltd
2004 (5) SA 226
(SCA) para [12]
.
5
The Respondent offers no explanation for his failure (and that of
his conveyancer) to request revised settlement figures and
to
provide the second guarantee prior to lodgement in May 2008.
6
See
Columbus Joint Venture v Absa Bank Ltd
2002 (1)
SA 90
(SCA) para [8]
.
7
Minister of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) 318H-J
;
Axiam Holdings Limited v Deloitte & Touche
2006 (1) SA 237
(SCA) para [32];
Kwamashu Bakery
Limited v Standard Bank of South Africa Limited
1995 (1)
SA 377
(D & CLD) 390 H-I
.
8
Bayer South Africa (Pty) Ltd v Frost
1991 (4) SA
559A
– 575D
;
Mukheiber v Raath and Another
1999 (3) SA 1065
(SCA) 1076
;
Standard Chartered Bank of
Canada v NedPerm Bank Ltd
1994 (3) SA 747
(A) 769I –
771A
.
9
Holtzhausen v ABSA Bank Ltd
2008 (5) SA 630
(SCA)
633 para [7]
;
Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A)
496
.