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[2015] ZAGPJHC 55
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Group Five Construction (Pty) Limited and others v Member of the Executive Council for Public Transport Roads And Works Gauteng and Others (2009/31971) [2015] ZAGPJHC 55; [2015] 2 All SA 716 (GJ) ; 2015 (5) SA 26 (GJ) (13 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 2009/31971
DATE:
13 FEBRUARY 2015
In
the matter between:
GROUP FIVE
CONSTRUCTION (PTY)
LIMITED
...................................................
First
Applicant
GROUP
FIVE INTERNATIONAL
LIMITED
..........................................................
Second
Applicant
GROUP
FIVE CONSTRUCTION (UK)
LIMITED
...................................................
Third
Applicant
And
MEMBER
OF THE EXECUTIVE COUNCIL FOR
PUBLIC
TRANSPORT, ROADS AND WORKS
GAUTENG
.................................
First
Respondent
LOMBARD
INSURANCE COMPANY
LIMITED
..............................................
Second
Respondent
ILIMA
PROJECTS (PTY)
LIMITED
......................................................................
Third
Respondent
MOTHEO
CONSTRUCTION GROUP (PTY)
LIMITED
...................................
Fourth
Respondent
YIKUSASA
BUILDING CONTRACTORS (SA)
CC
...............................................
Fifth
Respondent
TTR
GENERAL BUILDING CONSTRUCTION (PTY)
LIMITED
......................................................................................................................
Sixth
Respondent
And
LOMBARD
INSURANCE COMPANY
LIMITED
...........................................................
Third
Party
Summary:
Construction
guarantee - must be clear and unequivocal letter of demand –
particulars of claim do not set out cancellation
of construction
contract - tacit acceptance of repudiation cannot constitute a
written notice of cancellation. Fraud or absence
of honesty
renders guarantee unenforceable – where grounds for
demand made/calling up of guarantee in conflict with
several
documents explaining that construction contract was not
cancelled for reasons set out in detail and merely
‘expired’
it is then not honest to claim , in the letter of demand, that
the construction contract had
been ‘cancelled due to default –
absent cancellation the grounds for demand were fraudulently
expressed – guarantee
there found to be extinguished.
JUDGMENT
SATCHWELL
J:
INTRODUCTION
1.
Appellants
(‘Group Five’) are the signatories to an indemnity in
favour of the second respondent (‘Lombard’)
who signed a
performance guarantee in favour of the first respondent (the MEC’).
2.
Group
Five’s case is that the guarantee has been extinguished or is
of no force and effect and that the second demand issued
by the MEC
does not conform with the guarantee requirements and is therefore
invalid and therefore that payment of the guarantee
cannot be
enforced against Lombard. Lombard also contends that it is not liable
under the guarantee since the demand is not in
conformity with the
guarantee.
3.
The
facts may be simply stated. In July 2006 the MEC concluded a
construction contract (‘the JV contract’) for the
construction of Zola Hospital with Ilima/Motheo/Yikusasa and TTR
Joint Venture (a partnership of which the partners were the third,
fourth, fifth and sixth respondents) (‘the JV’).
That contract required the JV to provide a variable construction
guarantee in favour of the MEC which was done by Lombard on 9
th
October 2006 on request of the JV.
4.
The
relevant clause of the issued guarantee C0521102 reads as
follows:
“
5. Subject
to the guarantors maximum liability… the Guarantor undertakes
to pay the Employer the Guaranteed sum of the full
outstanding
balance upon receipt of a first written demand from the Employer to
the Guarantor at the Guarantor’s domicilium
citandi et
executandi calling up this Construction Guarantee stating that:
5.1 The agreement
has been cancelled due to the Contractors default and that the
Construction Guarantee is called up in terms of
5.0 The
demand shall enclose a copy of the notice of cancellation.”
5.
By
19
th
January 2007, the JV partnership had dissolved. On
1
st
August 2008, the MEC signed a new construction contract for Zola
hospital with one of the erstwhile partners (‘Ilima’).
6.
On
18
th
December 2008 the MEC sent its first demand, to which was
attached a letter of cancellation from MEC to the JV dated
4
th
September 2008, calling up the guarantee. That letter of
demand was withdrawn.
7.
It
was followed by a further letter of demand to Lombard dated 30
th
September 2009 with which this application is concerned.
REFERRAL
TO TRIAL
8.
Group
Five brought an interlocutory application for this matter to be
referred to trial which was opposed.
9.
I
heard the application, did not grant the application and
gave full reasons therefore.
10.
The
application proceeded.
RECUSAL
11.
When
I was first allocated this matter and received the papers in the last
week of the 2014 court term, I emailed the attorneys
for the parties
advising that I had been the presiding judge in the trial matter of
Country
Cloud Trading CC v MEC Transport, Case No 2010/34662
which matter involved Ilima Projects (third respondents in this
application). At that stage I had not and did
not
read the papers since I was involved in other litigation but I
advised the parties that I could then see no reason to recuse
myself
from this application.
12.
Neither
party advised that they took the view that I should recuse myself.
That was confirmed and placed on record at the
commencement of the
hearing of this application. The parties were cognizant not
only of my having presided over that trial
but also that the matter
had gone on appeal to the Supreme Court of Appeal and the
Constitutional Court.
13.
However,
in the course of counsel’s argument on behalf of the MEC, I
realized that I had recollection of the earlier matter
and of certain
facts led in evidence. I felt obliged to inform of such
recollections
[1]
.
An adjournment led to an application for my recusal by the MEC.
14.
It
was submitted that there was a reasonable apprehension of bias on my
part because much would turn on interpretation of one or
more
documents by the then HOD of the DPTWR (Buthelezi) who had not given
evidence at the trial but whose behavior and documents
had featured
therein.
15.
I
declined to recuse myself. I did not give reasons
at the time.
16.
It
has never been our law that a judge who has presided in one matter
cannot preside in another matter involving some or all of
the same
parties or that a judge who has adjudicated on one dispute cannot
adjudicate on a similar dispute. As was said in
Phillips
v Hanau and Hoffa 1871 Supreme Court of the Cape of Good Hope
“This is a new action, and if judges are not to try an action
because in a previous action, where the same facts have come
before
them they have expressed a particular opinion, there will be an end
of many actions altogether.”
[2]
17.
There
would have to be something beyond the ordinary for a recusal by a
judge who is cognizant of her duty to sit in a case
[3]
.
That was not argued.
18.
The
main consideration which led to my decision not to recuse
myself is the difference between a trial and motion court
proceedings. In the current matter I am bound by that
which is on the record – all affidavits and documents are
set
out for everyone to see and read. There is no room
for assessment of witnesses, impressions,
personal
observations as there would be at a trial. I am not
at liberty to diverge from the written word as is
placed before
myself and all parties to this application.
Whatever I may think I recollect from the trial cannot
feature in my
judgment on the application unless it is placed before me and dealt
with by counsel in this application.
NON-CONFORMITY
OF DEMAND
19.
The
relevant portions of the demand of 30
th
September 2009 reads as follows:
“
Kindly
take note that the guarantee issued by you in terms of the
construction guarantee number C05/21102 (‘the guarantee’)
is hereby called up in terms of paragraph 5.0 of the guarantee.
The
Agreement (as defined in the guarantee) has been cancelled due to the
Contractor’s default. The notice of cancellation
is
contained in the summons in case number 31971/09, a copy of which is
annexed hereto.”
20.
Group
Five submitted that the guarantee specifically provides only for a
“first written demand” which precludes any
second or
subsequent demand. As was succinctly stated – the employer has
one bite of the cherry in a first and only demand.
The MEC submitted
that, since the first letter of demand was withdrawn as defective,
there was no earlier demand and that this
demand is therefore the
‘first’ demand. To which Group Five responded that
the guarantee does not refer to a
‘first compliant demand’
which would allow numerous non-compliant demands suggesting that the
furnishing of a demand
is a moving target.
21.
I
do not understand the need for insertion of the word ‘first’
in the guarantee but accept that we must attempt to give
all words a
purposive meaning. However, I do not need to decide this
case on this point and leave the issue over for
decision on another
occasion.
No
Notice of Cancellation
22.
It
is now common cause that no notice of cancellation was attached to
this letter of demand when it was served by hand. There was
no
summons attached to the letter of demand as claimed. It is also
common cause that, in any event, the
case number to
which reference was made in the letter of demand does not refer to
the litigation between the MEC and the JV.
23.
Group
Five and Lombard both argued that this purported notice
of cancellation fails to meet the enunciated tests
for compliance
[4]
as set out by the Supreme Court of Appeal in
Compass
Insurance Company Ltd v Hospitality Hotel Developments (Pty) Ltd
(756/10)
“
It
should not be incumbent on the guarantor to ascertain the truth of
the assertion made by the beneficiary that the subcontractor
had been
placed under provisional liquidation. That is why Compass
Insurance required a copy of the order itself. Similarly,
the
guarantor should not have to establish whether a contract has in fact
been cancelled. That is why a copy of the notice
of
cancellation, if there has in fact been cancellation is required to
be attached to the demand. The very purpose of a performance
basis is that the guarantor has an independent, autonomous contract
with the beneficiary and that the contractual arrangements
with the
beneficiary and other parties are of no consequence to the
guarantor. The guarantee in this case is an independent
contract that must be fulfilled on its terms.” [para
14-15]
24.
Lewis
JA, held that ‘compliance’ with the ‘absolutely
clear’ conditions of the guarantee was necessary.
In the case before her, there was no compliance because firstly, the
guarantor can only have recourse to the terms of the guarantee
in
order to ascertain whether or not it is liable (and for how much) and
secondly, it is not incumbent on the guarantor to conduct
its own
investigation in order to determine whether or not and to what extent
it is liable to the beneficiary. Absent the attached
liquidation
order (equivalent to the written notice of cancellation in this case)
there was no compliance.
25.
I
am in no doubt that the liability of Lombard and the extent thereof
must appear clearly from the demand made on it.
26.
The
MEC attempted to rectify this default some two weeks later.
On 13
th
October 2009, a summons (with a different case number)
was delivered to Lombard.
27.
The
MEC takes the view that this delivery rendered the demand
complete and that the demand now complied with the requirements
of
clause 5 because Lombard was now in receipt of the summons containing
or consisting of the notice of cancellation or confirmation
thereof.
28.
I
have my doubts whether or not a demand composed of dribs and drabs,
ebbing and flowing like the tides could possibly meet the
requirements for compliance. After all, when would either
the Employer or the Guarantor be permitted to conclude that
the
demand was now complete and compliant. However, I need not decide
that point.
The
Summons and Particulars of 3
rd
November 2008
29.
What
is questionable is whether the notice of cancellation is confirmed in
or consists in the delivered summons.
30.
Firstly,
I note the extent of time and energy spent at the hearing of this
application debating the content and meaning of this
summons and
particulars of claim. If the cancellation was easily apparent
therefrom, this would not have been necessary.
The particulars of
claim hardly furnish a clear and unequivocal notice of cancellation.
31.
Secondly,
in those particulars the MEC pleaded that the JV partnership had
become dissolved and had no intention of completing the
building
works. In the result the MEC “tacitly accepted the repudiation
of the agreement”
[5]
by
entering into a new construction contract with another contractor.
32.
It
is clear that the guarantee requires a written notice of cancellation
since the letter of demand “shall enclose a copy”
thereof. I fail to see how and where a “tacit acceptance”
can constitute a written notice of cancellation.
The
trigger to compliance of the guarantee must be a written document.
Lombard cannot be expected to investigate conduct to see
whether or
not there was an oral cancellation or whether or not something else
which constituted cancellation.
33.
Thirdly,
the MEC argued that the provisions of
paragraph 19
[6]
of the
particular of claim which pleads that the MEC “became
entitled to rescind both the contract and the subsequent
contract
alternatively [the MEC} hereby elects to rescind the contract”
are not limited only to the subsequent Ilima contract
and the
complaints about tax certificates as set out in the alternate
cause of action set out in paragraphs 16, 17
and 18. With
this I cannot agree.
a.
First,
paragraph 19 is the logical culmination to the alternate cause of
action – without paragraph 19 clause 16, 17 and 18
are simply
left hanging. Fortunately, paragraph 19 completes this
alternate cause of action by concluding with the words
“Accordingly”
which indicates that paragraph 19 flows from 16, 17 and 18.
b.
Second,
paragraph 16 refers to tax clearance certificates prior to
both
the first and subsequent building contracts and paragraph 19
concludes that the MEC became entitled to rescind
both
contracts. Paragraph 19 therefore refers to the tax
certificate issue.
c.
Third,
paragraph 19 states that rescission of
‘the’
i.e. only one) contract is contained in Annexure G to the particulars
of claim. Annexure G dated 30
th
October 2008
[7]
states that the first contract “officially expired”
on 10
th
May 2008 and that the second building contract of 1
st
August 2008 is ‘null and void’ by reason of
misrepresentations as to the tax clearance certificate.
Annexure
G therefore provides no assistance in delving for a
“cancellation due to default” in
respect
of the first JV contract.
d.
Fourth,
the affidavit of Martins
[8]
confirms that the first JV contract was repudiated which repudiation
was accepted. He makes no mention of any written
cancellation. He specifically confirms that any
cancellation was in respect of the second building contract.
34.
Counsel
for the MEC argued that, where repudiation is made and orally
accepted, subsequent notification confirming cancellation
would be
acceptable. This summons was therefore written communication of
the cancellation which had taken place by conduct.
When I
enquired as to the location of such subsequent notification
confirming cancellation I was referred to the particulars
of claim
already discussed. Once of the difficulties with this
argument is that the repudiation is claimed to have
been tacitly
accepted on 4
th
August 2008 when the second contract was concluded. The
first contract therefore terminated on that date. The
summons
was issued out of court on the 3
rd
November 2008 and cannot therefore cancel an agreement which ceased
to exist some months prior thereto.
[9]
35.
The
summons indicates no more than a tacit acceptance of repudiation on
4
th
August 2008 when the second contract was concluded. Since paragraph
19 does not apply to the first JV contract, it cannot contain
within
itself a confirmation of cancellation. In any event, this
summons could hardly constitute cancellation of a contract
which no
longer exists. Indeed, the summons could not constitute confirmation
of an historical event because the guarantee requires
the notice of
cancellation itself
[10]
.
Finally, this summons was withdrawn
[11]
- the entire action then being withdrawn- pending mediation and
therefore could not constitute a notice of cancellation at
time of
the letter of demand in September 2009.
36.
The
summons and particulars of claim do not meet the requirements for a
‘clear and unequivocal’ notice of intention
to cancel or
notice of termination
[12]
.
The first demand was indeed “a futile, still-born
communication’ and the second demand ‘must share the
same
fate’
[13]
.
37.
It
follows, that I cannot accept that the summons and particulars of
claim contains within itself or constitutes a notice of cancellation
or confirmation of cancellation in respect of the 2006 JV building
contract which is the subject matter of this guarantee.
Fraud
38.
The
guarantee requires that the building agreement has been cancelled due
to the default of the JV contractor. The letter
of demand
stated that the Agreement had been cancelled due to the Contractor’s
default.
39.
In
its Notice of Motion, Group Five has asked for orders that the
“so-called ‘second demand’ is further invalid
and
unenforceable on grounds of fraud”
[14]
and that the “Guarantee …dated 9 October 2006… is
extinguished and/or of no force and effect”
[15]
.
40.
The
averments made by Group Five are that any demand made by the MEC
which purport to be on the grounds of cancellation due to the
contractors default would be “unjustified, unconscionable and
could be classified as fraudulent”
[16]
.
Group Five allege ‘fraud’ on the basis that the MEC
presented a demand in full knowledge that the
contract had not been
called due to the default of the JV contractor.
41.
More
or less contemporaneous documents explicitly disavow any
intention to cancel or actual cancellation of the
first
JV contract which is the subject matter of the guarantee:
a.
On
21
st
April 2008, the construction project manager appointed by
the Department of Public Traansport, Roads and Works (‘DPTRW’),
Tsiya Developers (Pty) Ltd recorded that the
“recommendation of the CPM to terminate the contract
in terms
of the JBCC requirements were not approved by the
Department”.
[17]
b.
In
a letter of 4
th
September 2008 to the second building
contract contractor, Ilima from the HOD of DPTRW advising
that the second building contract is ‘null and void’, the
HOD records that the first JV contract “officially
expired”
[18]
.
c.
A
memorandum written by the then HOD Gauteng
DPTRW to MEC Gauteng DPTRW, the HOD
and MEC
Gauteng Treasury , HOD and MEC Gauteng Department
of Health on 24
th
June 2009 sets out in detail that “the possibility
of cancelling the 2006 contract was mooted…. However,
the
Department’s desire to mentor Ilima [the JV} as a black
contractor company and the increased costs to secure another
contractor were two of the factors which militated against this
approach. Thus, subsequent to the expiry of the
original contract in May 2008, the DPTRW engaged in further
contractual negotiations….”
[19]
.
d.
A
further undated memorandum to the Gauteng Department of Health,
Gauteng Treasury and the MEC of DPTRW by the HOD repeats that
the
possibility of cancellation of the JV contract was considered but
decided against and that instead the contract was simply
allowed to
expire.
[20]
e.
An
undated memorandum
[21]
from
the HOD of DPTRW to the office of the MEC Department of
Infrastructure Development was written subsequent to the cancellation
of the second contract with Ilima. That memorandum
refers to the ‘first Ilima contract’ and the ‘second
Ilima contract’. It repeats that
consideration had been given to cancellation of the first JV building
contract but that various factors militated against such decision and
action. It repeats that there was “expiry
of the
original contract”. The memorandum reports on mitigation of
financial losses incurred by the Department.
It is
stated that, in respect of the second Ilima contract, “the
Department acted decisively and cancelled the contract on
4 September
2008”. Insofar as claiming in terms of the
reconstruction guarantee is concerned, the following
is stated:
“
Furthermore,
it is the Department’s intention to obtain a legal opinion from
senior counsel on the prospects of success if
the Department decides
to litigate against the insurer to compel the payment of the
guaranteed sum. Such an opinion is required
in light of the
fact that the Department did not cancel the contract on the basis of
Ilima’s non-performance, which is prerequisite
before
guarantees can be claimed. Furthermore, it appears that the insurer
may contest that the Department did not follow certain
procedures
that are essential in calling up the guarantee as set out in the
guarantee document and as per the requirements of the
JBCC contract”.
42.
I
am in agreement with counsel for the MEC that the latest
memorandum, contrary to argument by Group Five, does not
pertain to the first building contract, the JV contract. The
memorandum refers on its first page to it’s “subject’
as the “appointment of Tau Pride and Maziya Construction for
completion of the Zola Hospital Project” and the content
is
clearly directed to resolution of the second Ilima contract.
43.
However,
these documents all repeat that the first JV contract was not
cancelled. The MEC of
DPTRW did not challenge the content
of these documents in this application. Nor did the other
recipients thereof at Treasury
or Department of Health. It does
not assist counsel for the MEC to submit that the writer of these
documents was not a legally
trained person because that is not
evidence before this court. In any event,
these are not
legal constructs. The writer
specifically explains at least two occasions that the contract
was not cancelled
for reasons which were spelt out - delays
occasioned by public tender processes, increased costs in preparing
tender documentation
and the desire of the Department to mentor and
uplift” the Ilima JV as a ‘black’
construction contractor.
44.
The
first JV contract was not cancelled. What is meant by
writing that this first JV contract ‘expired’
is not
exactly known. It may be arrival of a practical completion
date, death by inactivity, reaching
a date
specified in the original building contract or general exhaustion.
It does not matter. We cannot
speculate
thereon.
45.
However,
the documents contrapose cancellation as against expiry. The two are
not viewed as the same. There was no cancellation.
There was no
cancellation due to default.
46.
The
letter of demand is dated 30
th
September 2009. By that date, the Contract Project Manager had
written to the MEC recording that it’s recommendations to
cancel had not been followed. At least two memoranda had been
written by the HOD explaining why the contract had not been
cancelled. The MEC has not pleaded that these documents were mislaid
or unknown to the MEC. In fact, the MEC has not
furnished
any affidavit dealing with this issue. It is difficult to conclude
other than that the letter of demand contained untruths
which were
known to be untruths at the time it was written.
47.
Counsel
for the MEC valiantly attempted to distinguish between default,
cancellation and the notification. He argued
that there
was no fraud: there was indeed default on the part of the JV,
there was repudiation, there was a breach and it
was therefore not
fraudulent to say that there was default and nor was it fraudulent
to say that there was cancellation due
to default.
48.
I
appreciate that the MEC always took the view that there was non
performance by the JV and that this was repudiation or default
or
breach. But the MEC never took the view that the MEC had
cancelled the JV contract. The default did not, in the mind of
the
MEC and the HOD result in cancellation. To then claim, in the letter
of demand that there had been cancellation due to non
performance is
more than disingenuous - it was known to be untrue.
49.
I
am in agreement with counsel for Group Five that the version of
cancellation due to default is an artificial construct long after
the
event.
50.
Such
a situation clearly accords with fraud as understood in English law
in the context of letters-of-credit and guarantees. It
is, in this
case, seriously arguable, that “on the material available, the
only realistic inference is that …. [the
beneficiary] could
not honestly have believed in the validity of its demands on
the performance bonds”
[22]
.
Absence of good faith as ground for declining enforcement of a
guarantee has received support
from the Supreme Court of Appeal
in the minority judgment of Cloete JA in
Dormell
Properties 282 CC v Renasa Insurance Company Ltd and Others
2011 (1)
SA 70
(SCA),
as
also in
Guardrisk
Insurance Company Ltd v Kentz (Pty) Ltd
[2014] 1 All SA 307
(SCA),
Scatec Solar SA 163 (Pty) Ltd and another v Terrafix Suedafrika (Pty)
Ltd
[2014] ZAWCHC 24
, Cargill International SA and
Another v Bangladesh Sugar and Food Industries Corp
[1996] 4 All ER
563
(QBD).
51.
Accordingly,
I am satisfied that the second demand incorporates a fraud and that
the guarantee should be set aside.
COSTS
52.
There
was a postponement in February 2012 occasioned by Group Five’s
application (which was opposed) to introduce a supplementary
affidavit. Costs of the application and postponement were reserved.
53.
In
the normal course, I would have ordered that Group Five pay wasted
costs. However, where this entire series of litigation
has been occasioned by a letter of demand upon a guarantee in
circumstances as are set out above, I take the view that the court
should mark its disapproval of the conduct of the MEC .
54.
I
do not intend to award costs against Group Five and in favour of the
MEC in respect of that opposed application and resulting
postponement. That is a mark of my disapproval of lack of
honesty, absence of good faith, fraud on the part of the
MEC.
55.
Counsel
for the MEC submitted that the MEC was justified until November 2011
when the only order sought was that the guarantee be
extinguished and
declared of no force and effect. That proposal might have had merit
if I had not taken the view I have in respect
of fraud and the
guarantee.
ORDER
56.
In
the result an Order is made as follows:
a.
Guarantee
No. C05/21102 dated 9 October 2006, issued by the Second Respondent
is extinguished and of no force and effect, and/or
unenforceable and
that the Second Respondent is released from its obligations
thereunder and that the Department of Public Transport,
Roads and
Works Gauteng, represented by the First Respondent must return the
original guarantee to the Second Respondent; and/or
b.
The
so-called “
second
demand”
dated 30 September 2009, a copy of which appears at page 269 of the
Papers, does not conform to the requirements of the guarantee
in
issue and is invalid and unenforceable; and
c.
The
so-called “
second
demand”
is further invalid and enforceable on grounds of fraud.
d.
The
First Respondent is ordered to pay the Applicants’ costs
including those consequent upon the employment of two counsel,
one
being Senior Counsel.
e.
The
First Respondent is ordered to pay the costs of Second
Respondent/Third Party including the costs consequent upon the
employment
of two counsel.
DATED
AT JOHANNESBURG 13
th
FEBRUARY 2015
SATCHWELL
J
Counsel
for Applicant: Adv. G D Harpur SC with him Adv. C F Hugo
Counsel
for First Respondent: Adv. SC Vivian and with him Adv B Morris
Counsel
for Third Party: Adv. C J McAslin with him P G Louw
Attorneys
for Applicant: Norton Rose Fulbright South Africa
Attorneys
for First Respondent: Mncedisi Ndlovu & Sedumedi
Attorneys
for Second Respondent and Third Party: Frese Moll & Partners
Dates
of hearing of the Motion: 28-29
th
January 2015
Date
of judgment: 13
th
February 2015
[1]
See the actions of Van Dijkhorst
AJ in
General Council
of the Bar of South Africa v Geach and Others 2013(2) SA 52
at
par 94-95.
[2]
See also Rex v Cah Koo
1919
TPD 311
; General Council of the Bar of South Africa v Geach
and Others 2013 (2) SA 52 (SCA);
Erasmus RS 45 2014 Act-A1-p14A.
[3]
See
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
see
Geach
supra.
[4]
Group Five argued for the
so-called doctrine of strict compliance as set out in the law
relating to letters of credit.
In South Africa, the SCA
has refrained from deciding whether or not this doctrine of strict
compliance is equally applicable
to demand guarantees.
[5]
See p 675 and 1456 of Record.
[6]
See pages 677
onwards and 1458 of Record.
[7]
At page 1525 of Record.
[8]
At pages 246 and 263 of Record.
[9]
Culverwell and Another v
Brown
1990 (1) SA 7
(AD)
at
17B-C.
[10]
In
Compass
supra the actual Order of Liquidation was required to be attached.
[11]
See the Martins affidavit at p
251 of Record.
[12]
See the discussion at page 374
onwards on the difficulties of conditional demands and
notices framed in the
alternative in
Kragga
Kamma Estates Cc and another v Flanagan 1995(2) SA 367 (AD).
[13]
To paraphrase the court in
Kragga Kamma
supra at page 375
B-F.
[14]
Amended Prayer 1.iii
[15]
Prayer 1.i
[16]
Para 125 of Founding Affidavit.
[17]
Page 543 of Record.
[18]
Page 76 and 1531of Record.
[19]
Page 751 and 1250 of
Record.
[20]
Page 1262 onwards of Record.
[21]
Pages 777 to 801 of Record
.
[22]
See
United
Trading Corporation SA v Allied Arab Bank [1985] 2 Lloyd’s Rep
554 (CA) 561.