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
>>
2019
>>
[2019] ZAGPJHC 72
|

|

Avnet South Africa (Pty) Limited v Lesira Manufacturing (Pty) Limited and Another (18/38649) [2019] ZAGPJHC 72; 2019 (4) SA 541 (GJ) (4 March 2019)

REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 18/38649
CASE
NO: 38649/2018
In
the matter between -
AVNET
SOUTH AFRICA (PTY)
LIMITED
Applicant
and
LESIRA
MANUFACTURING (PTY)
LIMITED
First
Respondent
EDWIN
SIBIYA
Second
Respondent
Application to make settlement
agreement an order of court – court has no power to do so where
settlement agreement not preceded
by litigation – application
dismissed
JUDGMENT
S BUDLENDER AJ:
[1]
This is an unopposed application to make a
settlement agreement an order of court.
[2]
It raises an as yet unresolved issue: may a
settlement agreement be made an order of court when the agreement was
reached without
litigation having commenced between the parties?
Background
[3]
The founding affidavit in this matter is
concise.  It indicates that the applicant supplies and sells
electronic components
throughout South Africa; that the first
respondent is involved in manufacturing smart metering units and
goods; and that the second
respondent is a director of the first
respondent. In terms of an agreement between the parties, the
applicant supplied the first
respondent with goods to the value of
R23.59 million.
[4]
The affidavit sets out that, on 12 October
2018, the parties entered into a settlement agreement in terms of
which:
[4.1]
the first respondent would be indebted to
the applicant in an amount of R23.59 million;
[4.2]
the debt would be settled in a series of
monthly instalments from October 2018 to January 2020;
[4.3]
the second respondent agreed to enter into
a suretyship agreement binding himself as co-principal debtor with
the first respondent;
and
[4.4]
the parties agreed to have the settlement
agreement made an order of court and the first and second respondents
undertook not to
oppose this.
[5]
There is no suggestion in the founding
affidavit that any litigation preceded the conclusion of the
settlement agreement.
[6]
The applicant thereafter launched the
present application, which was not opposed. It came before me in the
unopposed motion court.
It was one of two unrelated
applications on my roll in which the parties sought to have a
settlement agreement made an order of
court, despite the fact that
there had been no preceding litigation.
[7]
When
the matter was called, I enquired from counsel appearing for the
applicant whether I could competently grant the order sought
in view
of the fact that there had been no prior litigation between the
parties leading to the settlement agreement.  I drew
the
attention of counsel to a dictum in the Constitutional Court decision
in
Eke
v Parsons
[1]
which appeared to suggest that such an order was not competent.
[8]
I stood the matter down for two days to
allow counsel for the applicant a chance to address full argument to
me on this score.
She duly made helpful and thoughtful oral
submissions on the point, including drawing my attention to three
unreported judgments
dealing with this issue. I deal with these
judgments below.  Counsel for the applicant also indicated that
the applicant only
persisted with the application insofar as it
concerned the first respondent – the applicant did not persist
in the application
insofar as it concerned the second respondent.
[9]
After I reserved judgment, the applicant
filed a supplementary affidavit in which it explained the genesis of
the dispute between
the parties and how the settlement agreement came
to be concluded.  For present purposes it is not necessary to
deal with
the supplementary affidavit in detail. It suffices to say
that the supplementary affidavit sets out the nature of the dispute
between
the parties which gave rise to the settlement agreement. It
records that, but for the conclusion of the settlement agreement, the

applicant would have issued summons to claim payment of the amount
owing.
The
divergent High Court judgments
[10]
As I have indicated, the applicant’s
counsel helpfully drew my attention to three unreported judgments
dealing with the question
of whether a court may make a settlement
agreement an order of court, despite there being no preceding
litigation.
[11]
The
first is the judgment of Van der Byl AJ in the matter of
Growthpoint
Properties.
[2]
[11.1]
That matter concerned an application
seeking to have a settlement agreement made an order of court in
circumstances where there
was no preceding litigation between the
parties.
[11.2]
It was argued by the respondents before Van
der Byl AJ that he had no jurisdiction to make such an order because
there was no prior
litigation between the parties and because there
was no provision in the rules for such an order to be granted.
[11.3]
Van
der Byl AJ accepted that there was no provision made in the rules for
such an order but took the view that this was of no moment
since the
court’s jurisdiction was not derived from the rule.
[3]
Instead he
relied on the court’s jurisdiction in terms of section 19 of
the then Supreme Court Act.
[4]
He held that
“
although
there is on the papers no dispute relating to the terms of the
settlement, the Applicant seeks an order determining an
existing
right the order will be binding on the respondents who do not dispute
the existence and terms of the settlement agreement.”
[5]
[11.4]
Van
der Byl AJ noted that there was at one stage a dispute between the
parties, albeit before any litigation was commenced between
them,
relating to the amount payable in respect of arrears rental. That
dispute was settled via a settlement agreement which the
parties
agreed could be made an order of court. He added that at the stage
the dispute existed, the applicant was entitled to have
launched an
application or institute action but that to avoid litigation and
costs the parties had elected to conclude a settlement
and reduce it
to writing.
[6]
[11.5]
He held:
“
If the court
has no jurisdiction to grant an order of this nature simply because
of the absence of pending proceedings, it would
mean that legal
proceedings would first have to be instituted, should it then be
resolved and a settlement agreement is concluded,
only then would the
court be empowered to make such an order. This will lead to an
unnecessary duplication of legal proceedings.
The term ‘inherent
jurisdiction’ refers to the court’s function of securing
a just and respected process of arriving
at a decision and it is not
a factor which determines what order the court may make after due
process has been achieved.”
[7]
[11.6]
He therefore proceeded to make the
settlement agreement an order of court.
[12]
The
second and third judgments were both delivered by Van der Linde J,
approximately a month apart.  They are the matters of
Lodestone
Investments
[8]
and
National
Youth Development Agency.
[9]
[12.1]
Each matter concerned an application to
make a written agreement an order of court, notwithstanding that
there had been no prior
litigation between the parties.
[12.2]
In
Lodestone
Investments
, the effect of the
agreement at issue was that the respondents acknowledged an
indebtedness in respect of arrear rental amounts
and undertook to
repay the amount in instalments.   In
National
Youth Development Agency,
the effect of
the agreement at issue was that the second respondent, a natural
person, guaranteed the liabilities owed by the first
respondent to
the applicant.
[12.3]
Van der Linde J was not convinced that the
court had the power to make settlement agreements an order of court
where there was no
prior litigation.
[12.4]
However, he found it unnecessary to finally
decide the issue in either matter before him and declined to do so.
[12.5]
In the
Lodestone
matter Van der Linde J held that it was
unnecessary to decide the issue because, even if he had the power to
make such an order,
it was discretionary in nature and he would not
have exercised his discretion in favour of the applicant.  In
the
National Youth Development Agency
matter, Van der Linde J held that it was unnecessary to decide the
issue because there had not been service on the first respondent
and
the matter would in any event have to be postponed.
[13]
Notwithstanding the fact that Van der Linde
J declined to decide the issue, in
National
Youth Development Agency
he emphasised
a number of considerations which appear to me to be important and
helpful regarding the proper resolution of this
issue.
[14]
First, Van der Linde J drew a distinction
between a settlement agreement of the sort before him (and the sort
before me), and arbitration
proceedings.  He explained:
“
There is
legislation specifically designed to the availing of the enforcement
mechanisms of this court, to extra-judicial processes.
That occurs
under and in terms of
s. 31
of the
Arbitration Act 42 of 1965
.
That Act sets out in some considerable
detail the prerequisites that would have to be followed before an
award made under it would
be made an order of court. For instance,
there is required to be an arbitrator who has to conduct him/herself
in accordance with
a minimum standard, and the like.
The point made here is that the
legislature has expressly acknowledged the value of extra-judicial
dispute resolution; and has respected
to a significant degree party
autonomy in the parties’ running of that process. And it has,
under those prescribed conditions,
aided by the machinery of the Law
in other respects, for instance the subpoenaing of witnesses lend
also the enforcement arm of
the Law to the process.
If the legislature
were prepared to lend the enforcement arm of the Law no matter what
the underlying process; no matter how the
settlement came about; no
matter whether there was a fair underlying process; one would have
expected explicit legislation to that
effect. There is no such.”
[10]
[15]
Second, Van der Linde J drew attention to
the primary function of the courts as being to determine disputes
between parties:
“
[I]n my view
the primary function of the courts is to determine disputes between
parties, whether vertically between state and an
individual or
whether horizontally between person and person. The notion of
contempt of court for noncompliance with the court
order is more
compatible with the court order where the parties had first engaged
the dispute resolution facilities of the courts,
even if not to their
final pronouncement, than when there was no attempt at all to engage
them.”
[11]
[16]
Third, Van der Linde J expressed concern
about the notion of a court assuming the role of a debt collector
without its processes
previously being engaged:
“
[T]he
settlement agreement is sought to be made an order of court
principally to have the sword of Damocles hang over the debtor’s

head. It seeks thus to engage the court as debt collector, and that
in respect of debt collection that did not first come to this

court.”
[12]
[17]
It is therefore clear that there is a sharp
divergence between the approach adopted by Van der Byl AJ in
Growthpoint Properties
and the approach of Van der Linde J in
National
Youth Development Agency.
[18]
I have considered whether it is necessary
for me to express a view on this divergence.  I have come to the
conclusion that
I cannot avoid doing do so, for the following
reasons.
[18.1]
First, the issue of the court’s
powers on this score arises squarely before me. On the facts of the
present matter, if I do
have the power to make the settlement
agreement an order of court, I consider that on the facts I would not
be properly exercising
that discretion by refusing the application.
In other words, the question of the court’s powers is necessary
for and
central to my determination of this matter.
[18.2]
Second, it appears to me to be in the
interests of justice that this principled issue is dealt with.
This is because it appears
to be a somewhat recurrent practice that
parties apply to have settlement agreements made an order of court in
circumstances where
there is no litigation preceding those
agreements.  As I have indicated, I had two such matters on my
roll – which were
unrelated and involved separate attorneys –
and the legal representatives before me were somewhat taken by
surprise by the
concern that I raised.  It is therefore in the
interests of justice to decide this issue, one way or the other.
[18.3]
This
is particularly the case as no court has yet considered how this
question is affected by the judgment of the Constitutional
Court
judgment in
Eke
v Parsons
and
the judgment of the Eastern Cape Full Court in
PL
v YL.
[13]
As I explain in what follows, it seems to me that these two
judgments have a significant effect on this issue.  It is

therefore necessary and appropriate to consider whether the
conclusions reached in
Growthpoint
Properties
remain
correct in light of them.
The
effect of the decisions in
Eke
v Parsons
and
PL
v YL
[19]
In
Eke v
Parsons
, the Constitutional Court
delivered a judgment dealing with the status of settlement agreements
that were made orders of courts.
[20]
It
emphasised that that once a settlement agreement has been made an
order of court, “
it
is an order
like
any other”
.
[14]
Its effect
is to change the status of the rights and obligations between the
parties and, save for litigation that may be consequent
upon the
nature of the particular order, “
the
order brings finality to the lis between the parties;
the lis becomes res judicata”.
Moreover,
the order can then be enforced by contempt or other appropriate
proceedings.
[15]
[21]
Eke
v Parsons
did
not concern a settlement agreement that had been concluded without
litigation having been begun.  Nevertheless, in dealing

extensively with the nature of a consent order and the circumstances
in which it can be made, Madlanga J held as follows for the

majority:
[16]
“
This in no
way means that anything agreed to by the parties should be accepted
by a court and made an order of court.  The
order can only be
one that is competent and proper.
[17]
A court must thus not be mechanical in its adoption of the terms of a
settlement agreement.  For an order to be competent
and proper,
it must, in the first place
“relate
directly or indirectly to an issue or
lis
between
the parties”.
[18]
Parties contracting outside of the context of litigation may not
approach a court and ask that their agreement be made an
order of
court.  On this
Hodd
says:
‘
[I]f two
merchants were to make an ordinary commercial agreement in writing,
and then were to join an application to Court to have
that agreement
made an order, merely on the ground that they preferred the agreement
to be in the form of a judgment or order because
in that form it
provided more expeditious or effective remedies against possible
breaches, it seems clear that the Court would
not grant the
application.’
[19]
That is so because the agreement would
be unrelated to litigation.”
[22]
On its face, this dictum appears to
indicate that a court is precluded from making a settlement agreement
an order of court, where
that agreement was not preceded by
litigation.
[23]
Counsel for the applicant sought to
persuade me that what was said in
Eke v
Parsons
had a more limited effect.
[23.1]
She accepted that the judgment would
certainly preclude an ordinary commercial agreement without more
being made an order of court.
But she contended that the position was
different where the parties had been engaged in a genuine dispute and
had resolved the
dispute via a settlement agreement shortly before
the launch of litigation.
[23.2]
She drew attention in this regard to the
Constitutional Court’s endorsement of the quotation from
Hodd
which, while dealing with the limits of the courts’ powers to
make an agreement an order of court, makes reference to ordinary

commercial agreements.
[23.3]
She also contended that the formulation of
the Court’s dictum appeared to allow for an agreement to be
made an order of court
even if it was only “
indirectly
”
related to an “
issue
or
lis”
between the parties.
[23.4]
In those circumstances, she contended,
there was nothing to prevent the settlement agreement being made an
order of court.
[24]
In my view, this is not a correct reading
of the judgment in
Eke v Parsons.
[24.1]
In
this regard, it is important not to seek to read the judgment in
Eke
v Parsons
as though it were a statute.
[20]
[24.2]
Properly
understood, the approach of the Constitutional Court seems to be at
odds with the approach contended for by the applicant.
The Court held
that “
parties
contracting outside of the context of litigation may not approach a
court and ask that their agreement be made an order
of court
”.
[21]
That, on its
face, appears to indicate that where litigation has not yet
commenced, a settlement agreement may
not
be made an order of court.
[24.3]
This is particularly so when
Eke
v Parsons
is read together with the
decision of the Eastern Cape High Court in
PL
v YL,
which the
Eke
judgment repeatedly quotes and
approves. There, in dealing with the powers of a court to make a
settlement agreement an order of
court, Van Zyl ADJP held as follows
for the Full Court:
“
[I]t must be
competent for the court to make the settlement agreement an order.
That is, it must relate directly or indirectly,
to
an issue or
lis
between
the parties that is properly before the court, and in respect
whereof, but for the settlement agreement, it would possess
the
necessary jurisdiction to entertain
.
”
[22]
[24.4]
The underlined passage is of particular
significance for present purposes.  It makes clear that, not
only must there have been
a dispute between the parties that led to
the settlement agreement, but the issue or lis concerned must be
“
properly before the court
”
and, but for the settlement agreement, the court would have to
entertain that dispute.  That is not the case where
a settlement
agreement is concluded without litigation having been launched.
In those circumstances, there is no dispute
before the court at all.
[24.5]
Moreover, the Full Court in
PL
v YL
places an important gloss on the
decision in
Hodd,
which
decision was cited both by it and by the Constitutional Court in
Eke
v Parsons
. The Full Court held that the
approach in
Hodd
:
…
is premised
on the adversarial model on which dispute resolution is based in our
law, namely that the court’s mandate or jurisdiction
is
determined by the lis between the parties. The court’s
authority in other words does not extend beyond the issues
which the
action is capable of raising, and which the parties themselves have
raised in their pleadings…”
[23]
[24.6]
Again, this seems to me to be a strong
indication that the power to make a settlement agreement an order of
court is limited to
those cases where there is already a pleaded lis
between the parties before the Court.  Outside of this context,
the court
ordinarily has no power to do so.
[25]
I am mindful of the fact that neither
Eke
v Parsons
nor
PL
v YL
concerned an attempt to make a
settlement agreement an order of court without prior litigation.
In each case, a High Court
action had been instituted before the
settlement agreement was concluded.
[26]
In
the circumstances, the passages I have quoted from these two decision
are, technically speaking, obiter dicta. They are therefore
not
binding on me. The dicta are however very heavily persuasive,
particularly those from
Eke
v Parsons
given
that they are carefully considered statements coming from the highest
court in the country.  This is because, depending
on the source,
even
obiter
dicta
may
be of “
potent
persuasive force”
and
may only be departed from after due and careful consideration.
[24]
The
proper approach
[27]
After having considered the relevant
authorities, I have concluded that I have no power to make the
present settlement agreement
an order of court.
[28]
It seems to me that the approach taken in
Eke v Parsons
and
PL v YL
,
while not binding on me, is correct.
[29]
The
practice of making a settlement agreement an order of court has a
long history in common law.
[25]
However, this invariably appears to have taken place where the
settlement agreement was reached between parties which were
already
engaged in litigation.  Apart from the
Growthpoint
Properties
case,
which I deal with below, there appears to be no judicial support for
the contention that a court has a power to make a settlement

agreement an order of court where litigation has not commenced by the
time that the settlement agreement is concluded.
[30]
This
is unsurprising.  The primary function of the courts is to
determine disputes between parties.
[26]
The basis upon which a court makes a settlement agreement an order of
court is therefore that there is a dispute between the parties
which
is already before the court and that, absent the settlement
agreement, the court would have to adjudicate that dispute.
[27]
[31]
When
the parties resolve the dispute that is before the court, the court
may then (after satisfying itself that the settlement agreement
is a
permissible one) make the settlement agreement an order of court.
Such an order of court becomes an order of court “
like
any other
”
[28]
– there is no difference between such an order, and one granted
by the court after dealing with the merits of the dispute.
[29]
This is a coherent and consistent approach to the manner in which
courts adjudicate and give orders in the disputes before them.
[32]
It is quite a different matter to allow
parties who are not engaged in any litigation before the court at all
to transform their
agreement into court order of this type. As the
Full Bench held in
Mansell
more
than sixty years ago:
“
For many
years this Court has set its face against the making of agreements
orders of Court merely on consent. We have frequently
pointed out
that the Court is not a registry of obligations. Where persons enter
into an agreement, the obligee's remedy is to
sue on it, obtain
judgment and execute.”
[30]
[33]
Moreover, the misgivings raised by this
court in
National Youth Development
Agency
, albeit without deciding the
issue, in my view have much to commend them. In particular, as Van
der Linde J put it:
“
[T]he
settlement agreement is sought to be made an order of court
principally to have the sword of Damocles hang over the debtor’s

head. It seeks thus to engage the court as debt collector, and that
in respect of debt collection that did not first come to this

court.”
[31]
[34]
A
breach of a court order is a serious matter. Disobedience of a court
order constitutes a violation of the Constitution and can
give rise
to contempt proceedings, with consequences such as
incarceration.
[32]
It does not seem permissible or appropriate for parties to be free to
clothe their agreement with these consequences, in
circumstances
where the agreement is not resolving a matter already before the
court.
[35]
That leaves the contrary approach adopted
by the court in
Growthpoint Properties
in support of its conclusion that it
did have the power to make the agreement concerned an order of court.
I am in respectful disagreement
with the court’s reasoning in
this regard.
[35.1]
In
that matter, Van der Byl AJ relied on the court’s jurisdiction
in terms of section 19 of the then Supreme Court Act, which
conferred
jurisdiction on the court “
in
its discretion and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination”
.
[33]
[35.2]
It
correct, as Van der Byl AJ pointed out, that since
Ex
Parte Nell
a court’s power to grant a declaratory order does not depend on
there being a live dispute between the parties,
[34]
albeit that the absence of such a dispute may militate against such
an order being granted.
[35]
[35.3]
But the usual circumstances in which a
declaratory order is granted without a live dispute at least involve
a situation in which
there is an uncertainty as to the correct legal
position.  As the Full Court explained in
Oakbay
Investments
regarding the effect of
Ex
Parte Nell:
“
The dictum
on this requirement in  Ex parte Nell is not
without  qualification. … The following
extract from
that judgment reflects the reason why the court granted the
declaratory relief even though there was no live dispute
between the
parties:
“
The need
for such an order can pre-eminently arise where the person concerned
wished to arrange his affairs in a manner which
could affect other
interested parties and
where
an uncertain legal position could be contested by one or all of them
.
It is more practical, and the interests of all are better served,
if
the
legal question can be laid before a court even without there being an
already existing dispute
.”
[36]
[35.4]
In a
case where a settlement agreement has been reached and is sought to
be made an order of court, there is inevitably no live
dispute
between the parties, but it is also difficult to conceive what
“
uncertain
legal position
”
could be applicable. The very point of the application before me (and
the application before Van der Byl AJ in
Growthpoint
Properties)
is
that the parties are
not
in dispute or a state of uncertainty about the existence of their
agreement. It is on this basis that I am asked to enforce the

agreement via court order.  It therefore seems to me that
section 21 of the Superior Courts Act
[37]
does not provide me with the necessary jurisdiction to make the
settlement agreement an order of court.
[35.5]
Van
der Byl AJ was also persuaded by what he described as the
“
unnecessary
duplication of legal proceedings
”
that would result if he declined to make the agreement an ordered of
court. This is because the parties would have to first
institute
legal proceedings and then settle, if they wanted a court order to be
granted.
[38]
[35.6]
I am in respectful disagreement with this
approach. Even if the present application is dismissed, the
settlement agreement between
the parties before me is (absent some
challenge to it) already a legally binding agreement. If the
respondents adhere to their
obligations under the agreement, there
will be no need for legal proceedings or a court order at all.
If they do not adhere
to their obligations, the applicant will then
be entitled to institute proceedings based on the settlement
agreement and seek a
court order requiring compliance with the terms
of the agreement.
[35.7]
This in my view does not produce any
“
unnecessary duplication of legal
proceedings
”. Rather, it ensures
that legal proceedings and the involvement of the court are confined
to pronouncing on real disputes
between parties or resolving legal
uncertainty, but only if and when such disputes or uncertainty arise.
[36]
In all the circumstances, I am of the
respectful view that the decision in
Growthpoint
Properties
is clearly wrong,
particularly in light of the reasoning in the subsequent decisions of
Eke v Parsons
and
PL v ML
.
I am therefore entitled to depart from the decision in
Growthpoint Properties.
Conclusion
[37]
For the reasons set out, I am of the view
that I do not have the power to make the settlement agreement an
order of court.
[38]
I accordingly make the following order:
“
The
application is dismissed.”
__________________________
S BUDLENDER
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANT C. VAN DER LINDE
ATTORNEYS
FOR APPLICANT C DE VILLIERS ATTORNEYS
DATE OF JUDGMENT 4 March 2019
[1]
Eke v Parsons
2016 (3) SA 37
(CC) at para 25
[2]
Growthpoint Properties Ltd
v Makhonya Technologies (Pty) Ltd and others
NGHC Case No. 67029/2011 (12 February 2013).
[3]
Growthpoint Properties
at
para 6
[4]
Act 59 of 1959.  The equivalent provision of the
Superior
Courts Act 10 of 2013
is
section 21.
[5]
Growthpoint Properties
at
para 8
[6]
Growthpoint Properties
at
paras 12 - 13
[7]
Growthpoint Properties
at
para 14
[8]
Lodestone Investments (Pty)
Ltd v Muhammad Ebrahim t/a Ndimoyo Transport
GLD
Case No. 5716/2016 (29 April 2016)
[9]
National Youth Development
Agency v Dual Point Consulting (Pty) Ltd and Ano
GLD Case No. 06982/2016 (19 May 2016)
[10]
National Youth Development
Agency
at paras 12 to 15
[11]
National Youth Development
Agency
at para 16
[12]
National Youth Development
Agency
at para 18
[13]
PL v YL
2013 (6) SA 28 (ECG)
[14]
Eke v Parsons
at
para 29
[15]
Eke v Parsons
at
para 31
[16]
Eke v Parsons
at
para 25
[17]
Citing
PL v YL
2013
(6) SA 28
(ECG) at para 15
[18]
Quoting
PL
v YL
2013 (6) SA 28
(ECG) at para 15
[19]
Quoting
Hodd v Hodd;
D’Aubrey v D’ Aubrey
1942
NPD 198
at 204
[20]
Hotz
v Hotz
2002
(1) SA 333
(W) at para 8
[21]
Eke v Parsons
at
para 25
[22]
PL v YL
at para 15
(emphasis added)
[23]
PL v YL
at
para 24
[24]
Turnbull-Jackson v Hibiscus
Court Municipality and Others
2014 (6) SA 592
(CC) at para 56
[25]
PL v YL
at para 17
[26]
National
Youth Development Agency
at para 16
[27]
PL v YL
at para 15
[28]
Eke v
Parsons
at
para 29
[29]
Moraitis Investments (Pty)
Ltd and Others v Montic Diary (Pty) Ltd and Others
2017 (5) SA 508
(SCA) at para 16
[30]
Mansell v Mansell
1953 (3) SA 716
(N) at 721.
[31]
National Youth Development
Agency
at para 18
[32]
Eke v
Parsons
at
para 64
[33]
Growthpoint Properties
at para 8
[34]
Ex Parte Nell
1963
(1) SA 754
(A) at 759H
[35]
Competition Commission of
South Africa v Hosken Consolidated Investments Limited and Another
[2019] ZACC 2
(1 February 2019) at para 82
[36]
Minister of Finance v
Oakbay Investments (Pty) Ltd and Others
2018 (3) SA 515
at para 62 (emphasis added by Full Court)
[37]
The successor provision to section 19 of the Supreme Court Act.
[38]
Growthpoint Properties
at
para 14