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[2011] ZAGPJHC 247
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N v N (21694/2010) [2011] ZAGPJHC 247 (9 December 2011)
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Certain
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IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 21694/2010
DATE:
09 DECEMBER 2011
In
the matter between
[J………]
[N……..]
......................................................................................................................
Plaintiff
And
[F……]
[V……]
[N……]
..........................................................................................................
Defendant
JUDGMENT
EF
Dippenaar AJ
[1]
This is an action in which the Plaintiff
sues her former spouse, the Defendant, for payment of 50% of the
value of the former matrimonial
home “the immovable property”
in an amount of R400 000.00, together with interest and costs.
[2]
At the inception of the hearing, the
Plaintiff indicated that she was persisting only with a claim for 50%
of the proceeds of the
immovable property, which had subsequently
been sold to a third party.
[3]
This claim arises pursuant to a Divorce
Order granted by the Central Divorce Court on 10 October 2001, in
terms of which the parties’
marriage was dissolved and it was
ordered that the joint estate be divided. It is common cause that the
parties had previously
been married in community of property and the
aforesaid Divorce Order has never been altered.
COMMON
CAUSE FACTS
[4]
It was common cause between the parties
that they had previously been married in community of property and
that the marriage was
terminated by Order of the Central Divorce
Court on 7 October 2001. The Order contained a provision that the
parties’ joint
estate be divided.
[5]
On or about 15 July 2002, an application
was launched by the Defendant for the appointment of a receiver and
liquidator to divide
the joint estate. At Court, negotiations
commenced between the parties regarding the division of the joint
estate.
[6]
The parties’ evidence diverges as to
the nature and outcome of these negotiations. The Plaintiff contends
that no agreement
was reached regarding the immovable property
although the parties had agreed on the division of their movable
assets; whereas the
Defendant contends that the negotiations
ultimately resulted in a written settlement agreement being concluded
which forms the
subject matter of the trial.
[7]
Pursuant to the signature of the settlement
agreements, the Defendant instructed conveyancers to transfer the
entire property into
his name during or about March 2007.
[8]
It is common cause that the Defendant
thereafter sold the immovable property for an amount of R550 000.00.
Plaintiff’s counsel
at the commencement of the trial informed
me that the Plaintiff was only claiming 50% of such proceeds, being
an amount of R275
000.00.
[9]
The relevant clause in the written
settlement agreement provides as follows:
“
1.
DISSOLUTION OF THE ESTATE
1.1
That
F……
N………
is to
take ownership and possession of the matrimonial home described as
Stand No.l 7….. P…... C…….
Street, C………,
S……., hereinafter referred to as “the matrimonial
home”.
1.2
F……….. N……..
will attend, arrange with the
bond holder and for a change of the bond into his name.
1.3
F……… N……..
will assume all the
responsibilities, obligations and benefits of ownership of the house.
1.4
All house hold contents up to and
including cutlery, bedding, furnisher (sic) and all the contents of
the house will be sole property
of
J………
N…….
and the said
items will be removed from the matrimonial home.
1.5
Further to 1.1. and 1.2 supra
J…….
N……
will vacate
the matrimonial home.”
THE
PLAINTIFF’S EVIDENCE
[10]
Three witnesses testified on behalf of the
Plaintiff, being: the Plaintiff; a representative from the offices of
the Registrar of
Deeds; and a handwriting expert, Mr Landman.
[11]
The attorney who had represented the
Plaintiff at the time, Mr L F Mnguni, has in the interim passed away
and could not be called
as a witness.
[12]
The Plaintiff testified that she has been
employed by Edgars for the past twelve years and was not unemployed
for certain periods
as testified by the Defendant in
cross-examination. It was also never put to the Plaintiff in cross-
examination that she was unemployed
for certain periods of time.
[13]
During July 2002 at the hearing of the
receivership application, she had agreed with the Defendant to vacate
the former matrimonial
home as she could not afford to pay the bond.
The Plaintiff was emphatic that she did not verbally or otherwise
agree to transfer
her share in the immovable property to the
Defendant.
[14]
The Plaintiff testified that the parties
agreed to divide their movable property, which was divided equally.
She denied that she
took all the movable property and testified that
the Defendant retained a music centre, a portion of the cutlery, a
lawnmower and
a toolbox. The Defendant denied receiving most of these
items.
[15]
No improvements were effected to the
property whilst the Plaintiff lived there. She was unaware of any
improvements done after she
vacated the property.
[16]
The Plaintiff had subsequently sought
assistance from various different legal representatives to obtain her
share of the immovable
property. Her previous attorneys declined to
assist her after being furnished with the so called settlement
agreement. Her current
attorney of record, Mr Dudula, however
enlisted the assistance of a handwriting expert who after
investigation concluded that the
Plaintiff’s signature had
indeed been forged on the settlement agreement, resulting in the
present action being instituted
during 2010.
[17]
The Defendant had in his cross-examination
of the Plaintiff relied on a letter dated 12 August 2002 emanating
from the Plaintiff’s
erstwhile attorney, Mr Mnguni, contending
that the letter confirmed the settlement agreement contended for by
the Defendant.
[18]
The relevant portion of the letter provides
the following:
“
We
advise that we have confirmed the following with your ex husband’s
attorney:
1
that you will vacate the common home on the date to be agreed upon
by all
the parties.
2
that all movable goods in possession of your ex husband which formed
part
of the joint estate will be returned to you;
3
that this agreement will and (sic) binding upon all parties.”
[19]
If this letter is read in context, it does
not in its terms confirm that the Defendant would obtain Plaintiff’s
half share
in the immovable property or that the Plaintiff agreed to
thus transfer her share in the property to the Defendant. The letter
is entirely silent on this point and does not support a finding on
the probabilities that the issues surrounding a division of the
immovable property had been resolved between the parties. The letter
in its terms, does accordingly not support the version of
the
Defendant, but rather supports the version of the Plaintiff.
[20]
The Plaintiff testified that during the
period 2002 to 2003 when the settlement agreement was allegedly
signed, she used the name
J…. N…… exclusively.
Thereafter she reverted to her maiden name and used the surname
Tshabalala when she obtained
a new identity document in that name.
When utilising the name J…… N…….., the
Plaintiff generally used
capital letters. When on the odd occasion
she used small letters, she still utilised a capital "J"
and "N".
[21]
The Plaintiff was emphatic throughout
cross-examination that she did not conclude any agreement regarding
the division of the immovable
property with the Defendant and that
she did not sign the settlement agreement.
[22]
At the time the correspondence between
Messrs Mnguni and Nkosi took place, the Plaintiff did not see the
letter or the settlement
agreement. She saw the letter for the first
time during 2006, when one of her subsequent attorneys showed it to
her. She could
not explain the contents of the letter, nor the
impression it created.
[23]
The Plaintiff conceded under
cross-examination that she has different signatures in the name of
N…. and T……
and that she sometimes uses capital
letters and on other occasions small letters. She explained that she
had subsequent to the
divorce reverted to her maiden name and
obtained an identity document in that name.
[24]
The Plaintiff testified that when the
arrangements were made for her to vacate the immovable property, it
was agreed that the Defendant
would put up the house for sale after
he had paid off the outstanding bond. She had not been notified
of any subsequent sale
of the property by the Defendant, but found
out about it by chance years later. Since that time she has been
attempting to prove
her rightful share.
[25]
The evidence of Mr Landman was that he was
an expert in the field of document examination with some 35 years
experience. He noted
17 points of divergence between the Plaintiff’s
normal N……. signature and the signature which appears
on the
settlement agreement. His ultimate conclusion was that the
settlement agreement allegedly signed by the Plaintiff on 17 October
2002 contained a simulated forgery and was not signed by the
Plaintiff.
[26]
Mr Landman made no concessions throughout
his evidence that he may have made a mistake or that the disputed
signature could be that
of the Plaintiff.
[27]
In the expert summary and report filed on
his behalf, Mr Landman had invited a second opinion from a competent
and credible expert.
The Defendant did not however enlist the
services of such an expert and no expert was called to testify on his
behalf.
[28]
The representative from the offices of the
Registrar of Deeds, Mr Mukhakhululi’s evidence was that the
property had originally
been purchased for R76 000.00. It had been
represented in the documentation submitted to those offices during
March 2007 that the
immovable property had been awarded to the
Defendant pursuant to a Court Order of the Central Divorce Court.
This was not true.
One of the documents which had been submitted to
the offices of the Registrar of Deeds was the settlement agreement
here in dispute.
[29]
Absent the documentation and
representations made to the Registrar of Deeds, the Defendant would
not have been able to have the
property transferred into his name
only and would not have been able to sell the property to a third
party without the co-operation
of the Plaintiff.
[30]
The Defendant testified, as did his
attorney, Mr Nkosi, who had represented him throughout the divorce
proceedings and in the current
matter.
[31]
Mr Nkosi testified that at the hearing date
of the receivership application during July
2002 and at the
Central Divorce Court he and Mr Mnguni, in
consultation with the parties, their respective clients, orally
agreed that the parties'
joint estate would be divided on the basis
that the Plaintiff retain all the movable assets and the Defendant
retain the immovable
property as their respective exclusive property.
Mr Nkosi further testified that the attorneys agreed that Mr Nkosi
would prepare
a written settlement agreement which would be forwarded
to Mr Mnguni for signature.
[32]
Mr Nkosi duly drafted the settlement
agreement in the terms agreed and sent it to Plaintiff’s
attorney for amendments, if
any. He testified further that Mr Mnguni
contacted him telephonically and advised that the agreement was in
order.
[33]
The Defendant signed the settlement
agreement at Mr Nkosi’s offices whereafter Mr Nkosi personally
took it to Mr Mnguni’s
offices for signature by the Plaintiff.
He left the agreement and a covering letter dated 3 October 2002.
[34]
Mr Nkosi later collected a signed version
of the settlement agreement together with a covering letter, duly
signed by the Plaintiff.
The letter is dated 29 January 2003.
Mr Nkosi was never advised that the signature was not that of the
Plaintiff.
[35]
The settlement agreement was never made an
Order of Court as he did not think it was necessary to do so as the
agreement was binding
between the parties. He did not consider
whether the terms of the settlement agreement were at variance with
the Court Order.
[36]
Mr Nkosi had not witnessed the settlement
agreement being signed by the Plaintiff, but believed that it
belonged to the Plaintiff.
[37]
This belief that the settlement agreement
was signed by the Plaintiff, together with the letter of Mr Mnguni to
the Plaintiff referred
to above, is the high-water mark of the
Defendant’s case and there was no direct evidence led that the
Plaintiff did indeed
sign the settlement agreement.
[38]
Mr Nkosi testified that he had not been
involved in the drafting of the documents which were sent to the
Registrar of Deeds which
enabled the Plaintiff’s half share in
the immovable property to be transferred to the Defendant during
March 2007 and could
not comment on this issue. He had represented
the Defendant from 2002.
[39]
According to Mr Nkosi, the settlement
agreement had been signed by the Defendant on 17 October 2002.
According to his further
evidence he had thereafter taken the
signed settlement agreement to Mr Mnguni’s offices accompanied
by a covering letter.
The said accompanying letter is however dated 3
October 2002. On Mr Nkosi’s version, he received the settlement
agreement,
now signed by the Plaintiff back, accompanied by a letter
from Mr Mnguni some time thereafter. This letter is dated
29 January 2003.
[40]
Mr Nkosi had drafted and signed the
Defendant’s Plea in which it is alleged that the originally
signed settlement agreement
was received from the Plaintiff’s
attorneys during 2002. This was repeated in the responses to the
Plaintiff’s pre-trial
questions.
[41]
These contradictions were in my view never
satisfactorily explained.
[42]
The Defendant testified that he is
presently employed as a prison warden where he attends to preparing
the duty roster. He has been
thus employed for some 20 years. He has
a grade 12 qualification and has passed a prison administration
course. The Defendant is
accordingly an educated man, well capable of
reading and understanding the documents here in issue.
[43]
Regarding the negotiations with the
Plaintiff during July 2002 at the Central Divorce Court, he did not
support the evidence of
Mr Nkosi as to how the negotiations were
conducted and testified that he and the Plaintiff had personally
negotiated with each
other and not via the attorneys, as had been
testified by Mr Nkosi.
[44]
He testified that the Plaintiff thereafter
vacated the former common home and took all the movable assets with
her, other than the
stove, for which she returned later, although it
had been built-in. On advice of Mr Nkosi, the Defendant assisted the
Plaintiff
in disconnecting and removing the stove. The
Plaintiff disputed that it was a built-in stove.
[45]
Regarding the signature of the settlement
agreement, the versions of the Defendant and Mr Nkosi were also not
consistent. The Defendant
testified that he had been called to Mr
Nkosi’s office to sign the settlement agreement after it had
been signed by the Plaintiff.
He saw her signature on the
document. This evidence, together with the inconsistencies in
Mr Nkosi’s evidence,
casts further doubt on the veracity of the
Defendant’s version.
[46]
The Defendant estimated the value of
movable goods taken by the Plaintiff at between R50 000.00 and R60
000.00. There was however
no specific evidence led on this issue to
verify this estimate.
[47]
Subsequent to the Plaintiff vacating the
said property, the Defendant obtained a further bond on the property
and effected certain
improvements thereto, being a new bedroom and
dining room and an extension to the lounge. The property was
eventually sold for
R550 000.00. The Defendant received R140 000.00
as net proceeds from the sale, after settlement of the outstanding
bond.
[48]
The Defendant denied personally forging the
Plaintiff’s signature on the settlement agreement. He
reiterated that when he
was called in by Mr Nkosi to sign the
settlement agreement, it had already been signed by the Plaintiff.
This is in stark contrast
to the version proffered by Mr Nkosi.
[49]
The Defendant confirmed that he had signed
the documents which had been sent to the offices of the Registrar of
Deeds in order to
effect transfer of the Plaintiff’s half share
in the immovable property into his name.
[50]
In the application in terms of
section
45bis(1)
of the
Deeds Registries Act, 47 of 1937
, as amended, the
Defendant deposed to an affidavit dated 6 March 2007 in which he,
inter alia
,
states under oath: ”
I was married
in community of property to Julia Ngcobo.........but the marriage was
dissolved by divorce in terms of an order of
the High Court of South
Africa , Johannesburg dated 10 October 2001, under case
number......... in terms whereof the share in the
said property of my
former spouse was awarded to me. I am entitled to one-half share in
the said property by virtue of the marriage
in community of property
and to one-half share in terms of the court order as aforesaid”.
One of the documents provided to
the Registrar of Deeds in support of the application was the
settlement agreement containing the
Plaintiff’s signature
which, it is common cause, was never made an Order of Court.
[51]
The contents of this affidavit were in
various respects false. It must be accepted that the Defendant read
the affidavit before
signing it, although he protested to the
contrary. He had furnished the conveyancers, who had drafted the
documents, with instructions.
He testified that he did not remember
reading the documents. This evidence is unconvincing and no
explanation is tendered by the
Defendant for the false information
provided under oath in order to obtain the transfer of the
Plaintiff’s half share in
the immovable property to him.
[52]
The Defendant testified that as the
Plaintiff had not worked throughout the marriage, he paid the bond on
the immovable property.
This issue had not been raised with the
Plaintiff during cross- examination. The Plaintiff had testified that
she had been working
throughout the marriage.
[53]
The Defendant could not positively testify
as to whether the settlement agreement had been signed by the
Plaintiff, but simply testified
he did not think it was forged.
[54]
He testified that the report of Mr Landman,
dealing with the forgery of the Plaintiff’s signature on the
settlement agreement,
had never been discussed with him. This appears
improbable as the issue of the forgery of that signature is central
to the matter.
His version was also in other respects contradictory
and unsatisfactory.
THE
ISSUES AND EVALUATION OF EVIDENCE
[55]
The issues centre around whether a
signature which appears on a deed of settlement which was concluded
after the parties’
divorce had been granted and the aforesaid
division Order had been made is that of the Plaintiff.
[56]
The Defendant contends that it must also be
determined that if the signature is forged, who forged it.
[57]
The versions of the Plaintiff and Defendant
are irreconcilable in material respects and are mutually destructive.
[58]
It is common cause between the parties that
the Plaintiff bears the onus.
[59]
The
technique generally adopted by Courts in resolving factual disputes
when dealing with two irreconcilable versions is set out
in
SWF
Group Limited and Another v Martell ET CIE and Others
[1]
,
wherein the following relevant applicable principles are stated:
[59.1]
Findings must be made on:
[59.1.1]
the credibility of the various factual
witnesses which depends on a Court’s impression about the
veracity of the witnesses;
[59.1.2]
their reliability; and
[59.1.3]
the probabilities.
[59.2]
In regard to the credibility of a witness,
a number of factors must be taken into consideration: (i) the
witness’ candour
and demeanour in the witness-box, (ii) his
latent and blatant bias, (iii) internal contradictions in his
evidence, (iv) external
contradictions with what was pleaded or put
on his behalf, or with the established facts or with his own extra
curial statements
or actions, (v) the probability or improbability of
particular aspects of his version, and (vi) the calibre and cogency
of his
performance compared to that of other witnesses testifying
about the same incident or events.
[59.3]
A witness’ reliability will depend,
in addition to the aforesaid factors mentioned in paragraph 59.1
(ii), (iv) and (v) above,
on: (i) the opportunity he had to
experience the event in question, (ii) the quality, integrity and
independence of his recall
of the event.
[59.4]
Having regard to the probabilities, this
necessitates an analysis and evaluation on the probability or
improbability of each party’s
version on each of the disputed
issues.
[59.5]
In light of its assessment of the factors
in 59.2 to 59.4 above, a Court should then, as a final step,
determine whether the party
burdened with the onus of proof, has
succeeded in discharging it.
[59.6]
When a Court’s credibility findings
compel it in one direction and its evaluation of the general
probabilities compels it
in another direction, the more convincing
the former, the less convincing will be the latter. But when all
factors are equipoised,
probabilities will prevail.
[60]
I have carefully weighed up
all the evidence in light of the above principles.
[61]
The Plaintiff contends that the evidence
led on behalf of the Defendant was unsatisfactory, improbable and
contradictory.
[62]
The Defendant contends that the Plaintiff’s
evidence was not truthful, specifically in relation to the number of
different
signatures which she uses.
[63]
The evidence which the Plaintiff gave was
consistent, despite rigorous cross- examination and she remained
emphatic that she had
not signed the settlement agreement, nor has
she agreed to the terms contained therein in terms of which she was
to retain the
movable property in the former matrimonial home and the
Defendant was to retain the immovable property itself.
[64]
She readily conceded that she retained most
of the movable property although there is a dispute between her and
the Defendant regarding
certain items. It is not necessary to comment
further on the movable property as there is no claim before me
relating to any such
items.
[65]
The Plaintiff’s evidence that she did
not sign the settlement agreement is the only direct evidence on this
issue, and neither
the Defendant nor Mr Nkosi could tender any
positive evidence to the contrary. The circumstantial evidence in my
view supports
the probabilities in the Plaintiff’s favour.
[66]
I accept the Plaintiff’s evidence as
being credible, consistent, reliable and probable.
[67]
The handwriting expert, Mr Landman,
impressed me as a witness, both in respect of the detailed and
thorough examination he had conducted
in determining whether the
Plaintiff had signed the settlement agreement and in the way he
responded to the cross-examination of
the Defendant who confronted
him with examples of writing he had no time beforehand to study.
[68]
When confronted with the signature which
the Plaintiff had adopted after her divorce and when she reverted to
her maiden name of
Tshabalala, Mr Landman was able to identify
corresponding characteristics in the Plaintiff’s signatures
with proper motivation
and without resorting to speculation.
[69]
The conclusion reached by Mr Landman was
that the signature appearing above the Plaintiff’s name on the
settlement agreement,
was a simulated forgery of the Plaintiff’s
signature. This was not refuted by the Defendant.
[70]
The evidence tendered by Mr Mukhakhululi of
the Registrar of Deeds was not disputed and I accept this evidence as
reliable and credible.
[71]
The evidence of the Defendant and Mr Nkosi
were contradictory in various fundamental respects relating,
inter
alia
, to the settlement negotiations
and the timing and circumstances relating to the Defendant’s
signature of the written settlement
agreement.
[72]
In addition, neither the version of Mr
Nkosi nor that of the Defendant accords with the inherent
probabilities of when the Defendant
signed the agreement, having
regard to the available dates as they emanated from the
correspondence. It would be resorting to speculation
to estimate when
the Defendant actually appended his signature to the agreement, and I
shall refrain from resorting thereto.
[73]
I was not impressed by the veracity or
reliability of the evidence of either the Defendant or Mr Nkosi. I am
of the view that I
cannot safely rely on either of their evidence in
light of the glaring inconsistencies and improbabilities contained in
their respective
versions and in light of the Defendant’s
blatant misrepresentations to the offices of the Registrar of Deeds.
[74]
From the evidence as a whole, it is not
possible to determine the identity of the individual responsible for
appending the forged
signature of the Plaintiff to the settlement
agreement and it would be speculative to attempt to do so.
[75]
The Defendant contends that the Plaintiff
was obliged to prove who forged her signature on the settlement
agreement in order to
be successful in this action. I
do not agree. In my view, in order for the Plaintiff to be
successful, it is
only necessary to prove on a balance of
probabilities that she did not sign the settlement agreement. If
no settlement agreement
was concluded, the matter must be determined
on the basis of the Order of the Central Divorce Court. It is
common cause that
the proceeds of the immovable property have not
been divided between the parties.
[76]
There is no cogent evidence to contradict
the evidence of the Plaintiff that she did not sign the settlement
agreement. Similarly,
the evidence of Mr Landman that the signature
on the settlement agreement is a simulated forgery of the Plaintiff’s
signature,
stands uncontroverted. Even if I had found the
Defendant or Mr Nkosi’s evidence to be credible, they cannot
add or
detract from this evidence.
[77]
On the probabilities, it is further
uncontroverted that the information provided to the Registrar of
Deeds by and on behalf of the
Defendant was misleading and induced it
to allow the transfer of the Plaintiff’s half share in the
immovable property to
the Defendant. If the true facts had been
disclosed, this would not have occurred. The original Court Order of
the Central Divorce
Court remained unaltered that the joint estate
should be divided. Absent a valid settlement agreement and an
amendment of the aforesaid
Court Order, that was at all times the
true position.
[78]
It is undisputed that, had the signature
not been forged, if indeed it was, the Registrar of Deeds would not
have permitted the
transfer of the immovable property, either to the
Defendant or thereafter to the purchaser thereof who had purchased
the immovable
property from the Defendant in due course. The evidence
of Mr Mukhakhululi on this issue was not disputed.
[79]
I accordingly find on the probabilities
that the Plaintiff did not agree to the terms contained in the
settlement agreement and
did not sign the settlement agreement.
[80]
It follows that the Plaintiff is entitled
to her half share in the immovable property as that part of the joint
estate which has
not yet been divided. No basis has been pleaded or
evidence led that the division should not be equal.
[81]
The question now rises how the amount
should be calculated. It is common cause that the property was
originally purchased for R76
000.00, which was financed by a
financial institution and was secured by way of a mortgage bond in
its favour. After the Plaintiff
vacated the immovable property and
after the Central Divorce Court Order was granted, the Defendant
effected certain improvements
to the property which were financed and
secured by way of a further mortgage bond. The property was
ultimately sold for R550
000.00 and the Defendant received net
proceeds of R140 000.00, after settlement of the outstanding amount
secured by the mortgage
bonds. It was further common cause that at
the time the section 45bis(1) transfer of the Plaintiff’s half
share to the Defendant
occurred, a clearance certificate was issued
for further expenses in an amount of R15 000.00.
[82]
In my view, these expenses and the original
mortgage bond at the time of the aforesaid transfer should be taken
into account in
determining the amount which is to be awarded to the
Plaintiff.
[83]
I have been invited by the Plaintiff to
grant a punitive costs order on the scale as between attorney and
client against the Defendant
in the circumstances in light of the
apparent dishonesty which has taken place. Although the facts and
probabilities as they emerge
are disturbing, I am not on the evidence
before me and on the inherent probabilities able to make an accurate
determination of
the identity of the party responsible for the
dishonesty without resorting to some speculation and after careful
consideration
I am not persuaded to grant such an order.
[84]
I accordingly make the following Order:
[84.1]
Judgment is granted in favour of the
Plaintiff in an amount of R229 500.00.
[84.2]
The Defendant is directed to pay interest
on the amount in 84.1 above at the rate of 15.5% per annum
a
tempore morae
from date of service of
the summons to date of payment.
[84.3]
The Defendant is directed to pay the costs
of suit, including the costs relating to the report, qualification,
reservation and trial
fees of the Plaintiff’s expert witness,
Mr Landman, on the scale as between party and party.
E
F DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing :14, 15 and 16 September 2011
Date
of judgemen: 9 December 2011
For
Plaintiff :Adv SL Ress
:Dudula
Incorporated
For
Defendant :Adv L Dikolomela
:
TS Nkosi Attorneys
[1]
2003
(1) SA 11
SCA at paragraph [5]; See also
Dreyer
& Another NNO v AXZS Industries (Pty) Ltd
,
2006 (5) SA 548
(SCA) at 558 paragraph 30;
National
Employers General Insurance Co Ltd v Jagers
,
1984 (4) SA 437E.