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[2016] ZASCA 194
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Deez Realtors CC t/a Firzt Realty Company and Others v South African Securitisation Program (Pty) Limited and Others (175/2016) [2016] ZASCA 194 (2 December 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No:
175/2016
In
the matter between:
DEEZ
REALTORS CC
t/a
FIRZT REALTY
COMPANY
FIRST APPELLANT
DENESE
ZASLANSKY
SECOND APPELLANT
SOLOMON
ZASLANSKY
THIRD APPELLANT
and
SOUTH
AFRICAN SECURITISATION
PROGRAM
(PTY)
LIMITED
FIRST RESPONDENT
UTAX
RENTALS (PTY) LIMITED
SECOND RESPONDENT
SUNLYN
INVESTMENTS (PTY) LIMITED
THIRD RESPONDENT
SASFIN
BANK
LIMITED
FOURTH RESPONDENT
Neutral
Citation:
Deez
Realtors v SA Securitisation Program
(175/2016)
[2016] ZASCA 194
(2 December 2016).
Coram:
Bosielo, Petse JJA
and Fourie, Makgoka and Nicholls AJJA
Heard:
18 November 2016
Delivered:
2
December 2016
Summary:
Practice: civil procedure: prescription: extinctive prescription:
interruption of: service of summons on debtor by creditor
claiming
payment of a debt arising from contract: contract affording creditor
two alternative remedies in the event of breach:
creditor suing for
accelerated payment of remaining instalments: amendment of
particulars of claim to substitute damages claim
for accelerated
payments: meaning to be assigned to word ‘debt’:
amendment not affecting essential character of the
debt: debt
remaining the same in substance:
section 10(1)
and
15
(1) of the
Prescription Act 68 of 1969
: word ‘debt’ of wider import
than ‘cause of action’.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Windell J sitting as
court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Petse
JA (Bosielo JA and Fourie, Makgoka and Nicholls AJJA concurring):
[1]
On 2 September 2010 the respondents, South African Securitisation
Program (Pty) Ltd, as first plaintiff, Utax Rentals (Pty)
Ltd, as
second plaintiff, Sunlyn Investments (Pty) Ltd, as third plaintiff,
and Sasfin Bank Limited, as fourth plaintiff (the plaintiffs),
instituted an action in the Gauteng Local Division of the High Court,
Johannesburg. The present appellants, Deez Realtors CC, Denese
Zaslansky and Solomon Zaslansky were the first, second and third
defendants respectively (the defendants). In what follows I shall,
for convenience, refer to the appellants as the defendants and the
respondents as the plaintiffs. The summons was served on the
defendants on 7 and 8 September 2010.
[2]
The plaintiffs’ action comprised two claims, styled Claim A and
Claim B in terms of which the plaintiffs claimed the sum
of
R586 239.34 and R582 088.93 respectively. The plaintiffs
also claimed, in each instance, payment of interest at the
rate of
15% per annum and costs of suit. These amounts were alleged to be due
and payable to the plaintiffs, in respect of certain
printing
equipment, pursuant to clause 14.1 of two written lease agreements,
concluded between the second plaintiff and the first
defendant on 14
December 2009. The first, third and fourth plaintiffs are
cessionaries of the second plaintiff’s right, title
and
interest accruing under the two lease agreements, in terms of two
agreements of cession concluded between the parties during
July 2005
and March 2006. The plaintiffs averred in their particulars of claim
that the first defendant had breached the agreements
in material
respects. The second and third defendants had bound themselves as
sureties and co-principal debtors for all amounts
that were or might
be due and payable under the agreements.
[3]
Common in relation to both claims was the allegation in the
plaintiffs’ particulars of claim that the first defendant
had
defaulted in the punctual payment of moneys as they fell due in terms
of the agreements. And in consequence, the first plaintiff
was
entitled to claim immediate payment of all the amounts which would
have been payable in terms of the agreements until the expiry
of the
rental period regardless of whether or not such amounts were then due
for payment.
[4]
In their plea the defendants, inter alia, alleged that the plaintiffs
had, on 16 July 2010, elected to terminate the agreements
and
communicated their election to the first defendant. This allegation
prompted the plaintiffs to amend their particulars of claim.
The
plaintiffs’ amended particulars of claim consequently alleged
that on 16 July 2010 and as a result of the first defendant’s
breach of the agreements each of the plaintiffs elected to cancel the
agreements and communicated such election to the first defendant.
The
plaintiffs further alleged that pursuant to their cancellation of the
agreements they were entitled to payment of all arrear
amounts
outstanding as at the date of cancellation together with the
aggregate amounts of rentals which would, but for the cancellation,
have been payable to the plaintiffs for the unexpired period of the
agreements. The amount representing the value of the goods
on
cancellation was, in respect of each claim, to be deductible from the
aggregate amount of rentals claimed.
[5]
The amendment of the plaintiffs’ particulars of claim in turn
elicited, from the defendants, a notice of intention to
amend their
plea in terms of rule 28(1) of the Uniform Rules of Court. In that
notice, the defendants sought to introduce a special
plea of
prescription, alleging that the plaintiffs’ claims were
prescribed in that by the time the plaintiffs’ amendment
was
effected on 23 June 2014, a period of more than three years had,
since 16 July 2010, elapsed. The plaintiffs objected to the
defendants’ proposed amendment, inter alia, on the grounds
that, if allowed, it would render the defendants’ plea
excipiable.
[6]
Following the plaintiffs’ objection, the defendants lodged an
application for leave to amend in terms of Uniform rule
28(4). In
their affidavit in support of their application, the defendants
averred that the plaintiffs’ amendment as effected
on 23 June
2014 relied on their right to cancel the agreement which they had
exercised on 16 July 2010. And as the election to
cancel ‘creat[ed]
a debt of a different nature to the debt arising from the election to
accelerate payments’ the summons
issued on 2 September 2010 and
served on 8 September 2010 did not interrupt the running of
prescription of the debt flowing from
the cancellation of the
agreement. The plaintiffs opposed the application for leave to amend.
They, in essence, contended that
their right to sue the defendants
both prior to and post the amendment of their particulars of claim
derived from clause 14.1 of
the two rental agreements in issue. And
that such right arose from the breach of the agreements.
Consequently, the debt claimed
in the pre and post amendment of the
particulars of claim was in reality the same or substantially the
same debt.
[7]
In due course the application for leave to amend came before Windell
J in the court a quo. After her analysis of the case law,
the learned
judge stated the following:
‘
[26]
A right to claim performance under a contract ordinarily becomes due
according to its terms or, if
nothing is said, within a reasonable
time, which, in appropriate circumstances can be immediately. When
the contract fixes the
time for performance
mora
is
said to arise from the contract itself (
mora
ex re
).
The rental agreements
in
casu
contained a
lex
commissoria
entitling
the creditor to cancel the contract if [the first defendant] fails to
perform by the time fixed for performance.’
[8]
She then continued:
‘
[28]
Extinctive prescription commences to run as soon as the debt is due.
In terms of clause 14 the debt "became
due" when [the first
defendant] defaulted in the payment of the monthly installments.
Prescription started to run from the
date of [the first defendant’s]
breach. At the time of the breach the plaintiff had all the necessary
facts to institute
action for specific performance or alternatively
cancelation.’
[9]
Ultimately, she concluded:
‘
[35]
The allegations and relief need not be identical for the purpose of
the interruption of prescription.
I am satisfied that the plaintiffs'
amended claim is not a different debt from the one initially pleaded.
The issuing of the summons
therefore interrupted prescription. The
proposed special plea is accordingly excipiable and bad in law.’
[10]
Consequently, the court a quo dismissed the application with costs.
The appeal now before us is with its leave.
[11]
Counsel were agreed that in order to determine whether the debt
sought to be recovered by the plaintiffs prior to and post
the
amendment is substantially the same, it is necessary to compare the
allegations and relief claimed in both instances.
[1]
A comparison of the particulars of claim before and after the
amendment reveals that the plaintiffs sued on two lease agreements.
In both instances the plaintiffs relied on clause 14.1 – which
is in identical terms in both agreements – and which
affords
the plaintiffs two inconsistent remedies. The one remedy is to cancel
the contract. Upon cancellation, the creditor would
be entitled to
sue for: (a) the amounts in arrears as at the date of cancellation;
(b) liquidated damages representing the aggregate
of all rentals
which would, but for the cancellation, have been payable for the
remaining period of the agreement; and (c) the
market value of the
goods, as determined in accordance with one or the other of the ways
provided for in the agreements, would
be deductible from the quantum
of the liquidated damages.
[12]
Alternatively, in the event that the creditor elects to keep the
contract in force the following remedies would then accrue.
The
creditor would be entitled to sue for: (a) arrear rentals as at the
date of election; (b) accelerated payment representing
all of the
rentals which would have become due and payable under the contract
for the remaining unexpired period of the contract;
and (c)
repossession of the goods pending full settlement of the amounts
claimed.
[13]
As already mentioned, clause 14.1 of the agreements accorded the
plaintiffs a right to cancel the agreements, if the first
defendant,
as lessee, failed to comply with any of its obligations under the
agreements. This occurred when the defendants failed
to pay certain
instalments as they fell due and payable. In that event, the
plaintiffs would have a right, without prejudice to
any other rights
which they might have in law, to cancel the agreements without prior
notice. In addition, the plaintiff’s
would have a right to: (a)
take possession of the goods; (b) demand payment of arrear rentals
due on the date of cancellation;
and (c) claim liquidated damages.
The liquidated damages would be the aggregate of all rentals which
would, but for cancellation,
have been payable for the unexpired
period of the contract less the market value of the goods as at the
date of their return to
the possession of the plaintiffs.
[14]
The alternative remedy, upon breach by the first defendant, was to
sue for the immediate payment of the aggregate amount of
all rentals
which would otherwise have become due and payable in terms of the
agreements for the unexpired period of the agreements,
and all arrear
rentals in terms of the agreements. In addition, the plaintiffs would
be entitled to be placed in possession of
the goods until full
payment of the amounts due under the agreements.
[15]
As already indicated, on 16 July 2010 the first plaintiff addressed a
letter to the first defendant advising that the first
defendant was
in arrears with its instalments and calling upon it to pay the total
amount then in arrears and also the amount representing
the aggregate
value of the rentals which would have been payable had the agreements
continued until the expiry of the rental period.
The first plaintiff
also intimated in that letter that should the first defendant fail to
pay the amounts claimed within seven
days of the date of demand, the
first plaintiff would issue summons without further notice.
[16]
As previously mentioned, the plaintiffs instituted an action against
the defendants on 2 September 2010. In this action the
plaintiffs
claimed payment of all the amounts which would have been payable in
terms of the agreements until the expiry of the
initial period. The
defendants pleaded to this claim and averred that the plaintiffs,
having elected to cancel the agreements,
were precluded from claiming
accelerated payments, but were obliged to sue for liquidated damages.
[17]
The point taken by the defendants in their plea that the plaintiffs
could not sue for accelerated payments prompted the plaintiffs
to
amend their particulars of claim. In the latest amendment of their
particulars of claim, the plaintiffs, relying on the self-same
breach
by the defendants, claimed liquidated damages representing the
aggregate of all rentals which would have been payable in
terms of
the agreements but for the early termination of the agreements.
[18]
As already indicated, the defendants sought to amend their plea by
introducing a special plea of prescription to the plaintiffs’
amended particulars of claim. In the court a quo, the plaintiffs
successfully opposed the proposed amendment. The defendants’
case was, and still is, essentially that the debt in the plaintiffs’
amended claim is an entirely different debt from the
one that was
claimed in the previous claim. And that the right which the
plaintiffs sought to enforce in their original claim derived
from
their election to sue for accelerated payments, thus, in effect,
enforcing the agreements. But in the amended claim, the right
sought
to be enforced flowed from the cancellation of the agreements. As the
original claim (namely, for accelerated payment of
rentals) did not
serve to interrupt the running of prescription of the right derived
from the cancellation of the agreements, it
followed that the debt
claimed in the amended claim, it being a different debt, has become
prescribed.
[19]
Counsel for the defendants emphasised, as did counsel in
CGU
Insurance v Rumdel (Pty) Ltd
,
[2]
that if the plaintiffs had pursued their claim in its unamended form
it would have eventually failed at the trial. In that event,
a
defence of
res
judicata
would
not be available to the defendants if the plaintiffs were to
institute a fresh action based on the cancellation of the agreements.
It was argued that these factors underscore the material distinction
between what counsel contended were two different debts.
[20]
As I see it, this appeal raises the fundamental question whether the
debt in the amended claim is the same or substantially
the same debt
as originally claimed by the plaintiffs. If it is, the appeal must
fail.
[3]
But if it is not, then the appeal must succeed.
[21]
If the service of the plaintiffs’ summons on 8 September 2010
did not interrupt the running of prescription of the plaintiffs’
claim now advanced in the amended particulars of claim, then the
plaintiffs’ claim had long become prescribed by the date
on
which the amendment was effected. It is to that question that I now
turn.
[22]
The parties were agreed that the Prescription Act 68 of 1969 (the
Act) applies to a debt of the kind in issue in this appeal.
Section
10(1) of the Act provides that a debt shall, subject to Chapters 3
and 4, be extinguished after a lapse of the period which
in terms of
the relevant law applies in respect of the prescription of such debt.
Section 12(1) of the Act, which is the relevant
law referred to in
s 10(1), in turn, provides, subject to subsections (2), (3) and
(4) which are not material for the present
purposes, that
prescription shall commence to run as soon as the debt is due.
Section 15(1) which provides for judicial interruption
of
prescription reads:
‘
15
(1) The running of prescription shall, . . . , be interrupted by the
service on the debtor of any process whereby the creditor
claims
payment of the debt.’
[23]
I propose dealing briefly with the general principles relating to
applications for amendments of pleadings. First, it must
be
emphasized that the primary object of allowing an amendment is ‘to
obtain a proper ventilation of the dispute between
the parties, to
determine the real issues between them, so that justice may be done’.
(See, for example, D E van Loggerenberg
Erasmus Superior Court
Practice
2016 5I2 at D1-332;
Blaauwberg Meat Wholesalers CC v
Anglo Dutch Meats (Exports) Ltd
2004 (3) SA 160
(SCA) para 12;
Cross V Ferreira
1950 (3) SA 443
(C) at 447A-H.)
[24]
As to the general approach to be adopted, the Constitutional Court
made plain in
Affordable Medicines Trust & others v Minister
of Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) that (para 9):
‘
The
practical rule that emerges . . . is that amendments will always be
allowed unless the amendment is
mala
fide
. . . or unless the amendment will cause an injustice to the other
side which cannot be cured by an appropriate order for costs,
or
“unless the parties cannot be put back for the purposes of
justice in the same position as they were when the pleading
which it
is sought to amend was filed”. . . . The question in each case,
therefore, is, what do the interests of justice
demand?’
[25]
But, where an amendment would render a pleading excipiable it will,
save in exceptional circumstances, not be allowed. This
is so because
generally speaking the issue that the amendment seeks to introduce
must be a triable issue.
[4]
By a triable issue is meant an issue that is viable or relevant for
adjudication at the trial and which, as a matter of probability,
will
be proved by the evidence foreshadowed in the notice of intention to
amend.
[5]
[26]
In
The Standard Bank of South Africa Ltd v Miracle Mile
Investments 67 (Pty) Ltd & another
[2016] ZASCA 91
;
[2016] 3
All SA 487
(SCA) this court said (para 26):
‘
The
election and communication thereof in the form of the requisite
notices are essential pre-conditions to create a cause of action
in
the first place. . . . Prescription would therefore commence to run
only from the date of a notice claiming the outstanding
balance
. . .’
[27]
In this case, the requisite notice cancelling the agreements and
demanding: (a) payment of the amount in arrears as at the
date of
cancellation; (b) payment of the liquidated damages; and (c) return
of the goods, was given on 16 July 2010. As already
mentioned, the
first plaintiff instituted an action against the defendants on 2
September 2010 and by 8 September 2010 summons
had been served on the
defendants. Consequently, it must be accepted that when the
plaintiffs instituted action against the defendants,
the process
commencing action interrupted the running of prescription when it was
served on the defendants by 8 September 2010
at the latest.
[28]
I have, to the extent necessary for the present purposes, already set
out the similarities between the plaintiffs’ claim
as pursued
in the plaintiffs’ summons both prior to and post the
amendment. It is now apposite to make reference to the differences
resulting in two different debts as perceived by the defendants. The
defendants rely on four bases for their contention. First,
that
prescription did not commence to run until the decision to cancel was
taken and communicated to the first appellant. It bears
mentioning
that the election to cancel was exercised and communicated to the
defendants on 16 July 2010. Second, the original claim
was for
payment of accelerated rentals under the agreement whereas the claim
pursued post the amendment was for liquidated damages.
And the
quantum of the damages is different to the quantum of the amount of
accelerated rentals. Third, the
facta
probanda
necessary to sustain the two claims differ. Fourth, cancellation
brought the agreements to an end, whereas the claim for accelerated
rentals did not, but on the contrary sought to enforce the
agreements.
[29]
Counsel for the defendants referred us to a number of cases in
support of the proposition that in this case we were dealing
with two
substantially different debts. That being so, proceeded the argument,
the proposed amendment sought to be introduced by
the defendants
should have been allowed by the court a quo. I do not find it
necessary to analyse and discuss each of those cases.
The defendants
strongly relied on
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA) – a case concerned with a defence of
res
judicata
–
and contended that ‘a claim for liquidated damages remains a
claim for damages’ and that it does not avail the
plaintiffs
that the liquidated damages arose from a contract. And, that such
liquidated damages were quantified in accordance with
the formula
stipulated in the agreements was of no consequence.
[30]
The facts in
National
Sorghum Breweries
were
briefly as follows. In the first summons the plaintiff relied on a
contract that had been breached and sought cancellation
of the
contract and repayment of the purchase price. In the second summons,
whilst the plaintiff relied on the conclusion of the
contract, its
breach and cancellation thereof, it claimed damages alleged to have
been suffered as a consequence of the breach.
The court of first
instance dismissed the defence of
res
judicata
on the ground that the two claims were different despite the presence
of common elements in the allegations made. The appeal against
that
finding was dismissed by this court. In my view that case is
distinguishable on the facts and cannot assist the defendants.
Indeed, it aptly demonstrates the dangers of arguing by analogy.
[31]
The defendants also heavily relied on a passage in
Imprefed (Pty)
Ltd v National Transport Commission
1990 (3) SA 324
(T) in which
the following is stated (at 329I-330A):
‘
It
is true that the amount claimed is the same as the amount previously
claimed (after an increase) as contractual remuneration.
The fact
remains that contractual remuneration and damages are not the same
thing.’
Whilst
accepting that this statement might well be obiter, the defendants
were nevertheless emboldened by its apparent approval
by this court
in
CGU
Insurance
.
However, this court in
CGU
Insurance
found
Imprefed
(Pty) Ltd
to
have been distinguishable on the facts from the facts of that case.
It also noted that the nature of the other debt in
Imprefed
(Pty) Ltd
was different. Similarly, for the present purposes, it offers no
support to the defendants that is tenable on the facts of this
case.
[32]
The defendants made much of the fact that enforcement of agreements
gives rise to consequences different to those that would
flow from
cancellation of agreements. For this reason it was argued that the
two inconsistent remedies provided for in clause 14.1
give rise to
two different debts. It is of course true that different consequences
flow from either enforcing or cancelling a contract.
But the
defendants’ contentions on this score are only correct as far
as they go. Beyond that, they falter. In the context
of clause 14.1,
whichever way the election is exercised, it gives rise to a single
debt. This must therefore necessarily mean that
the debt owed by the
debtor does not change its essential character. In reality, what the
plaintiffs did in this case was to invoke
a wrong remedy in their
particulars of claim – one which was not available to them
having previously elected to cancel the
agreements – to sue for
the debt then due by the defendants. The defendants’ plea
alerted them to this mistake. What
they then sought to achieve with
their amendment was to allege, in the words of Jones AJA in
CGU
Insurance
,
the correct ‘material facts that begot the debt’ owed to
them in the first place. That self-same debt flowed from
the breach
of the two agreements. (Compare
HMBMP
Properties (Pty) Ltd v King
1981
(1) SA 906
(N) at 910A-911D.) Indeed, the terms of clause 14.1
themselves contemplate a single debt arising in the event of breach.
[33]
To my mind, the contentions advanced by the defendants are
unsustainable. They manifest a misconception of the concept of a
‘debt’ within the meaning of
s 10(1)
of the
Prescription Act. This
court has repeatedly emphasized that the word
‘debt’ bears a ‘wide and general meaning’ and
that it ‘does
not have the technical meaning given to the
phrase “cause of action” when used in the context of
pleadings.’
[6]
In
Evins
v Shield Insurance Co Ltd
1980
(2) SA 814
(A) at 825F-G, Trollip JA was at pains to explain the
distinction between a ‘debt’ on the one hand and ‘cause
of action’ on the other in these terms:
‘“
Cause
of action” is ordinarily used to describe the factual basis,
the set of material facts, that begets the plaintiff’s
legal
right of action and, complimentarily, the defendant’s “debt”,
the word used in the
Prescription Act.’
[7
]
[34]
This meaning of ‘debt’ was, most recently, elaborated
upon by the Constitutional Court in
Makate v Vodacom Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC) which, with reference to the New
Shorter Oxford English Dictionary, 3 ed (1993) vol 1 at 604, said
(para 85):
‘
1.
Something owed or due: something (as money, goods or service) which
one person is under an obligation to pay or render to another.
2. A
liability or obligation to pay or render something; the condition of
being so obligated.’
[35]
In my view, the effect of the amendment of the plaintiffs’
particulars of claim was merely to cure a defective cause
of action
(namely, mistakenly claiming accelerated rentals when they had
already cancelled the contracts) by introducing the correct
cause of
action for liquidated damages pursuant to the election that they had
exercised. The nature of the debt claimed remained
the same. In
substance, the remedies provided for in clause 14.1 both sought to
place the plaintiffs in the position in which they
would have been,
had the breach not intervened. Hence they gave rise to a single debt.
As emphasised by this court in
CGU
Insurance
,
‘the debt is not the set of material facts’ required to
sustain the cause of action but rather ‘that which is
begotten
by the set of material facts.’
[36]
In these circumstances, it follows that the appeal must fail for
substantially the same reasons that the court a quo gave.
In the
result the following order is made:
The
appeal is dismissed with costs.
________________________
X
M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellants:
S C Vivian
Instructed by:
T G Fine Attorneys, Johannesburg
c/o Lovius Block, Bloemfontein
For
the Respondents: A G Sawma
SC
Instructed by:
Wright Rose-Innes Inc, Johannesburg
c/o
Phatshoane Henney, Bloemfontein
[1]
Wavecrest Sea
Enterprises (Pty) Ltd v Elliot
1995
(4) SA 596
(SE) at 600H-J, cited with approval by this court in
CGU
Insurance Ltd v Rumdel Construction (Pty) Ltd
2004
(2) SA 622
(SCA) para 7.
[2]
Ibid
at para 4.
[3]
See for example,
Mazibuko
v Singer
1979
(3) SA 258
(W) at 265D-266C;
Sentrachem
Ltd v Prinsloo
1997
(2) SA 1
(A) at 15A-16D;
Associated
Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and
Lacquers v Smit
2000
(2) SA 789
(SCA) paras 13-15.
[4]
Gross v
Ferreira, ibid
at 450A-F. See also
Caxton
Ltd v Reeva Forman (Pty) Ltd & another
[1990] ZASCA 47
;
1990
(3) SA 547
(A) at 565H-J.
[5]
Ciba-Geigy
(Pty) Ltd v Lushof Farms (Pty) Ltd & ‘n ander
2002 (2) SA 447
(SCA) para 34.
[6]
CGU Insurance
para 6;
Drennan
Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 212G-I.
[7]
See also
FirstRand
Ltd v Nedbank (Swaziland) Ltd
2004
(6) SA 317
(SCA) para 4.