About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 182
|
|
Flemix and Another v Russel; In re: Russel v Flemix and Others (44521/2014) [2016] ZAGPJHC 182 (6 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
44521/2014
DATE:
6 JULY 2016
In
the matter between:-
FLEMIX,
JACOBUS JOHANNES
(KOBUS)
...............................................................
First
Excipient
FLEMIX,
BEVERLY
NORMA
...................................................................................
Second
Excipient
And
RUSSEL,
KEITH
MICHAEL
..............................................................................................
Respondent
In
re:
RUSSEL,
KEITH
MICHAEL
....................................................................................................
Plaintiff
And
FLEMIX,
JACOBUS JOHANNES
(KOBUS)
..............................................................
First
Defendant
FLEMIX,
BEVERLY
NORMA
.................................................................................
Second
Defendant
DE
LANGE, GERHARDUS
STEPHANUS
................................................................
Third
Defendant
GDL
CONSULTING
CC
............................................................................................
Fourth
Defendant
LINNING,
MICHAEL
WE
............................................................................................
Fifth
Defendant
JUDGMENT
SHAKOANE,
AJ
[1]
On
8 December 2014 the Respondent, Keith Michael Russel who is the
Plaintiff in the main action, issued out of this Court combined
summons instituting a claim against the Excipients who are the First
and Second Defendants in that action together with three others
[1]
and
in which the Respondent claims damages against the Excipients and the
Fifth Defendant in the main action arising from a sale
agreement
between the Excipients as sellers and the Respondent as the purchaser
of the property
[2]
infra
,
in the amount of R1 174 354,24
[3]
and
then against the Excipients and Third and Fourth Defendants in the
said main action in an amount of R1 137 528,23
arising from
the same agreement,
[4]
together
with interest on each amount from date of service of summons to date
of payment, jointly and severally, the one paying
the others to be
absolved, as well as the costs of suit on the scale as between
attorney and client.
[5]
[2]
In
the particulars of claim attached to the summons, the Respondent
alleges that the Excipients are married to each other and developed
the property, as owner builders, from being a vacant stand to one of
a dwelling when they erected a dwelling house and that they
then sold
the said property which is described as Erf 3….., W P, also
known as No. 1 F S, W P, R district (“the property”),
to
him
[6]
in an amount of
R2 650 000,00 as the purchase price.
[7]
[3]
The
Respondent further alleges that the Excipients had appointed the
Third and Fourth Defendants in the main action as professional
engineers to oversee the design and inspection of the construction of
the roof structure of the property to ensure compliance with
the
approved design of the roof and the Fifth Defendant as professional
engineer to oversee the design and inspection of the construction
of
the structural system of the property to ensure compliance with the
approved design of that system, in terms of Regulation A1(9)
of the
National Building Regulations and Building Standards Act
[8]
(“the Regulations”). In substantiation thereof, the
Respondent attaches the relevant certificates of appointment
of the
said Defendants as “R-2” and “R-3” to the
particulars of claim.
[9]
Furthermore, the Respondent alleges that at the time of the
signing of the agreement with the Excipients,
[10]
including at the time of the transfer of the property to him the
Excipients concealed certain specified latent structural defects
and
made misrepresentations in respect thereof, contrary to the
regulations and which resulted in the damages claimed by him.
[11]
[4]
Then
insofar as concerns the Third, Fourth and Fifth Defendants in the
main action the Respondent alleges on the same basis,
mutatis
mutandis
that they in their respective capacities as professional engineers in
erecting the roof and structural system of the property,
also made
themselves guilty of negligent conduct which resulted in the damages
suffered by him and claimed in the action before
Court.
[12]
[5]
On
4 February 2015, the Excipients served and filed their notice of
intention to defend the action and claim by the Respondent.
[13]
Then
on 18 February 2015 the Respondent served and filed notice of
intention to amend in terms of Rule 28 in respect of paragraphs
4.1
and 6.1 of the particulars of claim.
[14]
The
Excipients and the other defendants in the main action did not object
to the intended amendment which then resulted in the Respondent
delivering the amended pages on 9 March 2015.
[15]
[6]
Meanwhile,
on 3 March 2015 prior to the filing of the Respondent’s said
amended pages, the First and Second Defendants in
the main action,
being the Excipients served and filed an exception to the
Respondent’s particulars of claim contending,
in a nutshell,
that the Respondent’s particulars of claim are fatally
defective on the ground that they have been mis-joined
[16]
because
the correct defendant in their place should have been an entity known
as Thrive Mzantsi Trading CC
[17]
,
alternatively
that there is a material and fatal non-joinder of the said CC as a
party to the proceedings.
[18]
[7]
The
foundation of the Excipients’ exception and contention in that
regard (as indeed formulated in the exception) is that
on a proper
interpretation of the Respondent’s allegations in paragraph 24
of the particulars of claim, particularly the
regulations referred to
and relied upon by the Respondent in respect of latent defects
constitute “
NHBRC
Technical Requirements
”
as contemplated in the Housing Consumers Protection Measures Act
[19]
(“the HCPM Act”) and that they and the Respondent fall
within the definition of “Housing Consumer” as
contemplated in the HCPM Act.
[8]
Then,
in that regard, the Excipients allege that they had appointed the CC
as a “
home
builder
”
as defined in the HCPM Act to complete the construction of the
dwelling on the property from March to November 2007 and
which CC
they further allege, was registered as a home builder in terms of
Section 10 of the HCPM Act.
[20]
As a result, so contend the Excipients, the provisions of Section
13(2) and 13(4) of the HCPM Act are applicable, in which
case the
property was ceded by them to the Respondent on 31 July 2008 when he
became the registered owner of the property
[21]
and the liability for the structural defects on which the
Respondent’s claim is based pertains to the CC.
[22]
[9]
In
substantiation of their exception on the aforementioned basis, the
Excipients refer to a copy of the residential unit enrolment
certificate issued in terms of Section 14(1)(c) of the HCPM Act which
is Annexure “A”
[23]
to the exception and a copy of a Deed Search in respect of the
property which is Annexure “B”.
[24]
It seems that the Excipients later felt that some further additional
information under oath was required to enable them to
advance the
exception. That resulted in the Excipients serving on the
Respondents and filing with the Registrar on 13 March
2015, a
substantive application comprising of a notice of motion
[25]
and a founding affidavit
[26]
to which they attached the exception (and its annexures) as
“JJF1”.
[27]
[10]
Before
me, Counsel for the Respondent, Mr van der Merwe argued that all
these are an indication that the Excipients’ exception
is
founded on extraneous basis and thus not permissible for purposes of
an exception in terms of Rule 23(1) of the Uniform Rules
of Court as
they are neither part of nor referred to in the particulars of claim
against which the exception is mounted.
Relying on a number of
decided cases,
[28]
Mr van der
Merwe argued further that, that should be so because in our
exception, an excipient is confined to the facts alleged
in the
particulars of claim as it stands and cannot at the exception stage
go beyond the record, and that if any outside evidence
is required to
establish a defence, the pleadings must be answered and not excepted
to.
[29]
He contended
that the Excipients’ exception fall foul of this principle
because the CC referred to in the exception
is not referred to in the
Respondent’s particulars of claim and that the question should
be one that asks whether on every
interpretation that can reasonably
be attached to it, the Respondent’s particulars of claim as it
stands fails to make out
a case against the Excipients. The
Excipients’ exception therefore, so continued Mr van der
Merwe’s argument, should
have been brought by the Excipients in
the form of a special plea than an exception.
[30]
I return to the argument by Mr van der Merwe later in this judgment.
[11]
The
Excipients make the prayer in their exception that this Court should,
on the bases relied upon by them above
[31]
,
dismiss the Respondent’s claim with costs.
[32]
The Respondent’s attorneys answered to the exception by way of
a notice in terms of Rule 30(2)(b) and 30A
[33]
contending that it constitutes an irregular and/or improper step in
that it does not comply with Rule 18(1) of the Uniform Rules
of
Court. However, this was not pursued by the Respondent since no
application in respect thereof followed from the Respondent
and also
Counsel for the Respondent did not rely on same in his oral and
written argument, save only insofar as the issue of costs
is
concerned.
[34]
[12]
Counsel
for the Excipients, Mr Bunn contended that it is permissible for an
exception on the ground of non-joinder or mis-joinder
to be brought
by a party in terms of Rule 23(1) of the Uniform Rules of Court and
in particular that once the property was sold
to the Respondent by
the Excipients, a cession of the rights of ownership in the property,
from the Excipients to the Respondent,
occurred.
[35]
He substantiated this contention by referring to pages 104 to 106 of
the papers before Court, being the exception as annexed
to the
founding affidavit
[36]
and
argued that, that constituted the substance of the Excipients’
exception before me. In that regard Mr Bunn placed
reliance on
the decision in
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
[37]
contending that the CC as the “home builder” has a direct
and substantial interest in the proceedings and therefore
that the
failure by the Respondent to join the CC in the proceedings
constitute a material non-joinder which is fatal to the Respondent’s
claim.
[38]
[13]
Then
in answer to the argument by Mr van der Merwe for the Respondent that
the Excipients’ exception is uncouth and not permissible
in
terms of Rule 23(1) as it relies on extraneous information including
in particular the substantive application
[39]
filed by the Excipients in order to explain the basis of their
exception, Mr Bunn for the Excipients submitted that the decision
in
the Excipients’ bundle of authorities in
Smith
v Conelect
[40]
is authority that an exception based on non-joinder may be brought by
way of a notice of motion supported by an affidavit and that
once the
affidavit is put up attaching and presenting the certificate showing
that the CC was issued with a residential unit enrolment
certificate
by the National Home Builders Registration Council
[41]
in terms of Section 14(1)(c) of the HCPM Act,
[42]
the HCPM Act kicks in.
[43]
I do not think this argument is correct and I state my reasons for
this below.
[44]
[14]
However,
I agree with Mr Bunn’s contention that an objection of
non-joinder and/or misjoinder, although usually taken by way
of
special plea or plea in abatement,
[45]
may well be taken by a Defendant by way of an exception on the ground
that no cause of action is disclosed
[46]
and it seems to me that the argument by Mr van der Merwe
[47]
clearly appreciates this principle. However, it is important
that I draw attention to the qualification that, that is permissible
only in cases where the alleged non-joinder, which in my view should
also apply to mis-joinder, appears
ex
facie
the summons.
[48]
That is
so in that a misjoinder is the converse of a non-joinder and occurs
where a wrong person is joined as a party in
proceedings wherein they
should not have been joined
[49]
and it is my understanding that Mr van der Merwe’s argument
[50]
similarly appreciates that fact and is ostensibly informed by it.
[51]
[15]
I
must say that I agree with Mr van der Merwe’s argument that the
Excipients’ exception in the present matter is outlandish
and
that the point raised therein should have been brought by way of a
special plea. In fact, as I see it, the Excipients
may have to
consider if they themselves should not have been the ones to decide
on bringing a joinder application that the CC be
joined as a party or
issuing it with a third party notice, if they are so advised.
[52]
There are a number of reasons for my view in this regard.
Firstly, it appears to me that the Excipients are raising
the
non-joinder or misjoinder point more as a defence based on extraneous
facts as argued by Mr van der Merwe. Secondly, Mr Bunn’s
contention that the
dictum
in the Smith case permits of an exception based on non-joinder (or
mis-joinder) to be brought or mounted by way of an affidavit
seems to
me to emanate from a mis-reading by Mr Bunn of the decision in that
it is patently clear from a reading of the relevant
part of the
judgment in the Smith case that the Excipient in that case did not
bring his exception by way of an affidavit, but
that it was the party
whom Smith contended should be joined by the Plaintiff in that case
who, in response to the exception, deposed
to an affidavit (which was
later lodged by the Plaintiff, Smith) in which the deponent stated
that he is the sole shareholder and
director of the entity sought to
be joined and that, that entity agrees that it would be bound by any
decision in the action instituted
by Smith notwithstanding it not
being joined therein, and that it would abide any decision of the
Court in respect of the action.
[53]
[16]
Thirdly,
as already stated above, the fact of the alleged non-joinder (or
mis-joinder) does not, in the present case, appear
ex
facie
the summons or at all, which I believe is the reason why the
Excipients base their exception on an interpretation of “
the
regulations
”.
[54]
That, in my view, is even more so in that even a reading of the
allegations in the exception
[55]
when read with the certificate attached by the Excipients
[56]
do not contain any statement supporting the Excipients’ claim
that they “
appointed
”
the CC as a home builder as defined in the HCPM Act to complete the
construction of the dwelling on the property.
[57]
[17]
Fourthly,
the agreement and its addendum, being Annexure “R-1” on
which the Respondent relies for its action for damages
makes no
mention or reference to anything about the involvement of the CC or
it being appointed by the Excipients as a home builder
and instead,
it specifically and exclusively refer to the Excipients and the
Respondent as the “
parties
”
[58]
and is clearly only signed by all of them as parties.
[59]
On the contrary, what appears from the summons is that the Third to
Fifth Defendants in the main action are indeed the parties
who appear
to have been appointed as professional engineers in respect of the
installation of the roof structure and erecting of
the structural
system on the property as alleged by the Respondent.
[60]
[18]
Fifthly,
it has been held that Courts are loathe to decide upon exception
questions concerning the interpretation of a contract
[61]
as sought by the Excipients in the present matter.
[62]
[19]
Lastly,
it is trite that if a cause of action is based on a written agreement
to erect a dwelling house, the builder who institutes
the action must
allege that he is a registered home builder in terms of Section 10(1)
of the HCPM Act.
[63]
The
Excipients’ exception expressly move from this premise,
[64]
which in my view is misplaced. That, in my view, is so in that
it is common cause that the Respondent, who is the Plaintiff
in the
present matter, did not and is not basing his claim on a written
agreement to erect a dwelling house by him or as a builder
in the
sense referred to in Section 10(1) of the HCPM Act or at all
[65]
and
is therefore not required to make any such allegations in his summons
or particulars of claim.
[20]
Flowing
from the reasons aforegoing, it is also my view that the contention
by Mr Bunn as to what he refers to as the substance
of the
excipients’ exception is without substance and untenable.
[66]
The same applies, in my view, to Mr Bunn’s submission that the
CC has a direct and substantial interest in the action,
and that the
present matter is one in which it was appropriate for the excipients
to take an objection of non-joinder or mis-joinder
by way of an
exception. As I see it, Mr van der Merwe’s submission to
the contrary and also that the Respondent’s
particulars of
claim as it stands makes out a case against the Excipients, has
merit. It seems to me therefore that the Excipients’
exception stands to fail, which then brings me to the issue of costs.
[21]
Mr
van der Merwe for the Respondent submitted that the Excipients’
exception was not taken for the purpose of expediting the
disposal of
the action in this matter or to protect the Excipients against an
embarrassment which is so serious as to merit the
costs even of an
exception
[67]
and could have
had no hope of being entertained by the Court and succeeding
[68]
– it should have been raised by way of a special plea.
[69]
He further contended, with reference to
Nkoweni
v Bezuidenhout
[70]
and
Beinash
v Wixley
[71]
that some form of censure by the Court against the Excipients by way
of an attorney and client cost order is, on the facts of this
case,
warranted.
[72]
[22]
For
the reasons which I set out in paragraphs [15] to [20] above, it
seems to me that there is substance in Mr van der Merwe’s
submission. To my mind, the Excipients who appear to have been
legally represented including by Counsel at the material time
of the
taking of the exception and during argument before me, ought
reasonably to have realised and been well advised that they
could
not, on the facts of the present case, be entitled to take or persist
with an exception as they have been doing. I
agree with Mr van
der Merwe therefore that the Excipients’ conduct in this regard
was not reasonable, and is blameworthy
[73]
,
and thus warrants some censure. It seems to me that this is
appropriate to do, so that the Respondent is not left out of
pocket
and in order to do justice between man and man.
[23]
Accordingly I make an order in the
following terms:
23.1
the exception is dismissed;
23.2
the Excipients are to pay the costs of the exception on the attorney
and client scale.
G SHAKOANE
ACTING JUDGE OF
THE HIGH COURT,
GAUTENG
LOCAL DIVISION
FOR THE
EXCIPIENTS : Mr S Bunn
INSTRUCTED BY :
Cliffe Dekker Hofmeyr Inc, of
1
Protea Place, Sandton
FOR THE
RESPONDENT : Mr C van der Merwe
INSTRUCTED
BY : Marius Swart Attorneys, c/o
Herman
Potgieter Attorneys, of
20
th
Floor, Carlton Centre
Johannesburg
DATE
OF JUDGMENT: 6 JULY 2016
[1]
Summons,
p 1
[2]
Particulars
of claim, pp 7 to 8, para 3.1; Annexure “R-1”, p 40,
clauses 1.1 & 1.2, p 41, clause 3, p 44, clause
13, p 46,
clauses 19 & 20 and p 47, clause 22
[3]
Particulars
of claim, p 37, para 43.1
[4]
Ibid
,
para 43.2
[5]
Ibid
,
p 37, para 1 to p 38, para 5
[6]
Particulars
of claim, pp 7 to 8, para 3.1; Footnote 1,
supra
[7]
Particulars
of claim, p 14, para 18; Annexure “R-1”, p 45, clause 16
[8]
No.
103 of 1977
[9]
P
8, para 4.1 to p 10, para 6.1
[10]
P
47, clause 22 and p 48
[11]
Particulars
of claim, p 10, para 9 to p 23, para 25
[12]
Particulars
of claim, p 24, para 26 to p 37, para 43
[13]
Notice
of intention to defend, pp 76 to 78
[14]
Plaintiff’s
notice in terms of Rule 28, pp 79 to 82 & 83 to 84
[15]
Amended
pages, p 86 & 87
[16]
Exception,
p 92, para 10.1
[17]
Ibid
,
p 89, para 6 to p 92, para 10.1
[18]
Ibid,
p
92, para 10.2
[19]
No.
95 of 1998
[20]
Ibid
,
p 89, para 2 to p 90, para 6
[21]
Ibid,
p
91, para 9 to p 92, para 10
[22]
Ibid
,
p 89, para 6 to p 92, para 10
[23]
Exception,
p 90, para 6
[24]
Ibid
,
p 91, para 9
[25]
Pp
96 to 99
[26]
Pp
100 to 102
[27]
Founding
affidavit, p 101, para 3 and pp 103 to 109; Footnote 24,
supra
[28]
Brandfort
Munisipaliteit v Esterhuizen
1957(1) SA 229 (O) at 231 to 232;
;
Serobe
v Koppies Bantu Community School Board
1958(2)
SA 265 (O) at 628-629;
Anirudh
v Samdei and Others
1975(2) SA 706 (N) at 708E;
Makgae
v Sentraboer (Koӧperatief) Bpk
1981(4)
SA 239 (T) at 244 H to 245 A;
Pete’s
Warehousing and Sales CC v Bowsink Investments CC
2000(3)
SA 833 (E) at para [14];
First
National Bank of South Africa Ltd v Perry N.O. & Others
2001(3) SA 960 (SCA) at para [6]
[29]
See
in particular,
Serobe
,
Anirudh
and
FNB
cases,
supra
[30]
See
also, Respondent’s written heads of argument, p 2, para 3 to p
4, para 6 and p 6, para 11 to p 10, para 19
[31]
Paras
[6] to [9],
supra
[32]
Ibid
,
p 92, especially the prayer therein
[33]
Pp
110 to 114
[34]
First
Respondent’s heads of argument, p 11, para 24
[35]
Exception,
p 106, para 9 to p 107, para 10.1
[36]
Footnotes
26 & 27,
supra
[37]
1953(2)
SA 151 (O) at 168 to 170; Exception, p 107, para 10.2
[38]
Excipients’
heads of argument, pp 6 to 7, para 11.2 and footnote 2 therein
[39]
Para
[9],
supra
[40]
1987(3)
SA 689 (W)
[41]
NHBRC;
para [7],
supra
[42]
Founding
affidavit, p 101, para 4.1; Annexure “A”, p 108
[43]
Excipients’
written heads of argument, p 3, para 5 to p 4, para 7; Annexure
“JJF1”, p 104, para 5 to p 105,
para 6
[44]
Para
[15],
infra
[45]
Peackock
v Marley
1934 AD 1
;
Anderson
v Gordik Organisation
1960(4) SA 244 (N) at 247D;
Skyline
Hotel v Nickloes
1973(4) SA 170 (W) at 171H
[46]
Collin
v Toffie
1944 AD 456
at 466;
Anderson
v Gordik Organisation
1960(4) SA 244 (N) at 247 D;
Edwards
v Woodnutt N.O.
1968(4) SA 184 (R) at 186 D-F;
Viljoen
v Federated Trust Ltd
1971(1) SA 750 (O) at 759 H- 760E;
Anirudh
v Samdei
1975(2) SA 706 (N) at 708 E;
Ahmadiyya
Anjuman Ishaati-Islam Lahore (South Africa) v Muslim Judicial
Council (Cape)
1983(4) SA 855 (C) at 860 F;
Smith
v Conelect
,
supra
at 792 D to 693 F;
Van
Zyl N.O. v Bolton
1994(4) SA 648 (C) at 651 D;
Gallo
Africa Ltd v Sting Music (Pty) Ltd
2010(6) SA 329 (SCA) at 331 I to 332 B
[47]
Para
[10],
supra
[48]
Footnote
46,
supra
[49]
Footnote
45,
supra
;
Uniform Rule 10; See also Erasmus
et
al
:
“Superior Court Practice” [original service, 2015], page
D1-127 especially the authorities cited in footnotes 1,
2 and 4
therein
[50]
Para
10,
supra
[51]
Uniform
Rule 13
[52]
Footnote
46,
supra
[53]
Smith
v Conelect
,
supra
at 691 G-H
[54]
Exception,
p 104, para 4; para [7],
supra
[55]
Ibid
,
pp 104 to 105, para 6
[56]
Para
[9],
supra
[57]
Exception,
pp 104 to 105, para 6
[58]
Annexure
“R-1”, p 40, clauses 1.1 and 1.2
[59]
Ibid
,
p 47, clause 22 and p 48
[60]
Annexure
“R-2”, p 49; Annexure “R-3”, p 50;
Annexure “R-8”, p 67; paras [3] and
[4],
supra
[61]
Sun
Packaging (Pty) Ltd v Vreulink
1996(4) SA 176 (A) at 186 J;
Francis
v Sharp
2004(3) SA 230 (C) at 237 F-G
[62]
Paras
[7] & [16],
supra
[63]
IS
& GM Construction CC v Tunmer
2003(5) SA 218 (W);
Hubbard
v Cool Ideas 1186 CC
2013(5) SA 112 (SCA) at 118 H-J and 199 G-J;
Cool
Ideas 1186 CC v Hubbard
2014(4) SA 474 (CC); HCPM Act, Section 10(1)
[64]
Para
[8],
supra
[65]
Para
[1],
supra
;
footnote 2,
supra
;
Exception, p 89, para 1 and p 104, para 1
[66]
Para
[12],
supra
[67]
Barclays
Bank International Ltd v African Diamond Exporters (Pty) Ltd
(2) 1976(1) SA 100 (W) at 107 D;
International
Combustion Africa Ltd v Billy’s Transport
1981(1) SA 599 (W) at 601 A;
Barclays
National Bank Ltd v Thompson
1989(1) SA 547 (A) at 553 F-I;
Gallagher
Group Ltd v IO Tech manufacturing (Pty) Ltd
2014(2) SA 157 (GNP) at 161 C-D;
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006(1) SA 461 (SCA) at 465H;
H
v Fetal Assessment Centre
2015(2) SA 193 (CC) at 199B
[68]
Dharumpal
Transport (Pty) Ltd v Dharumpal
1956(1) SA 700 (A) at 706 E;
Marais
v Steyn
1975(3) SA 479 (T) at 486 H to 487 G;
Van
Lochen v Associated Office Contracts (Pty) Ltd
2004(3) SA 247 (W) at 252 F-G;
Inzalo
Communications & Event Management (Pty) Ltd v Economic Value
Accelerators (Pty) Ltd
2008(6) SA 87 (W) at 101 C-D
[69]
Para
[10],
supra
;
Respondent’s heads of argument, p 11, para 22 to p 12, para
25;
[70]
1927
CPD 130
[71]
1997(3)
SA 721 (SCA) at 734 D
[72]
Respondent’s
heads of argument,
supra
[73]
Mudzimu
v Chinhoyi Municipality & Another
1986(3)
SA 140 (ZH) at 143D to 144I;
Nel
v Waterberg Landbouwers Ko-operatiewe Vereniging
1946 AD 597
;
Gamevest
v Regional Land Claims Commissioner
[2001] 4 All SA 534
(LCC) at 561g and footnote 30 therein; See
also,
Gamevest
(Pty) Ltd v Regional Land Claims Commissioner
2003(1) SA 373 (SCA) at 388, paras [35] and [36]