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[2016] ZAGPJHC 198
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Davis and Another v Purple Fountain Properties 118 (Pty) Ltd (08/36380, 30457/15) [2016] ZAGPJHC 198 (28 July 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number:
08
/36380
Case
No.: 30457/15
DATE:
28 JULY 2016
In
the matter between:
Davis,
Alfred
Bender
...............................................................................................
First
Applicant
Davis,
Penelope
Myrna
.......................................................................................
Second
Applicant
And
Purple
Fountain Properties 118 (Pty)
Ltd
..................................................................
Respondent
Coram:
VALLY J
Heard:
18 MAY 2016
Delivered
28 JULY 2016
Summary:
Lien-Right of Ownership-Eviction
ORDER
The
respondent
and
all
those claiming
occupation
through, by
or
under
it
from
Portion 11 (a
portion
of
Portion 1)
of
Erf
[
1….
A……]
Township,
Registration
Division
I.R,
The
P
rovince
of
Gauteng
and situated
at
1….
R….
R……,
A……. E……. 1, S……... (the
property) are to vacate the property within
five court days of the
date of this order.
The
Sheriff or anyone acting under his/her authority is to give effect to
paragraph 1 above by removing the respondent or anyone
occupying the
property on behalf, or with the authority, of the respondent should
they not vacate the property within five court
days of this order.
The South African Police Services is to furnish the Sheriff or
his/her authorised agent with any assistance
s/he requires in giving
effect to this order. The respondent is to pay the costs of this
application.
JUDGMENT
Vally
J
Introduction
[1]
Portion 1 of Erf 1….
A…… Ext 1 Township is a piece of real estate located in
the upmarket suburb of A…..
It is to be found in the northern
part of Johannesburg. The applicants who are married to each other
owned this entire piece of
real estate until they decided to
sub-divide and sell portions of it. It was sub-divided into four
parts, namely: Portions,
1, 10, 11 and 12. The applicants have
sold portions 10 and 12. They continue to own Portions 1 and 11.
Their residential home is
located on Portion 1. Portion 11 is a
vacant piece of land. It is not clear from the papers whether it has
been registered as a
separate piece of real estate or whether it is
still registered as part of Portion 1. However, for purposes of
resolving the dispute
between the parties this fact is of no moment.
Portion 11 is the portion that forms the subject matter of this
application.
The respondent is a
property developer. It
is in possession of Portion 11.
[2]
Relying on their
rights of ownership the applicants primarily seek the eviction of the
respondent from the property. They also seek
a prohibitory interdict
restraining the respondent or anyone acting under its authority from
using the property for any purpose
whatsoever.
[3]
The respondent’s
occupation of the property arises from an agreement it concluded with
the applicants on or about 5 February
2014. The agreement is referred
to as “the development agreement”. The applicants
and the respondent concluded
the agreement in order for the
applicants to monetise the value of Portion 1 by sub-dividing it into
four portions. Portions 10,
11 and 12 were to be sold off by the
applicants. The respondent was, in terms of the agreement, to find
the purchasers for the
three Portions. The respondent found
purchasers for Portions 10 and 12. The applicants, the respondent and
the respective purchasers
of Portions 10 and 12 have concluded
agreements allowing the respondent to build residential homes on
Portions 10 and 12 for the
purchasers of those Portions. The
construction has been completed. In the meantime Portion 11 remains a
vacant piece of land.
[4]
As from February 2014 the respondent has
had occupation of Portions 10, 11 and 12. While it was busy
constructing the residential
homes on Portions 10 and 12, it utilised
Portion 11 to hold rubble and store building equipment. This was with
the knowledge and
consent of the applicants. During these building
works Portions 10, 11 and 12 constituted a single building site.
Nevertheless,
s
ometime
in 2014 various disputes between the applicants and the respondent
arose.
[5]
The respondent claims
to have found a purchaser for Portion 11 too, but the applicants have
refused to accept the offer it has procured
from the purchaser. They
have refused to conclude the same construction agreement concluded
with regard to Portions 10 and 12.
Instead they have elected to
invoke clause 8.2 of the development agreement. They claim that
because the respondent has failed
to install an electric fence and
increase the height of a wall they are under no duty to accept any
offers the respondent brought
for Portion 11. The respondent has in
turn invoked the arbitration clause in the agreement. The arbitration
proceedings have yet
to commence.
[6]
More importantly, the respondent claims
that while performing the construction work on Portions 10 and 12 it
made improvements on
Portion 11 and has yet to be reimbursed for
those improvements. These included readying
each
of Portions 10,
11 and 12,
including
the
common
areas,
for the required municipal approvals
,
installing and
providing
municipal services connections and installing services
in
the
form of
electrical cables, sewer connections, water piping
along the
dr
i
veway,
as well as conduits for the provision of CCTV and an intercom
.
It went on to procure and obtain the necessary Regulation 38
certificate
.
It claims that
as a result of the work it has done Portion 11, which prior to the
work was a vacant piece of real estate with no
infrastructure for
services, is now a vacant piece of real estate with considerable
infrastructure.
Construction
of a residential home on Portion 11 would be considerably cheaper
because of the work done on it by the respondent.
Consequently,
the applicants as owners of Portion 11 have been enriched
due
to the respondent's
work and
efforts on it
as the market value of Portion 11 has increased substantially as a
result of the improvement thereon.
[7]
It claims that it has
yet to be reimbursed for these improvements and until it has it
claims the right to retain possession of 11
as a lien.
It
formally informed the applicants of this on 2 February 2015. It
claims to have taken steps to perfect its lien over Portion 11
by
erecting a fence around it and by placing a note on the fence
reading:
"Purple
Fountain
Properties
118
(Pty)
Limited
has
a
lien
on this
property
.
Access
is forbidden without permission
."
[8]
The claims the respondent seeks to
vindicate against the applicants are the subject of the arbitration
proceedings. They are
captured below in [19].
The
law
[9]
A
lien is really a right of retention by a
bona
fide
possessor of property belonging to another and no more.
[1]
There are two types of liens that feature in this case: an
enrichment lien and a debtor-creditor lien.
[10]
An
enrichment lien is a right of a possessor to retain a property of
another in circumstances where the possessor has expended money
or
labour on that property and has yet to be compensated for that
expenditure.
[2]
However, n
o
enrichment lien will exist against an owner of a property unless such
owner has been enriched at the expense of the possessor
claiming such
lien.
Thus, for the lien to be valid the possessor must establish on a
balance of probabilities that the owner was enriched as a result
of
an expenditure incurred by the possessor.
[3]
The lien based on the improvement of a property was held to be a real
right vested in the possessor (lienor, lienholder or detentor)
–
the reason being that it derives not from contract but is rather
based on the enrichment of the owner (lienee or owner).
[4]
The lien serves as no more than security for the possessor’s
claim and as such the possessor is not entitled to use that
property
or to gain any benefit therefrom.
[5]
[11]
Our
law also recognises a debtor-creditor lien. This lien is one that is
derives from contract; it is a lien
ex
contractu
.
It is only available to parties to a contract. In terms of this lien
the lienholder has a personal right (as opposed to a real
right)
against whoever is claiming the return of the property possessed by
the lienholder. To defeat a
rei
vindicatio
the lienholder will have to establish that she “
has
incurred expenditure on the property in pursuance of a contractual
obligation existing between
”
[6]
herself and the owner. This lien has been usefully described as”
“
Now
the debtor and creditor liens extend to all the expenses which the
person who claims the lien has incurred upon the property
under the
contract, express or implied, which he has made with the owner. But,
on the other hand, such liens (or, to speak more
exactly, such liens
so far as they cover expenses which are not shown to be either
necessariae
or
utiles
),
as they spring out of the soil of contract, so they are confined
within the limits of contractual privity.
”
[7]
[12]
It is a lien that does not have to arise
from a necessary expense incurred by the
bona
fide
possessor (“
necessariae
”),
or one that increased the value of the property (“
utiles
”).
However, it is one that is restricted to the contractual terms
(“
confined within the limits of
contractual privity
”).
[13]
The law also recognises that a
bona
fide
possessor claiming a lien can, if
the facts of the case allow, elect to rely on either of the two
species of lien, i.e. if the
expenditure was incurred in terms of a
valid contract (a debtor-creditor lien), which expenditure also
increased the value of the
property (enrichment lien). However, the
evidence she relies on for either case is different. The position is
well summed up in
the following
dicta
:
“
Rights
of retention are broadly classified as enrichment (preservation or
improvement) liens or as debtor and creditor liens. The
former are
real rights, the latter not. An enrichment lien is a form of security
for the payment of expenses which were necessarily
incurred by one
party for the preservation or protection of someone else's property
(
impensae necessariae
)
or usefully incurred for its improvement, i.e the enhancement of its
market value (
impensae utiles
).
It is immaterial whether the work was done in terms of a contract
and, if so, whether the contract was with the owner of
the property.
The party who did the work may retain possession of the property in
respect of which his work was done against the
true owner, against
his counterpart in contract (if there is one) or against anyone else
who claims it from him, until he has been
reimbursed for his
expenditure or the amount by which the owner has been enriched,
whichever figure is the lesser.
For
expenditure in respect of improvements which were neither necessary
nor useful, i.e expenses classified as
impensae voluptuariae
,
he will not enjoy a right of retention at all unless the expenses
were incurred in terms of an agreement. In that event he may
enjoy a
debtor and creditor lien against the other contracting party.
A
debtor and creditor lien is available to anyone who, in terms of an
agreement, has performed work pertaining to someone else's
property,
irrespective of whether the work was necessary, useful, enhanced the
value of the property concerned or was trifling.
A debtor and
creditor lien, being a contractual remedy and not a real right, is
maintainable by the one party to a contract against
the other who may
or may not be the owner of the property. Unlike an enrichment lien it
is not limited in its scope: it secures
the full extent of the agreed
remuneration, regardless of his own actual expenditure or the other
side's actual enrichment.
”
[8]
[14]
Finally, in the case of the debtor-creditor
lien the
bona fide
possessor has to show that the benefits it is claiming are those that
fall within the ambit of the contract; it has to be the “
agreed
remuneration
” for the work done.
If not, there is no valid lien.
Has
the respondent established that it holds a valid lien
[15]
The respondent relies on four claims to
establish its case that it holds a valid lien. These claims are the
subject of the arbitration
proceedings it has instituted. It is
necessary to examine each of the four claims in detail to see if any
of them provide grounds
for the respondent to hold a valid lien over
Portion 11.
The
first claim
[16]
For this claim the
respondent relies on the provisions of clause 5.6 of the development
agreement. In terms of these provisions,
the applicants and the
respondent agreed that the applicants would contribute a maximum of
R100 000.00 to the costs of installing
connections for municipal
services to Portions 10, 11 and 12. The applicants’
contribution
was
to be on a “
Rand
for Rand
”
basis, which was understood to be in the region of R200 000.00.
Should these costs exceed R200 000.00 the respondent
would carry
the liability for the excess amount as the applicants’
liability was capped at R100 000.00. While
the respondent
is entitled to recover fifty percent of the costs, up to a maximum of
R100 000.00 from the applicants, it is
nevertheless necessary
for it to quantify the amount it has paid out for these connections.
This it does not do. Nor does it say
which of the costs relate to
Portion 11 and which to the other portions. In other words, it does
not spell out
the
actual connections located on Portion 11.
The
second claim
[17]
The second claim is
for the amount of R169 000.00. The respondent claims this amount
for procuring the Regulation 38 certificate
in respect of the
development. It claims that the certificate was to be procured by the
applicants and their failure to do so forced
it to act so that the
development could proceed. The respondent does not say how much of
the R169 000.00 it claims relate
to Portion 11. Nor does it
furnish any detail as to when it paid this amount and to whom. This
lack of detail is the principal
complaint of the applicants.
They maintain that without this detail they cannot assess whether the
disbursement of the amount
was necessary or that the amount was
reasonable. The respondent does not deny that the payment was made
with regard to the entire
development and was not based on the
development of Portion 11 only.
The
third claim
[18]
The third claim is
for damages the respondent allegedly suffered as a result of the
applicants’ decision to cancel the development
agreement. It is
for the amount of R1 390 800.00. The claim is largely for a
loss of profit, however, it is not one specific
to Portion 11. Being
one for damages in general and not one based on any improvements to
Portion 11 it cannot form the basis of
the lien. Our law does not
provide for a lien to be a security for a damages claim.
The
fourth claim
[19]
The fourth
claim is for
"
work
and/or
improvements
"
to Portion
11. The respondent claims that it should be compensated for providing
“
a
communal gate
”,
constructing “
a
driveway
”,
“
a
boundary wall
”
and “
an
electric fence
”,
and finally installing “
an
intercom
”.
The claim is for a total of R541 000.00 and is made up of the
following:
[19.1]
the provision of services, including the provision of electrical
cable along the driveway, sewer connections, water piping
along the
driveway as well as conduits for the provision of CCTV and intercom -
R233 000.00
[19.2]
The installation and/or improvement of the driveway on the property –
R62 000.00
[19.3]
The installation of a communal gate – R12 000.00
[19.4]
The installation of a boundary wall – R168 000.00
[19.5]
The installation of the intercom – R5 500.00
[19.6]
The installation of storm water layoff and/or layouts –
R45 000.00
[19.7]
The installation of an electric fence – R15 000.00
[20]
In this case, the respondent had from the
inception of the dispute claimed a valid lien on the basis that the
applicants were enriched
by the money and efforts it invested in
preparing Portion 11 for development and for sale, and it has yet to
be compensated for
its expenditure. It relies on the same species of
lien in its answering papers to defeat the
rei
vindicatio
. In its heads of argument
the respondent makes it unambiguously clear that it relies on the
enrichment lien only.
[21]
It
is really the fourth claim
[9]
only
that the respondent can rely upon for its claim that it holds a valid
enrichment lien over Portion 11.
The
applicants aver, in reply, that these connections form part of the
development of Portions 10 and 12. The respondent filed a
further
affidavit in response to the reply, but it failed to deny the
applicants’ averment and to provide any particularity
of the
claim for the amount it expended for any connections that were
installed on Portion 11.Thus,
save
for the boundary wall
[10]
,
none of these items have been located on Portion 11. As for the
boundary wall this is as much part of Portions 10 and 12 as it
is
part of Portion 11. The respondent has already been compensated for
it by virtue of what it received from the sale of Portions
10 and 12.
And, if it has not been adequately compensated it must point out what
portion of the inadequate amount is due for the
improvement of
Portion 11. The respondent is unable to provide this detail. In other
words, it is unable to specify what share
of the amount expended for
the boundary wall should be accorded to Portion 11. It therefore
cannot be found that the applicants
have been enriched at the expense
of the respondent by virtue of the respondent’s expenditure in
constructing the wall separating
Portions 10 and 12 from Portion 11.
In my view, on these facts, it would be incorrect to hold that by
virtue of their ownership
of Portion 11 the applicants have been
enriched by the construction of a wall separating Portions 10 and 12
from Portion 11, and
that this enrichment has been at the expense of
the respondent who has yet to be compensated for whatever efforts and
disbursements
it expended.
In
short, the respondent has failed to show that the applicants have
been unjustly enriched by virtue of the expenditure it disbursed
over
Portion 11, which resulted in the improvement as well as the increase
in value of Portion 11. It has made a bald allegation
claiming that
applicants have been unjustly enriched by the disbursements it
expended over Portion 11 but has failed to demonstrate
the quantum of
the enrichment. It is therefore not entitled to retain possession of
Portion 11 as security for its claims against
the applicants.
[22]
Realising the difficulty faced by the
respondent in establishing a valid enrichment lien, counsel for the
respondent, Mr Bishop,
contended that the respondent did not rely on
the enrichment lien only but also on the debtor-creditor lien.
[23]
The respondent effectively jettisoned its
original defence to the
rei vindicatio
and has, by dint of a somersault, hastened towards an entirely new
defence, one that was not foreshadowed in its answering affidavit.
[24]
While claiming that the respondent had no
intention to abandon its reliance on the enrichment lien, Mr Bishop
however, made no effort
to persuade this court that the respondent
succeeded in proving that it holds a valid enrichment lien. Instead
he concentrated
on showing that the respondent had made out a case
for holding a valid debtor-creditor lien. On this score, Mr Bishop
acknowledged
that nowhere in the papers is there any indication by
the respondent that the respondent relies on a valid debtor-creditor
lien.
He contended, however, that the respondent was entitled to rely
on the debtor-creditor lien if the facts averred in the respondent’s
affidavits supported the case for such a lien, even though the
respondent did not specifically identify its reliance on such a
lien.
Counsel for the applicants, Mr Gilbert, protested at this stance
adopted by the respondent claiming that it unfairly ambushed
the
applicants. He asked that the court ignore this shift on the part of
the respondent and hold the respondent to the only case
it made out
in reply and in its heads of argument. Mr Gilbert contended that the
applicants would have brought different evidence
to the hearing had
they been informed that the respondent intended to make out a case
for a debtor-creditor lien.
[25]
The respondent relied on a number of
authorities to support its contention that despite the fact that it
did not identify the debtor-creditor
lien as its defence to the
rei
vindicatio
, it is nevertheless entitled
to rely on this defence if the facts supporting it are spelt out in
its papers. Its argument is that
whether it holds a valid
debtor-creditor lien is a matter of law, and a party is entitled to
raise any legal point open to it regardless
of whether or not it was
identified in the affidavits. All that is required is that the facts
supporting the legal proposition
it contends for are presented in its
affidavits.
[26]
The principle adopted by our law on this
issue is captured in the following
dictum
:
“
While
it is so that a party in motion proceedings may advance legal
arguments in support of the relief or defence claimed by it
even
where such arguments are not specifically raised in the papers,
provided that all relevant facts are before the court, this
will not
be allowed if it causes prejudice to the other party.”
[11]
[27]
This principle is consistent with our
constitutional values and has been endorsed by the Constitutional
Court:
“
The
law on pleading and raising a point not covered in the pleadings is
settled. However, it needs to be remembered that pleadings
are for
the court and the court is not for the pleadings. A court is bound to
consider the substantial issues between the parties
if the issues in
dispute are clear, and in the absence of prejudice technical
objections ought not to be upheld.
”
[12]
[28]
This principle, in my judgment, is really
of no assistance to the respondent. This is because firstly, it
failed to place
all the facts it is required to do in order to
establish a debtor-creditor lien and secondly, even if it could be
found that it
placed sufficient facts to rely on a debtor-creditor
lien, it cannot gainsay the applicants’ contention that by only
identifying
its reliance on the debtor-creditor lien at the hearing
of the matter it has prejudiced them to such an extent that they
would
not be afforded a fair hearing. They were required to meet one
case all along only to find that they were confronted with a
completely
different case at the hearing. It was submitted on their
behalf that, had the respondent identified its reliance on a
debtor-creditor
lien, they would have placed different evidence
before this court to show that there is no evidential basis for
holding that the
respondents are entitled to rely on such a lien. In
other words, they would have produced evidence to show that the
respondent
did not perform its obligations in terms of the
development agreement, and that in fact the respondent was fully
compensated for
all its efforts by the disbursements paid out in
terms of the development agreement. In short, had the respondent
spelt out its
reliance on the debtor-creditor lien at the outset, and
had it averred all the facts it relies upon in the answering
affidavit,
the applicants would have been able to respond
appropriately thereto.
[29]
For this reason I have come to the
conclusion that the respondent is not entitled to rely on a
debtor-creditor lien.
[30]
In the event the respondent were to be
allowed to rely on the debtor-creditor lien to defeat the
rei
vindicatio
it has not made out a case
for such a lien. It did not present all the facts necessary to
establish the lawfulness of its possession
on the ground that it
holds a valid a debtor-creditor lien. All the respondent did was to
broadly identify the facts it relied
upon for the enrichment lien and
then attached its statement of claim in the arbitration proceedings.
It now asks this court to
treat the allegations in the statement of
claim as if they constitute evidence and as if they are averments
made under oath in
an affidavit. The problem for the respondent
though is that those allegations are bald statements of fact (
facta
probanda
), and the evidence (
facta
probantia
) supporting them, by its own
version, will still have to be presented at the arbitration hearing.
The respondent has consistently
refused to furnish this evidence to
the applicants on the basis that it will only be furnished at the
arbitration hearing.
This unfortunately does not suffice if the
respondent is to successfully resist the
rei
vindicatio
of the applicants. This
court cannot accept that the respondent has established a valid
debtor-creditor lien by placing only
facta
probanda
without any supporting
evidence before it. To defeat a
rei
vindicatio
with a debtor-creditor lien
the
bona fide
possessor must put up detailed credible evidence supporting all the
facts it relies upon. These, at the very least, should consist
of
evidence of the nature and details of the contract, its performance
in terms of the contract (when, where and how it performed),
details
of the breach of the contract by the owner of the property (who
obviously would be the party seeking the
rei
vindicatio
), the exact amount
outstanding and how that amount has been computed. It is important
that the exact outstanding amount be presented
as it affords the
owner an opportunity to defeat the lien by offering alternative
security. Anything short of this would be oppressive
to the owner. It
would prevent her from taking the necessary steps to regain the
fruits of her ownership without prejudicing the
interests of the
bona
fide
possessor who claims the right to
hold on to the property by virtue of having a debtor-creditor lien.
Our law, as stated almost
a hundred years ago is:
“
It
is suggested that there is a very great hardship in these cases on
the owner of goods who finds himself confronted with charges
of which
he knew nothing. To a certain extent there is a hardship, but where
people entrust their property to other persons they
very often do
suffer damage. But the duty of an owner who is confronted by a claim
for a lien is quite simple. If he contests the
lien he is entitled to
demand particulars to show that the claim is of no substance; he is
entitled to get his goods on giving
security.
”
[13]
[31]
The first claim is supposed to arise purely
from clause 5.6 of the development agreement. It is supposed to be a
debt that arises
from the performance of the respondent of its
obligations in terms of the development agreement. But the respondent
does not provide
any details about its disbursements for Portion 11
in terms of the development agreement. The respondent does not
furnish any evidence
as to whom it paid, for what the payment was
made, how much it paid and whether the payments arose as a result of
it performing
its obligations in terms of the development agreement.
As a result, I hold that the respondent has, even if it was allowed
to rely
on a debtor-creditor lien, not established that it validly
holds such a lien over Portion 11.
[32]
None of the other claims were brought on
the basis of it performing in terms of the development agreement.
Furthermore, they lack
the detail necessary to show that it has a
claim in contract. That detail may be provided at a later stage,
perhaps in the arbitration
proceedings, but it is not there at the
moment.
Conclusion
[33]
I hold that the respondent is not entitled
to exercise any lien over Portion 11.
Interdictory
relief
[34]
The respondent admits that even after
claiming to exercise a lien over Portion 11 it made use of Portion 11
by storing rubble on
it “
from time
to time
”, and that it only
removed the rubble, again only “
from
time to time
”, when the
applicants complained about it. It is clear from this that the
respondent has benefitted from the usage of Portion
11. But this is
precisely what it is not allowed to do if it was merely possessing it
as security for payment of an enrichment
claim or for payment of a
debt. As a result the applicants seek a prohibitory interdict against
it. There can be no doubt that
they would be entitled to it. However,
it is really an alternative claim to the vindicatory one. Put
differently, if the respondent
is evicted from Portion 11 there is no
need to grant the prohibitory interdict.
Order
[35]
The following order is made:
1.
The respondent
and
all
those claiming
occupation
through, by
or
under
it
from
Portion 11 (a
portion
of
Portion 1)
of
Erf
1……
A…..
Township,
Registration
Division
I.R,
The
P
rovince
of
Gauteng
and situated
at
1………
R………..
R….,
A…… Extension 1, S….. (the property) are to
vacate the property within five court days of the date
of this order.
2.
The Sheriff or anyone
acting under his/her authority is to give effect to paragraph 1 above
by removing the respondent or anyone
occupying the property on
behalf, or with the authority, of the respondent should they not
vacate the property within five court
days of this order. The South
African Police Services is to furnish the Sheriff or his/her
authorised agent with any assistance
s/he requires in giving effect
to this order.
3.
The respondent is to
pay the costs of this application.
Vally J
Date
of hearing: 18 May 2016
Date of judgment:
28 July 2016
For
the applicant: Adv B M Gilbert
Instructed by:
Fluxmans Inc
For
the respondent: Adv A Bishop
Instructed
by : Dewey Hertzberg Levy Inc
[1]
A
thoughtful summary of the law concerning liens as well as of the
different types of liens available is to be found in
Guman
NO v Ansari and others
[2011] JOL 27841 (GSJ)
[2]
Brooklyn
House
Furnishers
(Pty)
Limited v Knoetze
and
Sons
1970 (3) SA 264
(A)
at
270
E-
F
[3]
United
Building Society v Smookler's Trustees
,
1906 T.S. at p. 627;
Anderson
& Co v Pienaar & Co
.,
1922 T.P.D. 435
at p. 438;
Land
Bank v Mans
,
1933 CPD at p. 24.
[4]
Kommissaris
van Binnelandse Inkomste v Anglo American (OFS) Housing Co. Ltd.
1960 (3) SA 642
(A) at 657F-G;
Smookler's
Trustees
(
supra
)
at 632
[5]
Rekdurum
(Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider Health &
Fitness Centre
1997 (1) 646 SA at 654A-C
[6]
The
Law of South Africa, Vol 15, Part 2 (Second Edition)
p 31, par 50
[7]
Smookler’s
Trustees and Golombick’s Trustee
(
supra
)
at 628 (Citations omitted)
[8]
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993
(1) SA 77
(A) at 84J-85F (Citations omitted)
[9]
See
[19]
above
[10]
See
[19.4]
above
[11]
MEC
for Health, Gauteng v 3P Consulting (Pty) Ltd
2012 (2) SA 542
(SCA) at [28]. See also:
Minister
van Wet en Orde v Matshoba
1990 (1) SA 280
(A) at 285;
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999 (2) SA 279
(T) at 324H-I;
McDonald
t/a Sport Helicopter v Huey Extreme Club
2008 (4) SA 20
(C) at 26B-C
[12]
Pilane
and another v Pilane and another
2013 (4) BCLR 431
(CC) AT [107]
[13]
Anderson
(
supra
)
at 438