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[2016] ZAGPJHC 133
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Haywood and Another v Charilaou and Others (43782/2011) [2016] ZAGPJHC 133 (31 May 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
43782/2011
DATE:
31 MAY 2016
In
the matter between:
Haywood,
Mari,
N.O
........................................................................................................
First
Applicant
FirstRand
Bank Limited t/a RMB Private
Bank
......................................................
Second
Applicant
And
Charilaou
,
Nicos
..........................................................................................................
First
Respondent
Charilaou,
Xenia N.O.
(Obo
The Melal Family
Trust)
................................................................................
Second
Respondent
Stellios,
Sissou N.O.
(Obo
The Melal Family
Trust)
..................................................................................
Third
Respondent
The
Best Trust Company (JHB) (Pty) Ltd,
N.O
....................................................
Fourth
Respondent
(Obo
The Melal Family Trust)
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Van
der Linde, J:
Introduction:
procedural history
[1]
This is an application by the respondents for
leave to appeal against a judgment and order I made on 29 April 2016,
the effect of
which included evicting the first and second
respondents from residential property at Kyalami Agricultural
Holdings. The property
belongs to an insolvent company, of which the
first respondent is the sole shareholder and director.
[2]
Sometime after the insolvent company had acquired
it, the insolvent company bonded the property for the first
respondent’s
commercial debt facility with the second applicant
bank. The first respondent fell into arrears, and the bank obtained
summary
judgment against him. The property was declared executable.
At the sale in execution the property was bought in by the first
respondent’s
family trust. The trust defaulted, the sale in
execution was cancelled, and the property was against sold in
execution, this time
to White Rock Trading (ty) Ltd. Before transfer
could be given, the owner company was liquidated. White Rock Trading
(Pty) Ltd
then offered to buy the property for R4,8m (substantially
more than the R3,35m for which the family trust had bought it).
[3]
The first respondent claimed an improvement lien
to secure his continued occupation of the property; the liquidator
and the bank
brought an application to substitute security for the
lien and to evict the first respondent and his family trust so that
vacant
possession can be given to the purchaser of the property.
[4]
The judgment and order was given on the basis that
the application was unopposed. This happened because although
appearance to defend
the eviction application had been noted, the
parties agreed, and Keightley, J ordered, that the respondents would
deliver their
answering affidavits before 15 April 2016. In
accordance with Practice Manual 9.9.4, the matter thereafter remained
on the unopposed
roll. No answering affidavit was filed by 15 April
2016, and the matter was thus called as an unopposed matter on
Monday, 25 April
2016.
[5]
Counsel for the applicants advised that a
colleague was present, representing the respondents, and that the
respondents would ask
for a postponement to apply for leave to file
their answering affidavits out of time, since these had not been
filed before 15
April 2016, in accordance with the court order.
[6]
Counsel for the respondents then rose, and told
the court that she had been briefed to ask for a postponement so as
to apply for
leave to file answering affidavits. No explanation from
the Bar for the failure to have filed answering affidavits by 15
April
2016 was tendered, nor was application made then for the court
to receive any affidavit. Counsel for the applicants opposed the
application for a postponement, amongst others pointing to the
particular history of the matter.
[7]
I reserved judgment until Friday, 29 April 2016
when I made the order I did on the basis of the applicants’
papers only. Although
I did not express this in my brief judgment, it
is implicit that I refused the application for a postponement made
from the Bar
for lack of an explanation for failure to have complied
with the Keightley, J order.
[8]
The respondents thereafter gave notice of their
application for leave to appeal. When the respondents’
application was called
on Friday 20 May 2016, counsel for the
respondents (applicants for leave to appeal), who had not appeared on
the previous occasion,
explained that there had been a substitution
of the respondents’ attorneys. She apologised to the court and
her opponent
that she had not yet been fully briefed; and said that –
perhaps because she had not been fully briefed - she was under the
impression that an answering affidavit had actually been handed up to
the court.
[9]
I did not recall that occurring on 25 April 2016,
and there was no such affidavit in the court file when I considered
the judgment.
Counsel appearing for the applicants, who also did not
appear on the previous occasion, could not assist. The court file,
which
was then scrutinised by both counsel, confirmed that there was
no answering affidavit in it.
[10]Counsel
for the respondents then said that she would have to apply for a
postponement of the application, so that she could
consider her
position; and in particular, so that she could take instructions on
whether to apply for the handing up of the answering
affidavit. The
postponement application was unopposed, and after hearing counsel and
their availability, I postponed the application
for leave to appeal
to Wednesday, 25 May 2016 at 09h30. I directed the respondents to
file whatever papers they were advised to
file by end of business on
Monday, 23 May 2016, and I directed the respondents, jointly and
severally, to pay the costs of 20
May
2016.
[11]This
judgment on the application for leave to appeal is therefore more
lengthy than is usually the case, but this has been brought
about by
having to deal with the application for the admission of the new
material and, as it happened, the new material itself.
[12]The
formal substitution of attorneys took place on 23 May 2016. On that
day an amended Notice of Application for Leave to Appeal
was also
filed, supported by an affidavit of the first respondent dated 20 May
2016. In the amended notice, notice is given that
application will be
made at the hearing of the leave to appeal application, “…
to admit the answering affidavit that
counsel at the postponement had been instructed to hand up but failed
to mention or hand up
to the Honourable Judge; and for the contents
to be considered in the application for leave to appeal as part of
the grounds for
the postponement.”
[13]In
the first respondent’s affidavit of 20 May 2016 supporting the
amended notice, he says that he was let down by his
previous
attorneys and advocate. He did not know that the agreement that he
would file an answering affidavit by 15 April 2015
had been made an
order of court; but in any event he “…
didn’t
manage to do an affidavit as agreed in the correspondence due to
everything coming at me at once, with parents, my
ill health, and my
financial troubles.”
[14]Elsewhere
in the affidavit he says, “
At the
time of deposing to this Affidavit I have not had the opportunity to
establish from the previous Advocate as to exactly why
they did not
file the answering affidavit within the period that was agreed upon
or why they did not explain to me about the court
order of the 8
th
of April.”
[15]Attached
to this affidavit is an answering affidavit that appears to have been
served on the applicants’ attorneys on
22 April 2016, that is
the Friday before the Monday, 25 April 2016, when the matter was
first called. The answering affidavit is
also dated 22 April 2016.
The affidavit deals with the applicants’ founding affidavit.
[16]There
is one paragraph that deals with condonation, but it does not refer
to the court order of 8
April
2016:
“
Condonation
This
application was served on me in around January 2016. Thus this
answering affidavit is a number of months late. The reason for
the
lateness is the fact the (sic) I had to leave the country due to the
ill health of my parents in Greece and I had no choice
but to attend
to them to see that they are well taken care of as they are
pensioners and there is no one else who I could have
shifted that
responsibility to as I am the only son. Greece as well known has
experiences (sic) a severe economic crisis so people
in Greece are
having trouble dealing with their own affairs never mind assisting
others. This trip also put a severe dent in my
finances and made it
difficult for me to instruct attorneys and counsel.”
[17]When
application for leave to appeal was heard on Wednesday, 25 May 2016,
it appeared that the respondents’ answering
affidavit had been
served on the applicants’ attorneys the previous Friday
afternoon, 22 April 2016. On the following Monday,
25 April 2016,
when the matter was moved, counsel for the respondents did not ask to
hand up the answering affidavit but, after
the hearing at which
judgment was reserved, counsel gave her opponent a copy. The
answering affidavit was therefore never filed
in court.
The
facts
[18]The
essential facts that are asserted in the applicants’ founding
affidavit are these. The first applicant is the sole
liquidator of
Zalvest Ten (Pty) Ltd (in liquidation)(“the insolvent
company”). The second applicant, RMB Private Bank,
is the first
respondent’s banker. The first respondent is a businessman who
lives at 2…. P….. Street, B……,
K…..
A….. H…….. The insolvent company owns this
property, having acquired it in 1998, and the first
respondent is the
sole shareholder and director of the insolvent company.
[19]The
second, third and fourth respondents are the trustees of the Melal
Family Trust, the second respondent being the first respondent’s
wife who lives with him at the Kyalami property.
[20]The
first respondent had a loan facility of R3,8m with RMB Private Bank,
for which the bank exacted a suretyship from the insolvent
company,
and also a bond over the property, which it registered on 20 March
2005. The loan was repayable in 20 years. In due course
the first
respondent fell into arrears, and on 25 August 2009 summary judgment
was granted against the first respondent as well
as the insolvent
company, and the property was declared executable “immediately”.
[21]The
property was not then sold because the first respondent had made
proposals to pay the debt. On 10 July 2010, unbeknown to
RMB, the
insolvent company was deregistered for failing to submit annual
returns. The sale in execution was held on 18 October
2011, and the
property was sold for
R3 530 000
[1]
to the Melal Family Trust (the second to fourth respondents being the
trustees, and the second respondent being the first respondent’s
wife). However, since the insolvent company had been deregistered,
transfer could not be effected, and on 26 June 2012 Heaton-Nicholls,
J confirmed a rule nisi restoring the insolvent company to the
company register.
[22]Still
transfer could not be effected, because the Melal Family Trust
defaulted by failing to provide guarantees, failing to
pay attorneys’
fees and failing to sign transfer documents. The sheriff then applied
under rule 46(11) to set aside the sale.
The Melal Family Trust
opposed the application, filing an affidavit in which the second
respondent said (amongst other things)
that on behalf of the Melal
Family Trust she had spent money on repairs and improvements
amounting to
R2 635 564
,
and claiming an improvement lien on behalf of the Melal Family Trust.
[23]The
matter came before Claassen, J who on 14 October 2014 dismissed these
contentions, and issued an order cancelling the 18
October 2011 sale
in execution, declaring that the property could again be put up for
sale in execution, and directing the Melal
Family Trust to pay the
costs of the application. The second sale in execution then took
place on 19 November 2013 to White Rock
Trading (Pty) Ltd for
R3 950
000.
[2]
[24]However,
in the meantime, unbeknown to RMB, on 14 November 2013, the Melal
Family Trust applied for and obtained a provisional
winding up order
of the insolvent company before Tuchten, J in the North Gauteng High
Court, Pretoria. A provisional liquidator
was appointed, and
thereafter the provisional order was extended on five occasions. In
December 2014 RMB applied for leave to intervene
because it disputed
the veracity of the claim of the Melal Family Trust against the
insolvent company. By agreement such leave
was granted and the
provisional liquidation order was confirmed on 15 April 2015.
[25]The
sale to White Rock Trading (Pty) Ltd could no longer proceed.
However, on 15 April 2015 the provisional liquidator received
a fresh
offer from White Rock Trading (Pty) Ltd to purchase the property for
R4 800
000
,
and on 19 June 2015 (before the first applicant was appointed
on 28 September 2015 as final liquidator), he accepted the
offer.
[3]
[26]However,
on 24 June 2015 the respondents’ previous attorneys wrote:
“
Note that our clients hold a
builders lien over the property and as such will not be vacating the
property until the lien in the
amount of R2 635 564 plus
interest thereon has been paid.”
The
first respondent’s claim to lawful occupation of the property
is a lease with the insolvent company and a builder’s
lien.
[27]After
some exchanges a lease agreement was put up by the respondents’
previous attorneys but it has,
ex facie
its express terms, expired on 31 October 2012.
[28]The
liquidator requested the respondents’ previous attorneys to
provide documentation substantiating the alleged lien.
Eventually, as
will appear below, documents were submitted. In the meantime, when
the sheriff executed a writ in respect of the
summary judgment
against the first respondent on 7 August 2015, his return was one of
nulla bona.
Soon
thereafter, on 12 August 2015 the respondents’ previous
attorneys wrote to the applicants’ attorneys, attaching
documents that were said to substantiate the claimed lien.
[29]The
first applicant then resolved to bring the present application, and
RMB agreed to put up the security which was ordered
a substituted
security for the claimed lien. The main application was brought on 11
December 2015. It was served on 11 January
2016, and on 14 January
2016 appearance was entered into on behalf of all but one of the
respondents, the exception being one of
the three trustees, The Best
Trust Company (JHB)(Pty) Ltd. In fact, it turned out that the fourth
respondent had earlier, on 29
July 2015, resigned as trustee.
[30]On
29 February 2016 the application under the Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act 19 of
1998 (“PIE”)
was launched, advising the respondents that the application for their
eviction would be heard on 8 April
2016; and on 4 March 2016 Fourie,
AJ directed service on the first to third respondents (i.e. the first
respondent and then the
two remaining trustees), the local authority,
and the first to third respondent’s attorneys. That service
took place.
[31]It
is just before 8 April 2016 that the parties’ attorneys agreed
the draft order that the respondents were to file their
answering
affidavits before 15 April 2016, which Keightley, J then made the
contentious order of court that was not complied with.
The
parties’ submissions
[32]The
respondents’ counsel (applicant for leave to appeal) commenced
by applying for admission of the first respondent’s
affidavit
of 20 May 2016, with its attachment of the late answering affidavit
of 22 April 2016. She stressed the passages in the
20 May 2016
affidavit in which the deponent said that he had been let down by his
advocate in not bringing the answering affidavit
to the court’s
attention; that he had been let down by his attorney in not telling
him that the agreement reached in correspondence
between the
attorneys had been made a court order (he was apparently aware of the
agreement itself); and that he did not depose
to an affidavit in the
time agreed because of the difficulties with his parents, his own
ill-health, and his financial troubles.
[33]The
respondents’ submission was that under s.173 of the
Constitution this court had the power to regulate its own proceedings
and this included the power to admit evidence at the stage of an
application for leave to appeal. It was submitted that in any
event,
since the appeal court had the power to admit further evidence, and
since this court has to assess whether there are reasonable
prospects
of success, it followed that this court should assess all the
evidence which will serve before the appeal court, including
then the
evidence contained in the further affidavit.
[34]Further,
it was submitted on the basis of Pitje v Shibambo and Others
[4]
that this court should have played an inquisitorial role concerning
alternative housing for the first respondent and his family
before
issuing the eviction order; and that there is a reasonable prospect
that an appeal court would do so.
[35]For
the applicants (respondents in the leave to appeal) it was submitted,
with reference to
sections 17
and
19
of the
Superior Courts Act 10 of
2013
that this court was
functus officio
and thus could not receive further evidence; that
only the court of appeal could do that; and that in any event, even
if the affidavit
were admitted, it does not make out a proper case
for a postponement, and also does not disclose a defence to the
claim.
[36]In
this latter regard it was submitted that the defence concerning the
lien had been abandoned but was bad in law in any event;
and that the
October 2012 lease relied on by the first respondent is demonstrably
not bona fide since in his affidavit of July
2013 he relied on the
earlier lease despite the fact that the October 2012 lease, if it
were true, would then already have been
in
esse
.
[37]Concerning
the court’s discretion under PIE, the applicants submitted that
s.4(6)
and not
s.4(7)
applied because the six months’ referred
to the period during which the first respondent was an unlawful
occupier, and not
the entire period of his occupation. The applicants
submitted that in any event it was up to the first respondent to
place relevant
facts before the court that would enable the court to
determine whether it was just and equitable to issue the eviction
order.
[38]Finally,
it was submitted that the test in applications for leave to appeal is
now more onerous, and reference was had to the
unreported judgment of
Bertelsmann, J sitting in the Land Claims Court in Cape Town, in The
Mont Chevaux Trust v Tina Goosen and
Others, case no LCC 14R/2014, 3
November 2014. That case laid stress on the words in
section 17(1)(a)
of the
Superior Courts Act, namely
that the appeal “
would
have a reasonable prospect of success.”
Discussion
[39]In
making the order I did, I adopted the approach that it was imperative
to underscore that court orders should be complied
with.
[5]
I
adopted the attitude that when a court order has not been complied
with, specifically against the background of this case which
was
stressed by counsel for the applicants, any application for any
relief by the non-adherent party should commence –
ante
omnia
,
as it were - with an explanation for the non-compliance. That was
absent in this case. The question is whether there is a reasonable
prospect of success, meaning that another court would have allowed
the postponement, or would have adopted a different approach
before
issuing the eviction order than the one which I did.
[6]
[40]I
should point out that no submissions were made that paragraph 1 of
the order I made had a reasonable prospect of success of
being
overturned on appeal. That would accordingly deal with the
respondents’ claim to a lien and no further attention need
be
paid to this aspect.
[41]On
the parties’ submissions regarding the application for leave to
appeal, in my view the correct approach to paragraph
2 of the order I
made, is as follows. First, as regards the application to admit the
answering affidavit that was filed on the
applicants’ attorneys
on the Friday, 22 April, 2016: this court is
functus
officio
, having given a judgment in the
matter. It cannot be admitted so as to come to a different judgment
than the one I reached.
[42]However,
I believe that I can and should admit it for the purpose of assessing
whether there is a reasonable prospect of success
on appeal. The
respondents have said that they intend applying for the admission, on
appeal, of that very affidavit; and if the
appeal court does admit
the affidavit, then at least potentially the affidavit will play a
role in the result to which the appeal
court will come. The appeal
court will itself decide whether to admit it for purposes of the
merits of the appeal, if the matter
goes that far. The decision to
admit the affidavit now at this stage for this limited purpose does
not, in my view, foreclose the
exercise of that power.
[43]The
affidavit broaches two broad topics. The one is the failure to
have filed the answering affidavit in time, and the
other is the
merits of the resistance to the eviction. On the first issue, the
relevant paragraph has been quoted above.
It is in my view too
sparse by far to constitute an acceptable explanation for failure to
have complied with the court order. It
is exceedingly vague. One does
not know precisely when the first respondent was in Greece, and it is
unlikely that it was when
he agreed to file his answering affidavit
by 15 April 2016.
[44]
Moreover,
the explanation of not being in funds is not credible; in his
attorney’s letter of 6 April 2016
[7]
his attorney wrote that the affidavit was admittedly late for not
having been in funds; but that that issue had been resolved,
which is
why they were agreeing to file their answering affidavits before 15
April 2016.
[45]When
regard is had to the preceding background, the inference is rather
that the first respondent was deliberately delaying
matters.
[46]But
had the affidavit been handed up, the court would have been obliged
to consider not only the quality of the explanation
for the failure
to have complied with the court order, but also the merits of the
defence that was put up in the answering affidavit.
Generally,
a poor explanation for failure to have complied with the court order
can, as it were, be saved by a good defence, and
it then becomes
necessary to consider the answering affidavit.
[47]The
affidavit relies squarely on the alleged improvement lien.
[8]
The first respondent says, “
The
security offered by the bank is no security at all”
.
[9]
More importantly, the first respondent is not at all averse to the
residential property being transferred to the new purchaser:
“
We
would like an order that the bond in favour of FNB is deregistered
and thus when the property (sic) transferred that the full
payment
gross of any debt is paid to me.”
[10]
[48]And
again: “
The
improvements are evident for anyone to see (Annexure A) and the
documentation for this real right is attached as Annexure B.
If the
trustees wish to sell the property the second applicant must put up
proper, unconditional guarantees for the amount of the
lien. I will
then consent to a sale of the property to White Rock or whomever the
First Respondent wishes so long as it is for
a reasonable price. I am
wholly wishing to cooperate with the trustees and to bring the matter
to an end. I will clearly not consent
to something which fails to
honour our lien.”
[11]
The affidavit then quotes and discusses some reported judgments over
a number of paragraphs purportedly in support of the lien.
[49]There
is also an attack on the price at which the property was sold.
[12]
[50]In
view of the paragraph 1 of the court order being unimpeached, coupled
with the respondents’ concession that a third
party institution
like a bank can quite validly put up security for an alleged
lien,
[13]
this part of the
affidavit therefor does not take the matter any further.
[51]Then
follows an attack on the
bona
fides
of
the liquidator.
[14]
One basis
is that the liquidator has sold the property for under market value.
Another is that the liquidator is favouring one
creditor above
another. This part too of the affidavit is so vague that no
credible reliance can be placed on it.
[52]There
is then a section headed, “
Non-compliance
with the PIE Act”
.
[15]
It contains only broad statements of non-compliance particularly for
not having “cited” the municipality, and not having
served on the municipality by the sheriff. As has been pointed out,
whether or not this was strictly necessary, it has occurred.
There is
also an assertion that the service on the respondents (meaning
himself and his wife, and Stellios Sissou) of the PIE notice
did not
take place in accordance with the court rules. But not only were the
respondents al represented by an attorney after such
service (on whom
service also took place), the respondents’ counsel did not
argue this as a point in respect of which there
was a reasonable
prospect of success on appeal.
[53]Finally,
there are two paragraphs in the affidavit relying on the provisions
of s.4(7) of PIE; but they merely state those
provisions, and
do not explain how they find application in this case. On this aspect
the following considerations are relevant.
[54]First,
the main application for the eviction was launched on 11 December
2015; I take that to be the date on which the proceedings
were
“
initiated”
for
the purposes of ss.4(6) and (7) of PIE. The liquidator mailed the
letter demanding that the first respondent vacate the property
on 2
July 2015.
[16]
This was within
six months, and so the question of “
just
and equitable”
should
be determined under s.4(6), not s.4(7). That simply means that except
where land is sold in a sale in execution pursuant
to a mortgage, the
question whether the local authority can make other land available,
does not come into the equation.
[55]Second,
and in any event, apart from the fact that the local authority
was in fact served, the first respondent is plainly
not within the
category of the poorest of the poor. It is only in those cases that
the local authority need be joined in the proceedings.
[17]
[56]Third,
the property involved here was in fact sold at a sale in execution
(the second one) on 19 November 2015.
[18]
The liquidation of the insolvent company prevented registration of
transfer to White Rock Trading (Pty) Ltd being effected
[19]
but thereafter White Rock Trading (Pty) Ltd offered to the
provisional liquidator to buy the property, and that offer was
accepted.
Accordingly, in all but in name this is a sale in execution
pursuant to a mortgage in which event too, s.4(7) of PIE would not
apply.
[57]Fourth,
it was argued that the court should have investigated further what
the first respondent and his family’s housing
needs were when
they had to vacate the property. But the first respondent, on his own
argument, intimated a willingness to vacate
the property –
provided only that it was sold at a “
right”
price,
and his lien was compensated. The sale of the property was in fact
pursuant to the bank calling up its bond and obtaining
summary
judgment on that debt, as well as an order declaring the property
executable.
[20]
[58]Fifth,
the first respondent had full opportunity to place all the
circumstances concerning his access to housing before the
court,
represented as he was at all times by an attorney, but has declined
to do so.
[59]In
conclusion, the first respondent’s actions are those of a
debtor persistently seeking to evade payment of an admitted,
lawful
and legitimate judgment debt, to the detriment of the financial
institution and the creditors of the estate of the insolvent
company.
[60]In
my view there is accordingly no reasonable prospect of success on
appeal. For these reasons I make the following order:
(a)
The application to amend the grounds upon which
leave to appeal are sought, is granted.
(b)
The application for leave to appeal is dismissed
with costs.
WHG
van der Linde
Judge,
High Court
Johannesburg
Date
of argument: 25 May, 2016
Date
of judgment: 31 May, 2016
For
the respondents in main (applicants for leave to appeal): Adv R
Stevenson (083 563 9042)
Instructed
by: Khupane Attorneys
c/0
Mkhabela Incorporated
132
Fox Street
East
Wing, 5
th
Floor
Johannesburg
Tel:
011 331 3147
For
the applicants in main (respondents for leave to appeal): Adv A
Williamson (082 452 2472)
Instructed
by: Mendelow Jacobs Attorneys
Unit
8C, 1
st
Floor
3
Melrose Boulevard
Johannnesburg
Tel:
011530 9200
[1]
Page
60, clause 10.
[2]
Page
125 paragraph 11.
[3]
Page
132 clause 2.
[4]
Pitje
v Shibambo and Others [2016] ZACC 5.
[5]
Compare
Clipsal Australia (Pty) Ltd and Others v Gap Distributors and
Others,
2010 (2) SA 289
(SCA) at [20] to [22].
[6]
In
my view I gave a default judgment, on the unopposed motion court
roll, without hearing the respondents on the merits. It seems
to me,
in view of subsequent developments referred to above, that the
judgment I gave is in any event potentially liable to be
set aside,
whether under rule 42(1)(a) or under the common law; compare De Wet
and Others v Western Bank Ltd,
1979 (2) SA 1031
(AD) at 1041 C, 1042
G – H; Naidoo v Matlala, NO 2012 (1) 143 (GNP) at 152 H to 153
A.
[7]
Pages
216, 217 of the paginated papers.
[8]
Paragraph
5.
[9]
Paragraph
8.
[10]
Paragraph
9.
[11]
Paragraph
11.
[12]
Paragraph
26, 27.
[13]
Compare
Manisco & Sons CC (In Liquidation) v Stone,
2001 (1) SA 168
(W);
Pheiffer v Van Wyk and Others,
2015 (5) SA 464
(SCA).
[14]
Paragraph
31 and following.
[15]
Paragraphs
36 to 45.
[16]
Page
21, paragraph 53.
[17]
So
held by the full court of this division in Unlawful Occupiers of Erf
[2…][V…] v Kganyago, KJ and Another,
[2016]ZAGPJHC46(31
March 2016) at [14]; [20]; [23] – [27].
[18]
Page
16 paragraph 31.
[19]
Page
18, paragraph 39.
[20]
Page
50, “FA6”.