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[2014] ZAGPJHC 114
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Elatfield (Pty) Ltd v Celtic Freight Logistics (Pty) Ltd (10198/2013) [2014] ZAGPJHC 114 (6 May 2014)
REPUBLIC
OF
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
10198/2013
DATE: 06
MAY 2014
In the matter
between:
ELATFIELD
(PTY)
LTD
...............................................................................
Applicant
And
CELTIC
FREIGHT LOGISTICS (PTY)
LTD
........................................
Respondent
In re:
APPLICATION TO
INTERVENE
HYGIENIC
TISSUE MILLS
CC
...................................................
Intervening
Party
J U D G
M E N T
N F
KGOMO, J
:
INTRODUCTION
[1] In the main application
launched by the applicant during March 2013, the applicant sought
an
order directing the respondent to release to the applicant 30 tissue
paper reels (“
the tissues
”) allegedly owned by the
Intervening Party, and which were at the time in the respondent’s
possession at its warehouse
situated at 56 Rigger Road, Spartan,
Kempton Park.
[2]
The tissues were delivered to
the respondent by the applicant during January or February
2013 for
the former to transport them or have them transported to a client of
the Intervening Party in Harare, Zimbabwe.
According to the
applicant specifically, the goods were taken to the premises of the
respondent solely for the purpose of them
being transferred onto
another vehicle owned by a freight-forwarding company going by the
names of Trafalgar Logistics for transportation
by the latter
logistics company to Zimbabwe.
[1]
[3]
Trafalgar Logistics had been engaged by the applicant to collect the
tissue reels
from the respondent’s premises and transport them
to Paper Company Holdings in Harare, Zimbabwe. Copies of the
bill
of lading or loading instruction provided to Trafalgar Logistics
by the applicant as well as the Tax Invoice issued by the Intervening
Party in respect of these tissue rolls are annexed to the founding
affidavit in the main application.
[2]
[4] Towards the end of June
2013, specifically on 24 June 2013, the intervening party launched
the application to intervene and related orders in the following
terms or seeking the following orders:
4.1 That Hygienic
Tissue Mills CC (hereinafter referred to as the “
Intervening
Party
”) be and is hereby granted
leave to intervene as an interested party in this application;
4.2
That
it be declared that the respondent is not entitled to exercise any
lien over the Intervening Party’s thirty (30) tissue
paper
reels weighing 21 840 kg then in the respondent’s possession at
its warehouse situate at 56 Rigger Road, Spartan, Kempton
Park or
wherever same may be found;
4.3
That
the respondent be and is hereby directed to forthwith return to the
Intervening Party the 30 tissue paper reels;
4.4
That
in the event that the respondent failed,
alternatively
refused,
alternatively
neglected
to comply with the prayer set out in 4.3 above, the sheriff of this
Court be directed, mandated and authorised to give
effect thereto;
4.5
That
the respondent be ordered to pay the costs of this intervention
application; and
4.6
Further
and/or alternative relief.
[5]
When the respondent filed its
answering affidavit on 2 July 2013 it emerged that the respondent
had
exercised “
some
sort of lien
”
over the property for the applicant’s indebtedness to it and
had even sold the tissue paper reels and vended the proceeds
towards
reducing such indebtedness to it by the applicant.
[3]
The date of sale is given as June 2013.
[6] What is material is that
when the Intervening Party launched its application, it was labouring
under the impression that the tissue paper reels were still being
kept or “
held in lien
” at the respondent’s
warehouse, which fact was part of the papers in the main application.
THE
PARTIES
[7] The Intervening Party,
namely, Hygienic Tissue Mills CC, is a close corporation duly
incorporated in terms of the Close Corporations Act, 1984 (Act 69 of
1984) (as amended) and it has its principal place of business
given
as or situate at 19 Cardiff Road, Willowtown, Pietermaritzburg,
KwaZulu-Natal.
[8]
The applicant, ELATIFIELD (PTY)
LTD is a limited liability company, duly registered and
incorporated
in accordance with the company laws of the Republic of South Africa
(“
RSA
”)
with its registered office situate at 7 Daly Road, Marlands,
Germiston, Ekurhuleni District, Gauteng Province. It
also
trades under the name and style of
Sub-Sahara
Freight
.
[9] The respondent, CELTIC
FREIGHT LOGISTICS (PTY) LTD is a limited liability company duly
registered and incorporated in accordance with the company laws of
the RSA, having its principal place of business situate at 56
Rigger
Road, Spartan, Kempton Park, Ekurhuleni District, Gauteng Province.
ISSUES TO
BE DECIDED
[10]
What is in issue here and to be decided by
this Court is whether or not the tissue paper reels in
question here
are the property of or owned by the Intervening Party. If so, then
whether or not a declarator sought by the Intervening
Party that it
so does should be issued. Furthermore, now that it is common
cause that the respondent sold the tissue paper
reels during June
2013, whether the respondent may be ordered to compensate the
Intervening Party to the tune of the value thereof,
as a
naturalia
of the
above.
BRIEF
HISTORY OF THE MATTER AND RELEVANT FACTUAL MATRIX
[11] According to the Intervening Party, on
or during January and/or February 2013 the Intervening Party
engaged
the services of the applicant to facilitate the transportation of 30
reels of tissue paper for delivery to the latter’s
clients in
Harare, Zimbabwe. To facilitate the above the Intervening Party
engaged the services of SSR Transport to transport the
tissue paper
reels from Pietermaritzburg to the applicant’s business
premises in Spartan, Kempton Park. The instructions
from the
Intervening Party as agreed with the applicant was that the tissue
paper reels be loaded or transferred onto a truck arranged
by the
applicant for their transportation to Zimbabwe.
[12] At all times the applicant remained the
owner of the tissue paper reels.
[13] As it transpired later, instead of the
tissue paper reels being transported to Zimbabwe, they were
detained
and impounded by the respondent at its premises who claimed a
lien
over them for a debt owed to them by the applicant.
[14]
The applicant, through its Sub-Sahara
Freight company, notified the Intervening Party about this aspect
in
an undated letter.
[4]
For completeness sake, this letter is quoted in its entirety. It
reads as follows:
“
Dear Ashraf
Referring
[to]
your
Tax Invoice 108333
We
hereby wish to confirm that we cannot execute delivery of your tissue
jumbo rolls to your customer Paper Co Holdings (Pvt) Ltd,
No. 20
Austin Road, Workington, Harare, Zimbabwe as it is being detained
unlawfully at the premises of Celtic Freight and Logistics
(Pty) Ltd,
56 Rigger Road, Spartan, Kempton Park. We used the premises of Celtic
Freight and Logistics as a handling/storage facility
before we
trans-ship it to Zimbabwe destined vehicles. We have written to
Celtic Freight informing them that these goods
belong to Hygienic
Tissue Mills and Paper Co Holdings and were in transit to Zimbabwe
but they refuse to release
these to us for onward transport to Zimbabwe
.
Attached you will find the Celtic Freight – Goods Received
Voucher # GRVJ 150213/25428.
[my
underlining].
We keep in copy our attorney C Le Roux.
”
[15] An exchange of letters between the
applicant’s and respondent’s attorneys during
February
2013 which also relate to the ownership of the tissue paper reels
followed. A goods received voucher issued by the respondent
on 15
February 2013 acknowledges receipt at its premises of the 30 tissue
paper reels as delivered to it by Sub-Sahara Freight
(Pty) Ltd, the
applicant’s company.
[16]
In a letter dated 21 February 2013 written
by the applicant’s attorneys to the respondent’s
attorneys in response to the latter’s letter dated 19 February
2013
[5]
the respondents, who ostensibly were refusing to release the 30
toilet paper reels, are notified of the Intervening Party’s
ownership of the tissue paper reels. At paragraph 2.2(b)
thereof the following is recorded:
“
2.2(b)
Our
client reiterates the terms of the freight and logistics agreement as
set out in 1 above and furthermore denies that your client’s
standard terms and conditions of trade are applicable thereto.
Even if these standard terms
and conditions of trade are applicable then it is denied that the
alleged ‘lien’ can be
exercised against cargo belonging
to a third party. Your client is currently alleging a lien in
respect of the (good of )
Hygienic Tissue Mills Cargo
which,
to the knowledge of your client, does not belong to our client but to
Paper Company Holdings (Pvt) Ltd in Zimbabwe …
”
(my
underlining)
[17] Representatives of the Intervening
Party engaged with the applicant and even the respondent’s
people to prove ownership of the tissue paper rolls. They attended at
the applicant’s premises on 6 March 2013 and proceeded
to the
respondent’s premises which are incidentally within the same
erf or precinct. The respondent refused to release
the tissue
paper reels to the Intervening Party. A criminal case opened with the
police was discontinued after the police were
of the view that this
was a civil matter.
[18] On 22 March 2013 the applicant
launched motion proceedings against the respondent and the ownership
of the tissue paper rolls was specifically spelled out.
[19] Prayer 1 thereof reads as follows:
“
1.
Directing the respondent to release to the applicant 30 tissue paper
reels weighing 21 840
kilograms which are owned by Hygienic Tissue
Mills CC and which are in the respondent’s possession at its
warehouse situate
at 56 Rigger Road, Spartan, Kempton Park; …
”
[20] It should also be mentioned at this
stage that this consignment of tissue paper was accompanied by
an
invoice or bill of lading addressed to Paper Co Holdings (Pty) Ltd, P
O Box GD 253, Greendale, Harare, Zimbabwe issued by the
Intervening
Party.
RESPONDENT’S
REPOSTÉ TO INTERVENING PARTY’S CLAIM TO OWNERSHIP
[21] In addition to the respondent denying
that the Intervening Party was the owner of the tissue paper
reels,
it also relies on Clause 37 or 38 of some standard terms and
conditions relating to the business relationship between the
applicant and the respondent.
[22] It is trite that the Intervening Party
is not a party to the alleged business relationship between
the
applicant and the respondent. As such, this ground cannot and
should not avail the respondent in this interlocutory application
by
the Intervening Party. On all reasonable constructions, this clause
does not and cannot apply to goods belonging to a third
party who is
not a party to such terms and conditions. Consequently, there are no
grounds or justification, based on this ground,
to exercise a
lien
over goods belonging to the Intervening Party based on a debt owed to
the respondent by the applicant.
WHETHER
REI VINDICATIO ESTABLISHED
[23]
The owner of a thing has the right to
possess it; to use it; to destroy it
[6]
and to alienate it.
[7]
Possession can even be through the doctrine of
constituio
possessorium
.
If any of these rights are in any way infringed, the owner has
appropriate legal remedies, like the
rei
vindicatio
.
[24]
If and when an owner of property is deprived
of his possession thereof, he may, by the
rei
vindicatio
,
reclaim, or recover the possession from any person or institution in
whose possession the thing is found.
[8]
[25] To succeed with a
rei vindicatio
or vindicatory action the claimant need merely prove two facts,
namely:
(a)
that
he is the owner of the thing; and
(b)
that
the thing is in the possession of the defendant, or any other
person.
[9]
[26]
It does not make any difference whether the
possession is
bona
fide
or
mala
fide
:
The owner of a movable property found in the possession of a third
party may recover it from such possession without having
to
compensate him, even in cases where the possessor is in good faith
and who has given value for it, depending on the circumstances.
[10]
In the case of land, the absolute owner may eject any person in
possession thereof and/or interdict him/her and others from
further
trespassing on it or even claim damages for loss or destruction
caused by trespassers.
[11]
[27] From the totality of the evidence in
this application, this Court is satisfied that the Intervening
Party
is the owner of the 30 tissue paper reels in issue here. It is also
the finding of this Court that the respondent’s
denial of such
ownership is not supported by the facts and circumstances inherent
herein. Neither is it (denial) borne out by the
evidence. As already
alluded to, the respondent’s reliance on Clause 38 of the terms
and conditions in the business agreement
between it and the applicant
does not affect the Intervening Party’s right of ownership in
the tissue paper reels.
[28] Which brings us to the next question:
What next then?
[29] As also already alluded to above, when
the Intervening Party launched this application, it was under
the
impression that the respondent was still in possession of the goods.
It is my finding that the Intervening Party has satisfactorily
explained this. I find thus further, that the Intervening Party’s
impression or belief was genuine at the time.
[30] The issue now to be determined is what
should happen now that the
rei vindicatio
cannot be relied
upon or used.
[31]
When and where movable property, in this
case, the tissue paper reels, have been despoiled from its
owner
unlawfully – in any manner -, and it has been alienated or sold
– as in this case – in such circumstances
that the owner
cannot vindicate the property, he may claim the value thereof from
the culprit or from any other person who parted
with the possession
thereof
with the knowledge of the
owner’s claim thereof
[12]
(my
emphasis). However, this would also apply where the possessor
purchased the goods in good faith but then proceeded to
dispose of it
when he/she had been made aware that the real owner was demanding
their return, or worse still, when legal proceedings
are already
under way to reclaim such property. Such disposition would not be
bona
fide
.
[32] As early as February 2013 the
respondent was notified that the tissue paper reels belonged to the
Intervening Party. The applicant also launched the main application
herein on 22 March 2013, clearly and unambiguously stating
that these
tissue paper reels belonged to the Intervening Party. The invoices
and bills of lading alluded to above also proved
or ought to have
awakened the respondent to the fact that it was having some third
party’s goods in its possession. By proceeding
to sell the
tissue paper reels during June 2013 while armed with this knowledge
cannot be said to have been a sale by a
bona fide
possessor
who did not know that the goods belonged to a third party.
[33] The facts in this application
point to the respondent having proceeded to sell the tissue paper
reels in clear disregard of the Intervening Party’s ownership
thereof. One would not be far from the truth if one ventures
to state
that the respondent regarded the Intervening Party’s ownership
with contempt.
[34] With the above scenario in mind the
next question to be answered is whether or not the respondent
can ask
that the Intervening Party be estopped from exercising its right to
claim the value of the tissue paper reels.
[35]
The legal position relative to any claim
based on estoppel can be summarised as follows: Where
the owner
of movable (or immovable) property
[13]
entrusts the possession thereof to another person in such
circumstances that his/her conduct amounts to a representation that
the custodian possessor is the owner of the thing or that he has the
power to alienate it; and the custodian sells or delivers the
thing
to a
bona
fide
purchaser who relies on the representation, the true owner, if his
conduct was
negligent
,
is estopped by his conduct from disputing the title of the innocent
holder, and he consequently cannot vindicate the thing.
[14]
The jurisdiction for such estoppel will be that the original owner
was negligent.
[15]
The
onus
of proof of such negligence is on the innocent holder and it is
usually a difficult task to achieve.
[36]
In
Johaardien
v Stanley Porter (Paarl) (Pty) Ltd
[16]
the court held among others that the owner may “
possibly
”
be estopped where his conduct has not been proved negligent but where
“…
compelling
considerations of fairness within the broad concept of the exceptio
doli …
”
exists.
[37] There is nowhere in the circumstances
of this case and the facts where it can be said the Intervening
Party
was negligent or has created an impression by his conduct (his
representation) that could have moved the respondent to act
to its
detriment.
[38]
In
Alderson
v Flitton (Tzaneen) (Pty) Ltd v E.G. Duffy Spares (Pty) Ltd
[17]
it was held among others that when a plaintiff owner sues a defendant
in an
actio
ad exhibendum
for payment of the value of the owner’s property which was
formerly in the defendant’s possession but which he/she
is
unable to restore because of him/her having ceased to possess it, the
general principle to be applied is that the
onus
is on the plaintiff to allege and prove at least that at the time of
the defendant’s loss of possession, he had knowledge
of the
plaintiff’s ownership or of his/her claim to ownership of the
property.
[39] It is my finding that the Intervening
Party has managed to prove that at the time the respondent
sold the
tissue paper rolls or reels, it knew or had knowledge that they were
owned by the Intervening Party.
[40] In the light of the above, can it be
said that the respondent was accentuated by some degree of negligence
or lack of sufficient knowledge of relevant facts and/or factors at
the time it disposed of the toilet paper reels.
[41] The totality of evidence herein does
not lend itself to such interpretation.
[42]
In
Sadie
v Standard Bank,
[18]
De Villiers CJ held among others that –
“…
the
deliberate sale and delivery of goods, with full knowledge of the
owner’s claim to his rights of ownership, cannot be
regarded as
an ordinary loss by negligence. It is a wrongful act, which the
person committing it cannot avail himself of
a defence to an action
for the re-delivery of the goods, or, failing such delivery, for the
value (Digest 6.1.68; Voet 6.1.32)
…
”
[43] The facts, circumstances and evidence
in this application points to the respondent falling under
the
category of persons mentioned by De Villiers CJ above. It sold the
tissue paper reels in issue here well knowing that court
proceedings
(in which they are respondents) for their return were well and truly
under way.
WHETHER
RESPONDENT WAS ENTITLED TO EXERCISE
LIEN
[44] If the respondent is entitled to
exercise a
lien
over property for moneys owed to it, it can do
so over the property belonging to those who owed it.
Correspondingly therefore,
the respondent can hardly be heard to
exercise a
lien
over the Intervening Party’s tissue
paper rolls or reels. They are owned by the Intervening Party and the
latter is not indebted
to the respondent.
[45]
The respondent sought to pounce,
opportunistically in my view, on a sentence in the letter from the
applicant’s attorneys to its (respondent’s) attorneys
dated 21 February 2013
[19]
which reads as follows:
“…
Your
client is currently alleging a lien in respect of the Hygienic Tissue
Mills cargo which, to the knowledge of your client, does
not belong
to our client but to Paper Company Holdings (Pvt) Ltd in Zimbabwe
…
”
[20]
[46] It is my finding that the above
statement was an unfortunate utterance from the applicant’s
attorneys which is at odds with the totality of averments by the
attorneys in these regards. The statement is even contradictory
of itself where it starts with “…
alleging a lien in
respect of the Hygienic Tissue Mill’s cargo …
”.
[47] Be that as it may, this Court is
satisfied that the tissue paper reels were the property of the
Intervening Party, namely, Hygienic Tissue Mills CC.
[48] The respondent has also latched on the
above assertion to claim that there is a dispute of facts
that cannot
be resolved on the papers. I agree with the Intervening Party’s
submission that there are no factual disputes
on the papers that the
Intervening Party’s property was being detained and had been
subsequently sold by the respondent for
moneys allegedly owed to it
by the applicant. It is also common cause that (on the papers and in
fact) the Intervening Party is
not indebted to the respondent in any
way whatsoever.
[49] I consequently find that the issue as
to whether or not the respondent is entitled in law or otherwise
to
exercise any
lien
over the Intervening Party’s property
can be determined on the papers as they stand. There is no serious or
irresolvable
dispute in the papers that can possibly prevent this
Court from determining whether or not such
lien
can be
exercised or who the real owner of the tissue paper reels is or was.
RIGHT TO
ITNERVENE
[50] Right at the on-set of argument in this
matter the respondent abandoned its objection to the Intervening
Party’s deponent of its founding affidavit’s mandate or
authority to so depose to it. It also abandoned its objection
based on the use of the word “
defend
” in the
expression “…
to defend the proceedings in the South
Gauteng High Court, Johannesburg …
. Both parties also
asked the court to condone their respective late filing of their
replying affidavit (in respect of the Intervening
Party) and
answering affidavit (in respect of the respondent). Such condonation
was accordingly granted.
[51] The respondent has submitted that the
Intervening Party does not have any direct and substantial
interest
in the subject matter of this application warranting it being granted
leave to intervene. My understanding of this
denial is that it
was informed by the respondent’s view as to who the owner was
of the tissue paper reels.
[52] As indicated above, the Intervening
Party was clearly the owner. As such, the basis for the
respondent’s submission fell away.
[53]
I find that the Intervening Party has direct
and substantial interest in the subject matters relevant
herein.
[21]
As such it should be granted leave to intervene.
CONCLUSION
[53] The respondent consistently submitted
that the respondent –
“…
has
bona fide
disposed
of the tissue paper reels under the circumstances.
”
[54] I have adequately demonstrated that the
above view of the respondent is not only misguided and untenable
when
the facts and circumstances are anything to go by, but also incorrect
and/or not borne out by the facts and/or evidence.
[55] The respondent did not have any right
to exercise any
lien
over the Intervening Party’s
property, worse so, that it actually knew of the latter’s claim
to ownership long before
it decided to sell them.
[56] In the circumstances it is the finding
of this Court that the Intervening Party has made out a case
for the
grant of the relief it seeks.
COSTS
[57] The parties are agreed that costs
should follow the suit in this application.
[58] I have independently assessed issues
herein and am satisfied that costs should indeed follow the
suit
herein.
ORDER
[59] The following order is made:
1.
The
Intervening Party, i.e. Hygienic Tissue Mills CC, is hereby granted
leave to intervene as an interested party in the application;
2.
A
declarator is hereby issued that the respondent was and is not
entitled to exercise any
lien
over the Intervening Party’s thirty (30) tissue paper reels
weighing 21 840 (twenty one thousand eight hundred and forty)
kilograms which were in the respondent’s possession at its
warehouse situate at 56 Rigger Road, Spartan, Kempton Park,
Ekurhuleni
District Municipality, Gauteng Province;
3.
The
Intervening Party has a right to claim the value of the tissue paper
reels as on the date same were sold from the respondent;
4.
The
respondent is ordered to pay the costs of this application.
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
THE INTERVENING PARTY
ADV D D NAIDO
INSTRUCTED
BY
LE ROUX VIVIER & ASSOCIATES
NORTHCLIFF EXT 4
JOHANNESBURG
TEL NO: 011 – 431 4117
FOR
THE RESPONDENT
ADV R GRUNDLINGH
INSTRUCTED
BY
VAN DER WESTHUIZEN ATTORNEYS
c/o DE WET VAN DER WATT &
JORDAAN
INC
CONSTANTIAKLOOF, ROODEPOORT
TEL NO: 012 – 348 0590
DATE
OF HEARING
29 APRIL 2014
DATE
OF JUDGMENT
6 MAY 2014
[1]
Main
application : Founding affidavit, paragraphs 30.2 to 30.4 at page 19
of the paginated record thereat.
[2]
See
Annexures “GH.8” and “GH.9” respectively as
well as paragraphs 30.5 and 30.6 of the applicant’s
founding
affidavit at pp 19-20 of paginated papers.
[3]
Respondent’s
answering affidavit in main application, para 5.3 at p 29 of the
paginated papers therein.
[4]
Annexure
“E.2” at p 19 of the Intervention Application (Annexure
to founding affidavit).
[5]
See
Annexures “GH.5” at p 42 and “GH.6” at p 46
of Main Application.
[6]
Neebe
v Registrar of Mining Rights
1902 TS 65
at 81; 85 and 86;
Lazarus
v Wessels
1903 TS 499
at 504;
Dadoo
Ltd v Krugersdorp Municipality
1920 AD 530
at 537.
[7]
Van
der Linden
1.7.1;
Grotius
2.3.9;
Voet
6.1.1.
[8]
Vorster
v Hodgson
(1902)
19 SC 493
at 495.
[9]
Shimuadi
v Shinungu
1990 (3) SA 344
(SWA) at 347;
Akbar
v Patel
1974 (4) SA 104
(T) at 109;
Ontwikkelingsraad,
Oos-Transvaal v Radebe and Others
1987 (1) SA 878
(T);
Jeena
v Minister of Lands
1955 (2) SA (380) (A);
Chetty
v Naido
1974 (3) SA 13 (A).
[10]
Mngadi
v Ntuli
1981 (3) SA 478
(D);
Wainwright
& Co v Trusteee Assigned Estate’s Hassan Mahomed
(1908) 29 WLR 619
at 626-627.
[11]
Möller
v SAR&H
1969 (3) SA 374
(N) at 381;
Botha
v Minister of Lands
1965 (1) SA 728
(A) at 741;
Priel
Diamond Mining Co v Berlin Mission Society
(1909) BAC 391.
[12]
Atkinson
Oats Motors Ltd v Trust Bank of Africa Ltd
1977 (3) SA 188
(W);
Alderson
and Flitton (Tzaneen) (Pty) Ltd v E.G. Duffy Spares (Pty) Lt5d
1975 (3) SA 41
(T) at 51;
Hall
& Sons Ltd v Kleinsmith
1963 (4) SA 320
(T) at 321;
Vulcan
Rubber Works (Pty) Ltd v SAR&H
1958 (3) SA 285
(A) at 289;
John
Bell & Co Ltd v Esselen
1954 (1) SA 147
(A) at 153;
Aspeling
NO v Joubert
1917 AD 167
at 171.
[13]
Michelsen
v Aaronson and Baikie
1914 TPD 158
;
Apostoliese
Geloofsending van SA (Maitland Gemeente) v Capes
1978 (4) SA 48 (C).
[14]
Barclays
Western Bank Ltd v Fourie
1979 (4) SA 157
(C) at 161;
Oakland
Nominees (Pty) Ltd v Gelvia Mining & Investment Co (Pty) Ltd
1976 (1) SA 441 (A).
[15]
Sonday
v Surrey Estate Modern Meta Market (Pty) Ltd
1983 (2) SA 521
(C);
Trust
Bank of Africa Ltd v Eksteen
1964
(3) SA 402
(A);
Pennefather
v Gokul
1960 (4) SA 42
(N);
Grosvenor
Motors (Potchefstroom) Ltd v Douglas
1956 (3) SA 420
(A) at 427.
[16]
1970
(1) SA 394
(A) at 409.
[17]
Supra
.
[18]
7 SC
87
at 92-3.
[19]
As
alluded to and quoted in paragraph [14] of this judgment.
[20]
Annexure
“GH.6” at folio/page 45 of paginated Intervention
Application papers.
[21]
Investec
Bank Ltd v Mutemeri
2010 (1) SA 265
(GSJ) at 278-9;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
(2009) (1) SACR 361.