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[2015] ZAGPJHC 271
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Occupiers of [E...] & [8....] [B.....] v Frederick N.O and Another (2013/24254) [2015] ZAGPJHC 271 (12 November 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/24254
DATE:
12 NOVEMBER 2015
In
the matter between:
THE
OCCUPIERS OF ERVEN [8....] & [8.....]
[B......]
.................................................................
Applicant
And
DE
WET, CHRISTIAAN FREDERICK
N.O
............................................................
First
Respondent
PARBHOO,
ROYNATH
N.O
..................................................................................
Second
Respondent
JUDGMENT
ADAMS
AJ:
[1].
This is an application to rescind and set
aside an eviction order granted against the applicants by this court
(Khumalo AJ, as she
then was) on the 10
th
September 2013. The order for the eviction of the applicants was
granted by agreement between the parties, which fact is now disputed
by the applicants and is an issue central to this application.
[2].
The application was launched on the 7
th
November 2013.
[3].
The applicants are a group of individuals
who presently unlawfully occupy a block of flats described as [E…
…]. And
[8….. B….] Township, Registration
Division I.R., Gauteng Province, known as
Kiribilly
and is situated at the corner of [S…..] and [F….]
Roads, [B…..], Johannesburg
(‘the
property’).
I will at times refer
to these individuals as the ‘
occupiers’
of the property.
the
facts
[4].
The respondents are the joint liquidators
of M L Rocchi Investments CC (in liquidation), the registered owner
of the property since
1985. The property has since been sold to a Mr
Calvin Maseko, who deposed to the answering affidavit on behalf of
the respondents.
[5].
On the 23
rd
August 2013, pursuant to a court order and in compliance with the
provisions of the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act 19 of 1998
(‘the
PIE Act’),
the respondents caused
a notice in terms of section 4(2) of the PIE Act to be served on the
applicants via the offices of the Sheriff
of the Court. The said
notice was served on the applicants as directed by the letter of the
Order of this Court (Mayat J), dated
the 21
st
August 2013.
[6].
The sheriff had also served on the same
day, that is the 23
rd
August 2013, the PIE Act section 4(2) notice on the City of
Johannesburg as a third party.
[7].
On the 10
th
September 2013, the date on which the main application for the
eviction of the applicants had been set down for hearing, four of
the
representatives of the applicants attended court and negotiated a
settlement of the matter ostensibly on behalf of the majority
of the
occupiers of the property. As I indicated above, the applicants are
now disputing that the persons who attended court on
the said date
had a mandate to settle the matter on their behalf. I will return to
this aspect of the matter later on in my judgment.
[8].
After satisfying herself that those present
at court on behalf of the applicants were in agreement with the terms
of the draft order,
Khumalo AJ made same an Order of the Court. The
indications are that the Draft Order was only made an Order of Court
after a fair
bit of negotiation between the legal representatives of
the respondents and those representatives of the applicants. For
example,
the date on which the applicants were required to vacate the
premises was changed from the 31
st
October 2013 to the 15
th
November 2013. Also, at the insistence of the representatives of the
applicants, a prayer was included which provided that some
of the
applicants would have first option to enter into tenancy in respect
of the property once refurbished. On the probabilities,
these
provisions could only have been on the insistence of the applicants
or their representatives.
[9].
Subsequently, the applicants applied for
Leave to Appeal the Judgment of this Court dated the 10
th
September 2013. This application was refused on the 18
th
February 2014. Thereafter, the applicants petitioned the Supreme
Court of Appeal for Leave to Appeal, which application was dismissed
on the 30
th
July 2014 on the grounds that the matter is not appealable.
[10].
In the Founding Affidavit, the applicants
make much of the fact that, according to them, service of the
relevant processes was wholly
inadequate. They say that the eviction
order was wrongly granted because there was no agreement or consent
at all to have the draft
order made an Order of Court. It is claimed
that many of the occupiers had no idea that the eviction application
was being heard.
[11].
In my view, the alleged defective service
on the applicants of the Notice in terms of section 4(2) of the PIE
Act and Notice of
Motion is irrelevant. On their own version, service
of these notices came to the attention of the applicants, who, by all
accounts,
understood the exigency of the processes so much so that
they resolved to delegate four occupiers to attend court on their
behalf
on the 10
th
September 2013. They were furthermore enlightened by Mr Maseko at a
meeting on the 31
st
August 2013 at the property. Therefore, the purpose of the notice in
terms of section 4(2) of the PIE Act had been achieved and
there
cannot be any suggestion of prejudice on the part of the applicants
as a result of the alleged defective service. In that
regard, see:
Unlawful Occupiers, School Site v City
of Johannesburg,
2005 (4) SA 199
(SCA).
[12].
All the same, by the time this application
for the rescission of the court order was launched during November
2013, most, if not
all, of the occupiers of the property were very
much aware of the eviction proceedings and they were in fact
cognizant that an
eviction order had been granted on the 10
th
September 2013.
[13].
In the answering affidavit Mr Maseko has
this to say:
‘
It
is extraordinary that in a building such as this, that not everybody
knew about the eviction application. It defies belief that
this is
not something serious and spoken about between all the occupiers. The
only way that this version could have had any truthfulness
is if the
24 people had committed to oath and presented a version to this court
as to why they did not know about the application,
which goes beyond
a frivolous attack on the returns of service’.
[14].
I agree with these contentions. I find it
hard to believe that there would not have been a full scale
discussion amongst all of
the occupiers of the pending eviction
proceedings, especially if regard is had to the fact that the Sheriff
had affixed at prominent
spots around the building the notice of
motion and the other documentation.
[15].
The respondents state that they served the
application on the occupiers in terms of the Court Order on 21
st
August 2013. According to the Sheriff’s return, the application
was served as follows:
“
RETURN
OF SERVICE – NOTICE IN TERMS OF SECTION 4(2) OF THE PIE ACT,
1998:
On
this 23
rd
day of August 2013 at 18:02 I properly served
this NOTICE IN TERMS OF THE PIE ACT, 1998, by affixing a copy thereof
to the residence
of the UNLAWFUL OCCUPIERS OF ERVEN 87 & 88
BEREA, Respondent, at KIRIBILLY, CNR SOPER AND FIFE ROADS, BEREA,
JOHANNESBURG,
which is kept locked and thus prevents alternative
service. [Rule 4(1)(a)(v)].
Note:
(1). By affixing a copy of the Notices and all further processes
including an Order of this Honourable Court herein, to all
entrances
to the property; (2). By affixing a copy of the Notices and all
further processes including any Order of this Honourable
Court
herein, to the door of each and every room, partition or structure
within the property that appears to be occupied, alternatively
to
slide copies of the Notices including any Order of this Honourable
Court under the door of the such room, partition or structure;
and
(3). By assigning a number to every room, partition or structure
within the property that appears to be occupied; and (4).
By
attempting to establish the name or names of the occupier or
occupiers of each and every room, partition or structure as
identified
in paragraph (3) above that appears to be occupied and who
are prepared to identify themselves; and refused to identify
themselves;
(5). By authorising and directing to explain to any
person present at the property on the occasion of service of these
documents,
the nature and import of the relief sought by the
Applicant, in English, Sotho and Zulu”.
[16].
The main eviction application was then
enrolled for hearing on the 10
th
September 2013. On the aforementioned date Khumalo AJ, after
satisfying herself that the parties have settled the application,
granted an order for the eviction of the applicants by agreement
between the parties.
More specifically, in
terms of the Court Order, t
he occupiers of
the property were directed to vacate the property on or before the
15
th
November 2013.
[17].
During September 2013, the applicants
consulted their present attorneys of record, the Seri – SA Law
Clinic, who have represented
them in these and the other legal
proceedings since then. The import of this detail relates to the fact
that the applicants would,
since during September 2013, have been
made aware of their rights in relation to the eviction proceedings.
They would no doubt
have been advised on the provisions of the PIE
Act and the related legislation. Importantly, they would have been
advised of their
constitutional right to emergency housing in the
event of them being rendered homeless as a result of being evicted
from the property.
Importantly, not a single approach was made by the
applicants and / or their legal representatives to the City of
Johannesburg
with a view to placing the Council on terms to provide
them with alternative accommodation in the event of them being
evicted.
Instead, the approach of the applicants was to expand all of
their efforts and energy in getting the eviction order set aside
notwithstanding
the fact they are, by all accounts, in unlawful
occupation of the premises. This, I believe, is an aspect which goes
to the
bona fides
of
the application for rescission.
[18].
On the 7
th
November 2013, the present application was launched by the Seri –
SA Law Clinic on behalf of the applicants. The application
is based
on the premise that the eviction order was wrongly granted in that
there was no agreement or consent by the applicants
to the said
order. It is alleged in the Founding Affidavit that the applicants
who were aware of the eviction application elected
four occupiers to
attend court on their behalf and that a Mr Ngubane, who is not a
legal practitioner, would represent them at
Court. Mr Ngubane himself
denies this claim and alleges that the four representatives were in
fact at court to speak on behalf
of the applicants and he was there
merely as an observer to assist and facilitate if and when necessary.
[19].
The applicants furthermore state that the
four occupiers who were sent to attend court were mandated to obtain
a postponement of
the matter and that they were not authorised to
agree to an eviction.
[20].
In the end and after having heard from the
parties before her, Khumalo AJ granted the eviction order by
agreement between the parties.
[21].
In the present application for rescission,
all of the occupiers of the building are before the court as
applicants. As far back
as the 29
th
July 2013, most of the applicants met with Mr Ngubane and the
applicants handed to him a copy of the eviction application. He then
undertook to look into the matter. Most of the applicants had, by
implication, by then had sight of the application irrespective
of
whether or not there had been proper service on them. In other words,
by the 29
th
July 2013, notice of service of the eviction application had come to
the attention of the applicants.
the
application for rescission
[22].
The application for rescission is brought
in terms of the provisions of Rule 42(1) of the Uniform Rules of
Court and / or in terms
of the Common Law.
[23].
The applicants rely on the common law as
well as Uniform Rule 42(1) for their claim for rescission. It is
trite that in terms of
the common law, an applicant, in order to be
successful in an application for rescission, is required to show good
cause. Generally,
an applicant will establish good cause by giving a
reasonable explanation for his or her default and by showing that he
or she
has a
bona fide
defence to the plaintiff's claim which prima facie has some prospect
of success. In terms of Rule 42(1)(a), the Court may rescind
or vary
an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby.
[24].
Ms Hlengiwe Gloria Mhlambo, one of the
occupiers of the property, deposed to an affidavit in support of the
rescission application
in which she sets out her and the remaining
applicants’’ personal circumstances and explained what
transpired at court
on the 10
th
September 2013. She is one of the occupiers who, in fact, attended
court on the aforementioned date on which Khumalo AJ granted
the
eviction order.
[25].
She is a 40 year old vendor, who sells
cigarettes and sweets for a living. She lives in room 63 at the
property with her daughter
and son. She has been living at the
property since 2003. She alleges that she and her children do not
have alternative accommodation
and would be rendered homeless without
the provision of alternative accommodation.
[26].
According to Ms Mhlambo, approximately 184
people reside on the property, consisting of 47 women, 114 men and 23
children, most
of whom have been living on the property for a
considerable number of years. She described the occupiers as poor and
vulnerable.
Nowhere in her Founding Affidavit does she make mention
that she or any of the other occupiers searched for alternative
accommodation
at any stage.
[27].
As regards the proceedings at court on the
10
th
September 2013, her version is that they, the four representatives of
the occupiers, were not involved in any discussions with
the legal
representatives of the respondents. They were also blissfully unaware
of what was happening and they did not even realise
that an eviction
order was granted against them. I find this hard to believe. This is
in stark contrast to what is said by Mr Ngubane,
who accompanied them
to court on the day. He says in a confirmatory affidavit that there
were discussions between them and the
respondent’s attorney and
they were able, at some stage, to negotiate a later date on which
they would have to vacate the
premises.
[28].
It is apparent from the facts that the
applicants, or at least the majority, had agreed to the Draft Order
which was made an Order
of Court. There was no justus error and for
this reason alone the application for rescission should fail.
[29].
The applicants relied on two grounds in
support of their assertion that they have a
bona
fide
defence. First, they contended
that in terms of s 4(6) and 4(7) of the PIE Act, a court can only
grant an eviction order once it
is satisfied that it is just and
equitable to do so. It was contended that the court ought to have
been alive to the fact that
the occupiers of the property were poor
and faced the very real prospect of homelessness if evicted. Thus, so
it was submitted,
they were entitled to protection in terms of s
26(1) and (3) of the Constitution. Second, it was argued that where
the grant of
an order of eviction may result in the occupiers of the
property being homeless, the municipality was a necessary party to
the
proceedings and the failure to join the municipality rendered the
grant of the eviction order premature.
[30].
Section 26 of the Constitution, which
entrenches the right to housing, provides that:
‘
(1)
Everyone has the right to have access to adequate
housing.
(2)
The state must take reasonable legislative and
other measures, within its available resources, to achieve
the
progressive realisation of this right.
(3)
No one may be evicted from their home, or have
their home demolished, without an order of court made after
considering all the relevant circumstances. No legislation may permit
arbitrary evictions.’
[31].
In
Government
of the Republic of South Africa & others v Grootboom & others
2000 (11) BCLR 1169
(CC), the
Constitutional Court held that a housing programme could only be
reasonable if it provided emergency shelter to people
in desperate
need who, for whatever reason, faced the prospect of homelessness.
The right to be protected from arbitrary eviction,
as contained in s
26(3) of the Constitution, is given effect to through various
provisions of the PIE Act. One of the primary objectives
of the PIE
Act is to ensure that evictions take place in a manner consistent
with the values of the Constitution. The PIE Act prescribes
the
requirements which must be satisfied before a court may grant an
order of eviction. Of relevance to this application are ss
4(6) and
4(7) which provide that a court may only grant an eviction order if
it is just and equitable to do so, after considering
all the relevant
circumstances.
[32].
These sections read:
‘
4(6)
If an unlawful occupier has occupied the land in question for less
than six months at the time when the proceedings are
initiated, a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering
all the relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed
by women.
(7)
If an unlawful occupier has occupied the land in
question for more than six months at the time when the proceedings
are initiated, a court may grant an order for eviction if it is of
the opinion that it is just and equitable to do so, after considering
all the relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether
land has
been made available or can reasonably be made available by a
municipality or other organ of state or another land owner
for the
relocation of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons and
households
headed by women.’
[33].
In terms of s 4(6) and 4(7), a court is
obliged to consider the rights and needs of the elderly, children,
disabled persons and
households headed by women. These are
specifically listed as relevant factors to which a court must have
regard. In terms of s
4(7), the court is also obliged to consider the
availability of alternative land for the relocation of an occupier.
Where information
relating to these matters is not placed before the
court, the court will not be in a position to consider these
circumstances in
determining whether the eviction was just and
equitable.
[34].
Our courts have recognised that there is a
duty on them, in eviction matters, to consider all relevant
circumstances and that they
are not in a position to discharge this
duty where information relating to, inter alia, the rights and needs
of the elderly, children,
disabled persons and households headed by
women, has not been placed before them.
[35].
This constitutional approach was explained
by Sachs J in
Port Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC):
‘
The
obligation on the court is to “have regard to” the
circumstances, that is, to give them due weight in making its
judgment as to what is just and equitable. The court cannot fulfil
its responsibilities in this respect if it does not have the
requisite information at its disposal. It needs to be fully apprised
of the circumstances before it can have regard to them. It
follows
that, although it is incumbent on the interested parties to make all
relevant information available, technical questions
relating to onus
of proof should not play an unduly significant role in its enquiry .
. . Both the language of the section
and the purpose of the
statute require the court to ensure that it is fully informed before
undertaking the onerous and delicate
task entrusted to it. In
securing the necessary information, the court would therefore be
entitled to go beyond the facts established
in the papers before it.
Indeed, when the evidence submitted by the parties leaves important
questions of fact obscure, contested
or uncertain, the court might be
obliged to procure ways of establishing the true state of affairs, so
as to enable it properly
to “have regard” to relevant
circumstances.’
[36].
The PIE Act imposed a new role on the
courts in that they are required to hold the balance between illegal
eviction and unlawful
occupation and ensure that justice and equity
prevail in relation to all concerned. Sachs J, in
Port
Elizabeth Municipality v Various Occupiers,
[2004] ZACC 7
;
2005 (1) SA 217
(CC), described this new role of the court as
‘
complex, and constitutionally
ordained’,
and one which required
a court ‘
to go beyond its normal
functions, and to engage in active judicial management’
.
[37].
A number of courts have, in relation to the
provisions of s 4 of PIE, recognised the duty of the court to act
proactively, as well
as its powers to investigate, call for further
evidence or make special protective orders.
[38].
In terms of s 4(7), a court is obliged, in
addition to the circumstances listed in s 4(6), namely, the rights
and needs of the elderly,
children, disabled persons and households
headed by women, to give due weight to the availability of
alternative land. There is
nothing to suggest that in an enquiry in
terms of s 4(6), a court is restricted to the circumstances listed in
that section. The
court must have regard to all relevant
circumstances. The circumstances identified are peremptory but not
exhaustive. The court
may, in appropriate cases, have regard to the
availability of alternative land. However, where the availability of
alternative
land is relevant, then it is obligatory for the court to
have regard to it.
[39].
The difficulty,
in
casu
, is the applicants were
represented at court when the eviction order was granted. In these
circumstances, they would have been
fully entitled to canvass all the
relevant circumstances and to bring same to the attention of the
Court. I am of the view that,
on this particular aspect of the
matter, Khumalo AJ had properly discharged her statutory obligations.
Therefore, this ‘
defence
’
does not avail itself to the applicants.
[40].
In any event, I now have before me any and
/ or all the information which a court would possibly require in
order to rule on whether
it would be just and equitable to evict the
applicants, including all of the personal details of the occupiers of
property. I am
of the view that even if Khumalo AJ was apprised of
all of these circumstances, she would nevertheless have granted the
eviction
order, especially if regard is had to the fact that the
applicants have no right to occupy the premises. These circumstances
may
have had an influence on her ruling relating to the timing of the
eviction but not on the order to evict. In that regard, see:
City
of Johannesburg v Changing Tides 74 (Pty) Ltd & Others,
2012
(2) SA 294
(SCA), at par [25] where Wallis JA states as follows:
‘
Once
the court decides that there is no defence to the claim for eviction
and that it would be just and equitable to grant an eviction
order,
it is obliged to grant that order. Before doing so, however, it must
consider what justice and equity demands in relation
to the date of
the implementation of that order and it must consider what conditions
must be attached to that order.’
[41].
In the founding affidavit, the applicants
take issue in the main with the fact that City of Johannesburg has
not been joined as
a party to the application for their eviction. As
mentioned above, the Notice of Motion was served on the Johannesburg
City Council
by the respondents, who seemingly did not respond in any
way whatsoever.
[42].
I have already alluded to the fact that
since September 2013, the applicants have made no attempt to rope in
the City of Johannesburg
with a view to having their constitutional
right to emergency housing enforced against the Council. In the
Changing Tides
matter,
the SCA had directed the attorneys of the occupiers to prepare lists,
etc with a view to the City of Johannesburg providing
alternative
accommodation following their eviction. This, in my view, is an
indication that the applicants are not allowed to sit
back and expect
the respondents to take the necessary measures to get the Local
Authority to intervene. The applicants themselves
ought to have taken
the initiative.
[43].
Also, in the matter of
Johannesburg
Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban
Village,
2013 (1) SA 583
(GSJ), the
court held that prerequisites for mediation were that the parties be
bona fide
and that a credible proposal be put forward. In that matter, so
Willis J held, there was little evidence that the occupiers were
bona
fide
nor had they put forward a
credible proposal. In addition, the court doubted the capacity of the
municipality to mediate the process.
I agree with this approach.
[44].
In the premises, I am of the view that the
‘
defence’
that
the City of Johannesburg should have been required to intervene in
the proceedings is not sustainable.
[45].
I am accordingly of the view that, having
regard to all the circumstance in this matter, including the personal
circumstances of
the occupiers and in particular the prospect that
their eviction could lead to homelessness, they have not established
a bona fide
defence that carries some prospect of success.
[46].
A
court has a wide discretion in evaluating ‘
good
cause’
in order to ensure that justice is done.
[1]
For
this reason, the courts have refrained from attempting to frame an
exhaustive definition of what would constitute sufficient
cause to
justify the granting of an indulgence for any attempt to do so would
hamper the exercise of the discretion
.
[2]
[47].
I am not persuaded that the occupiers have
shown ‘
good cause’.
They attempted to create the impression that when their
representatives attended court on the 10
th
of September 2013, they were completely ignored and they were
blissfully unaware of what was happening in court. They also blame
the court and Mr Ngubane for allowing an order to be granted against
them by consent. This is denied by Mr Ngubane, who rejects
the
implication that he colluded with plaintiff’s legal
representatives on the day of the hearing. For the reasons mentioned
above, this ground, as a basis for setting aside the order granted by
the court, falls away.
[48].
An examination of the grounds provided by
the occupiers for the rescission of the judgment reveals that this
application is not
bona fide
.
The applicants have also failed to raise a
prima
facie
defence to the claim by the
Respondents.
[49].
I
am not persuaded that the Applicant had demonstrated the existence of
a
bona
fide
defence
on the substantive merits of the Respondents’ claim. In
Chetty
v Law Society, Transvaal
[3]
,
Miller J said the following about the two elementary requirements of
common law, the test of sufficient cause:
“
It
is not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success on
the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation
of his default. And ordered judicial process would be negated if, on
the other hand, a party who could offer no
explanation of his default
other than his disdain of the Rules was nevertheless permitted to
have a judgment against him rescinded
on the ground that he had
reasonable prospects of success on the merits’
[50].
I am satisfied that the application for
rescission of the order granted on 10
th
September 2013 should fail.
[51].
Accordingly, I intend dismissing the
application to set aside and rescind the said order.
[52].
During argument before me, Mr Van der
Merwe, Counsel for the Respondents, informed me that, in order to
afford the applicants time
and opportunity to make arrangements for
alternative / emergency accommodation, the Respondents are amenable
to allowing the applicants
until January 2016 to vacate the property.
I therefore intend varying the previous eviction order of Khumalo AJ
to provide for
this concession on behalf of the respondents.
order
Accordingly,
I make the following order:
1.
The application for rescission is
dismissed.
2.
The applicants, together with all members
of their families and any other persons who are in occupation of the
property (the unlawful
occupiers), are to vacate the property, known
as [
K…..],
being
[
E…..] [8…..]
and [8….] Berea Township, Registration Division I.R., Gauteng
Province, situated at the corner
of [S…..] and [F…..]
[R……], [B…..], Johannesburg
(‘the
property’)
, no later than the
31
st
January 2016.
3.
In the event that the unlawful occupiers of
the property do not vacate the property on or before 31
st
January 2016, the sheriff of the court or his lawfully appointed
deputy is authorised and directed to evict the unlawful occupiers
from the property.
4.
The unlawful occupiers are interdicted and
restrained from entering the property at any time after they have
vacated the property
or have been evicted therefrom by the sheriff of
the court or his lawfully appointed deputy.
5.
In the event that any of the unlawful
occupiers contravene the order in para 4 above, the sheriff of the
court or his lawfully appointed
deputy, is authorised and directed to
remove them from the property as soon as possible after their
reoccupation thereof.
6.
The applicants are jointly liable to
pay the costs of this application.
L ADAMS
Acting Judge of
the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON: 3rd November 2015
JUDGMENT
DATE: 12th November 2015
FOR
THE PLAINTIFF: Adv. Wilson, with Adv. Hobden
INSTRUCTED
BY: Seri – SA Law Clinic
FOR
THE DEFENDANT: Adv. Van der Merwe
INSTRUCTED
BY: Vermaak & Partners Incorporate
[1]
See
Wahl vs Prinswil Beleggings (Edms) Bpk 1984 (1) SA (T).
[2]
See
Cairns’ Executors vs Gaarn
1912 AD 181
and Abraham vs City of
Cape Town
1995 (2) SA 319
(C) at 321 I
–
J.
[3]
1985
(2) SA 756
(A).