About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 85
|
|
Royal Sechaba Holdings (Pty) Ltd v Coote and Another (366/2013) [2014] ZASCA 85; [2014] 3 All SA 431 (SCA); 2014 (5) SA 562 (SCA) (30 May 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
366/2013
Reportable
In
the matter between:
ROYAL
SECHABA HOLDINGS (PTY)
LTD
.......................................................................
Appellant
and
GRANT
WILLIAM
COOTE
......................................................................................
First
Respondent
DANIEL
ELARDUS
ENGELBRECHT
.................................................................
Second
Respondent
Neutral
citation:
Royal Sechaba v Coote
(366/2013)
[2014] ZASCA 85
(30 May
2014)
Coram:
Lewis, Bosielo, Theron and Willis JJA and Legodi
AJA
Heard:
15 May 2014
Delivered:
30 May 2014
Summary:
Res Judicata
–
Issue estoppel – same parties requirement –
privity of interest not established – rule not immutable but no
reasons
advanced for relaxation or extension of the rule.
Same relief –
some issues determined in earlier arbitration while other issues not
adjudicated upon – respondents not
entitled to rely on defence
of issue estoppel.
ORDER
On
appeal from:
North Gauteng
High
Court, Pretoria (Vorster AJ sitting as court of first instance):
1 The appeal is
upheld with costs.
2 The order of the
high court is set aside and in its stead is substituted the following
order:
‘
The
special plea is dismissed with costs’.
3
The matter is referred back to the high court for adjudication on the
particulars of claim and the substantive defence.
JUDGMENT
Theron
JA
(
Lewis,
Bosielo, Theron and Willis JJA and Legodi AJA
concurring):
[1]
The appellant, Royal Sechaba Holdings (Pty) Ltd (Royal Sechaba),
instituted action against the respondents, Mr Grant William
Coote
(Coote), and Mr Daniel Elardus Engelbrecht (Engelbrecht), the first
and second respondents, respectively, in the North Gauteng
High Court
for payment of damages of R13 122 516 alternatively
R4 140 000, for an alleged breach, by them,
of their
fiduciary duties. The respondents raised a special plea of issue
estoppel. The high court (Vorster AJ) upheld the special
plea and
dismissed Royal Sechaba’s claim with costs. This appeal is
against that judgment, with the leave of the high court.
[2]
In order to determine whether the special plea was properly upheld,
it is necessary to examine the factual background giving
rise to this
litigation. Coote and Engelbrecht were employees and directors of
Royal Sechaba. From February 2007 to September 2009,
Coote was the
company’s chief executive officer and Engelbrecht its chief
operating officer. On 1 August 2006, Royal Sechaba
and Mr Louis
Martin Jones (Jones), entered into a written contract of employment
in terms of which Jones was appointed by Royal
Sechaba as Director of
Business Development and which was effective from 1 March 2007. The
parties concluded a further agreement
which was styled ‘Addendum
to Employment Agreement’ (the Addendum) and effective from 1
March 2007, in terms of which
Jones would be paid commission by Royal
Sechaba on every contract he procured for the benefit of Royal
Sechaba. In addition, Jones
would be paid an incentive commission for
managing and overseeing the performance of the contract concerned. In
concluding this
agreement, Royal Sechaba was represented by Coote,
and Jones acted personally.
[3]
To the extent here relevant, the Addendum provides that Jones would
receive commission and incentive payments as follows:
‘
1.
… All new customers that have no existing contract with Royal
Sechaba, a 9% commission based on the projected nett profit
as per
feasibility document. The nett profit includes the estimated value of
any assets that Royal Sechaba would retain at the
end of the
contract. The estimated value of these assets would be the purchase
price less depreciation allowed by the Receiver
of Revenue:
Sales Commission
Structure:
50%
upon starting of the business
A
further 25% halfway through the contract
A
further 25% upon completion of the contract
2. All new business
from existing Royal Sechaba contracts brought in by Mr Louis Jones
will attract the same commission structure
as all other business.
3. Managing and
overseeing the existing Support Services/remote site business and all
new business as stipulated in (1) above Louis
Jones will be
remunerated at 9% operating incentive of actual nett profit achieved.
This is calculated and paid quarterly in arrears.
4. All expenses,
including commission and admin fee payable to Royal Sechaba will be
deducted from the profits. This money will
only be payable for the
duration of involvement by Louis Jones’.
[4]
Jones was extremely successful in procuring new business for Royal
Sechaba. It was common cause that Jones was paid an amount
of almost
R24 million (half of this amount was shared with his management team)
over a period of two years from May 2007 to May
2009. All these
payments were authorised by Coote and Engelbrecht, among others.
During July 2009 these payments were the subject
of an investigation
conducted by an auditor, Mr André Dames, at the instance of
Royal Sechaba. Dames came to the conclusion
that the payments made to
Jones were incorrectly calculated on gross profit, rather than net
profit, as provided for in the Addendum.
He also found that Jones had
received payments before he had become entitled thereto in terms of
the payment schedule in clause
1 of the Addendum and that Jones had
claimed and received commission on ‘new business’ which
had not been procured
by him.
[5]
On 30 September 2009, Coote and Engebrecht were dismissed by Royal
Sechaba, for among other things, authorising payments to
Jones to
which he was not entitled. During the course of the investigation,
Jones as well as Coote and Engelbrecht, disputed that
Jones had been
overpaid. According to them the phrase ‘net profit’ as
used in the Addendum meant ‘net contract
contribution’
which differs from net profit in the ordinary accounting sense. They
also alleged that all the payments received
by Jones had been due to
him. Even though the payment schedule provided for in clause 1 of the
Addendum was not adhered to, the
respondents alleged that they
entered into an oral agreement with Jones in terms of which Jones was
entitled to receive his full
sales commission prematurely (up-front)
if cash flow permitted.
[6]
The disputes between Royal Sechaba and Jones eventually culminated in
the cancellation of both Jones’ employment contract
and the
Addendum. Their disputes were subsequently referred to arbitration.
The arbitrator was called upon to determine various
disputes between
the parties, including the interpretation of the Addendum, whether
the Addendum was varied by way of a further
oral agreement and
whether Jones had been overpaid. The arbitration was protracted,
lasting six weeks. Jones called some 19 witnesses,
including nine
experts. The respondents were key witnesses who testified on behalf
of Jones.
[7]
The arbitrator found, inter alia, that reference to ‘actual net
profit’ in clause 3 of the Addendum, read with clause
4
thereof, meant net profit in the accounting sense of the phrase,
namely, net profit after all expenses had been taken into account.
The arbitrator also found that Jones did not procure a particular
contract in respect of the Ingula Dam for Royal Sechaba and that
he
was not entitled to commission in respect thereof.
[8]
Jones appealed against the arbitrator’s award to an arbitration
appeal tribunal (the Tribunal) comprising Kriegler J,
Blieden J and
Suttner SC. Royal Sechaba also cross-appealed against certain of the
arbitrator’s findings. The Tribunal upheld
the appeal,
dismissed Royal Sechaba’s cross-appeal and substituted the
arbitrator’s award with one in terms of which
Royal Sechaba was
ordered to pay Jones an amount of R 1 673 608, 55 plus
interest and the costs of the arbitration.
[9]
The Tribunal found, inter alia, that the term ‘net profit’
in clauses 1 and 3 of the Addendum meant net contract
contribution as
contended by Jones and the respondents. The Tribunal also found that
the parties had concluded a further oral agreement
in terms of which
it was agreed that Jones would be paid prematurely and not in
tranches as provided in the Addendum, provided
Royal Sechaba had
sufficient cash resources. Royal Sechaba instituted a review
application in terms of
s 33(1)
of the
Arbitration Act 42 of 1965
in
the North Gauteng High Court, for the setting aside of the appeal
tribunal award. The application was dismissed with costs.
[10]
In this appeal, Royal Sechaba contended that the plea of issue
estoppel had been wrongly upheld by the high court on two main
grounds. First, it argued that the ‘same person’
requirement had not been met in that the respondents were not parties
to the Jones arbitration. In reply, the respondents alleged that they
were privies of Jones. Secondly, it contended that the ‘same
cause’ requirement had not been satisfied as the issues which
would arise in Royal Sechaba’s claim against the respondents
were not the same as those determined in the arbitration. I shall
deal with each of these grounds in turn.
[11]
The requisites of a valid defence of
res
judicata
in Roman Dutch law were that the matter adjudicated upon must have
been for the same cause, between the same parties and that the
same
thing must have been demanded.
[1]
Voet,
Commentarius
ad Pandectas
44.2.3 (as translated in
Bertram
v Wood
1893
(10) SC177 at 18) wrote:
‘
under
no other circumstances is the exception allowed than where the
concluded litigation is again commenced between the same parties,
in
regard to the same thing, and for the same cause of action, so much
so, that if one of these requisites is wanting, the exception
fails’.
[2]
[12]
The expression ‘issue estoppel’ is a convenient
description of instances where a party may succeed despite the
fact
that the classic requirements for
res
judicata
have not been complied with because the same relief is not claimed,
or the cause of action differs, in the two cases in question.
[3]
The common law requirements of same thing and same cause (
eadem
res
and
eadem
petendi causa
)
have been relaxed by our courts in appropriate circumstances.
As was pointed out by Lewis JA in
Hyprop
Invesments Ltd v NSC Carriers and Forwarding CC & Others
,
[4]
the relaxation and the application of issue estoppel effectively
started in
Boshoff
v Union Government
,
where it was held that the strict requirements for a plea of
res
judicata
(
eadem
res
and
eadem
petendi causa
)
should not be understood literally in all circumstances and applied
as inflexible or immutable rules.
[5]
Despite some debate as to the approach of Greenberg J in
Boshoff,
Botha
JA in
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
confirmed the correctness of the approach and added that in
particular circumstances these requirements may be adapted and
extended
in order to avoid the unacceptable alternative that the
courts would be obliged:
‘
om
met letterknegtige formalisme vas te klou aan stellings in die
ou bronne, wat onversoenbaar sou wees met die lewenskragtige
ontwikkeling van die reg om te voorsien in die behoeftes van nuwe
feitelike situasies.’
[6]
[13]
Following the decisions in
Boshoff
and
Kommissaris
,
Scott JA in
Smith v Porritt
summarised the development of the law in this regard:
‘…
the
ambit of the
exceptio
rei judicata
has over the years been extended by the relaxation in appropriate
cases of the common-law requirements that the relief claimed
and the
cause of action be the same (
eadem
res
and
eadem
petendi causa
)
in both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those
that
remain are that the parties must be the same (
idem
actor
)
and that the same issue (
eadem
quaestio
)
must arise. Broadly stated, the latter involves an inquiry whether an
issue of fact or law was an essential element of the judgment
on
which reliance is placed. Where the plea of
res
judicata
is raised in the absence of a commonality of cause of action and
relief claimed it has become commonplace to adopt the terminology
of
English law and to speak of ‘issue estoppel’. But, as was
stressed by Botha JA in
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 669D, 670J - 671B, this is not to be construed
as implying an abandonment of the principles of the common law in
favour
of those of English law; the defence remains one of
res
judicata
.
The recognition of the defence in such cases will however require
careful scrutiny. Each case will depend on its own facts and
any
extension of the defence will be on a case-by-case basis.
(
Kommissaris
van Binnelandse Inkomste v Absa Bank
(supra)
at 670E - F.) Relevant considerations will include questions of
equity and fairness not only to the parties themselves but
also to
others. As pointed out by De Villiers CJ as long ago as 1893 in
Bertram
v Wood
(1893) 10 SC 177
at 180, 'unless carefully circumscribed, [the
defence of
res
judicata
]
is capable of producing great hardship and even positive injustice to
individuals.’
[7]
[14]
It was contended by Royal Sechaba that one of the essential
requirements for a successful reliance on either
res
judicata
or
issue estoppel, that the parties must be the same (
idem
actor
),
was not proven by the respondents. It is accepted that the
idem
actor
requirement does not mean identical parties but that ‘same
parties’ for the purposes of
res
judicata
and
issue estoppel include their privies. The principle that a party’s
privies may also rely on an earlier judgment to found
a defence of
res
judicata
or issue estoppel originated from a statement in Voet’s
Commentarius
ad Pandectas
44.2.5
where various illustrations are given of those who are ‘deemed’
to be the ‘same person’ or who are
identified with one
another for the purposes of
res
judicata
,
such as a deceased and his heir, a principal and his agent, a person
under curatorship and his curator, a pupil and his tutor,
a creditor
and debtor in respect of a pledged article if the debtor gave the
article in pledge after losing a suit in which a third
party claimed
it, a purchaser and seller, if the seller has won or lost the
action.
[8]
[15]
In
Ferreira
v Minister of Social Welfare
,
it was noted, with reference to the illustrations listed by Voet,
that the persons who are ‘deemed’ to be the same
as the
persons concerned in the previous action all derive their interest in
the later action from the parties to the original
action.
[9]
In
Ferreira
,
the mother of a child, who alleged that the appellant was the father,
had obtained a judgment by default against the appellant
for
maintenance. She later issued summons for maintenance for a later
period. The appellant filed a plea contesting the allegation
of
paternity. The mother, relying on the effect of the earlier judgment,
objected to the appellant leading evidence in support
of his plea and
this objection was upheld on an application of the principle
res
judicata
.
On appeal, the court held that the order in the original action was
designed to determine the amount of liability between
the
spouses
inter
se
,
and that the mother was there exerting a right of her own and not of
the child. The court concluded that the right to a contribution
order
arose from the provisions of the Children’s Act 31 of 1937 and
that the right to claim such contribution was not ‘derived’
from the mother in the sense necessary to establish the applicability
of the principle of
res
judicata
.
[10]
[16]
The basis of the respondents’ special plea in this case is
that:
‘
The
defendants [respondents] in this matter are parties associated with
the parties in the arbitration,
alternatively
their privies, rendering the arbitration proceedings a final
adjudication between the plaintiff and the defendants by arbitration
of competent jurisdiction.’
In
support of their contention that they were privies of the parties in
the arbitration, the respondents rely on the following:
(1) at all
material times Coote was the chief executive officer and Englebrecht,
the chief financial officer, of Royal Sechaba;
(2) at all material
times both respondents were directors of Royal Sechaba; (3) both
respondents were actively involved in the
negotiations that led to
the conclusion of the Addendum; (4) they represented Royal Sechaba in
these negotiations with Jones; (5)
Coote executed the Addendum; (6)
from May 2007 to May 2009, both respondents were actively involved in
the execution of the Addendum
in the form of the verification of
Jones’ incentives and commissions; (7) both respondents were
called as witnesses to the
interviews relating to Jones’
commission while they were still employees of Royal Sechaba, and (8)
both respondents played
an active role in the arbitration.
[17]
This court in
Shokkos
v Lampert NO
[11]
held that to establish the relationship of ‘party and privy’
the privy must ‘derive title’ from the party.
[12]
Similarly in
Rail
Commuters Group & others v Transnet Limited & others
,
[13]
it was held that for a plea of
res
judicata
to succeed, the parties concerned in both sets of proceedings must
either be the same individuals or ‘persons who are in
law
identified with those who were parties to the proceedings.’ On
the other hand, in
Man
Truck & Bus SA (Pty) v Dusbus Leasing CC & others
,
[14]
Rabie AJ stated that the list of privies should:
‘…
not
be limited only to those listed by
Voet
.
The question as to whether a person should be so regarded, should
depend upon the facts of each particular case and should not
only
apply to the specific person or persons against whom judgment had
been obtained.’
In
Man
Truck
it was held that the sole members and controlling minds of two close
corporations who had bound themselves as sureties for and
co-principal debtors with their close corporations were bound by a
court decision in earlier proceedings against the said close
corporations, even though they were not themselves parties to that
litigation.
[15]
[18]
The respondents were not ‘in law identified’ with either
Jones or Royal Sechaba and neither did they ‘derive
title’
from these parties. All they had in common with Jones is that they
were former employees of Royal Sechaba and they
were all witnesses in
the arbitration. Jones’ success or failure in the outcome of
the arbitration would have no effect whatsoever
on their personal
rights and obligations. There is no basis upon which this court can
find that the respondents were privies of
the parties in the
arbitration. The respondents had no control over Jones and neither
did he represent them in the arbitration.
They had no legal or
beneficial interest in the arbitration. They undoubtedly had an
interest in or concern with the outcome of
the arbitration, but that
is not sufficient to establish the requisite privity. On the facts of
this case, they were not privies
to the arbitration in the manner in
which the concept of being a privy has been interpreted by our
courts.
[19]
It is, however, the view of this court that the ‘same parties’
requirement is not immutable and may in appropriate
cases and in line
with this court’s duty to develop the common law, be relaxed or
adapted in order to address new factual
situations that a court may
face. There is no reason in principle, why a court cannot relax the
same person requirement for the
very reasons why the two other
requirements have, over time, been relaxed. In
Prinsloo NO &
others v Goldex 15 (Pty) Ltd & another
, Brand JA put the
matter thus:
‘
In
our common law the requirements for
res
iudicata
are threefold: (a) same parties, (b) same cause of action, (c) same
relief. The recognition of what has become known as issue estoppel
did not dispense with this threefold requirement. But our courts have
come to realise that rigid adherence to the requirements
referred to
in (b) and (c) may result in defeating the whole purpose of
res
iudicata
.
That purpose, so it has been stated, is to prevent the repetition of
law suits between the same parties, the harassment of a defendant
by
a multiplicity of actions and the possibility of conflicting
decisions by different courts on the same issue (see eg
Evins
v Shield Insurance Co Ltd
1980 (2) SA 815
(A) at 835G). Issue estoppel therefore allows a court
to dispense with the two requirements of same cause of action and
same relief,
where the same issue has been finally decided in
previous litigation between the same parties.’
[16]
[20]
Most recently, in
Caesarstone
Sdot-Yam Ltd v World of
Marble and Granite 2000 CC & others
, Wallis JA stated that it
was not clear that Voet confined ‘same person’ narrowly
to those who ‘derived their
rights from a party to the original
litigation’ and continued:
‘
[I]t
may be that the requirement of “the same person” is not
confined to cases where there is an identity of persons,
or where one
of the litigants is a privy of a party to the other litigation,
deriving their rights from that other person.
Subject to the person
concerned having had a fair opportunity to participate in the initial
litigation, where the relevant issue
was litigated and decided, there
seems to me to be something odd in permitting that person to demand
that the issue be litigated
all over again with the same witnesses
and the same evidence in the hope of a different outcome, merely
because there is some
difference in the identity of the other
litigating party.’
[17]
[21]
In order to develop the common law, by either relaxing or extending
the ‘same person’ requirement, persuasive reasons
must be
placed before the court for doing so. If fairness and equity dictate
a development of the law, and to do otherwise would
defeat the very
purpose of the defence, consideration should be given to allowing
issue estoppel as a defence even where there
is not, strictly
speaking, identity of parties. The doctrine of
res
judicata
is
founded on the policy considerations that there should be finality in
litigation and an avoidance of a multiplicity of litigation
or
conflicting judicial decisions on the same issue or issues.
[18]
As Brand JA in
Prinsloo
said, our courts have recognised that rigid adherence to the
requirements of same cause of action and same relief would defeat
the
purpose of
res
judicata
.
[19]
There is no reason why a similar approach should not be adopted to
the same parties requirement. But in this matter, it was not
argued
why the requirement should be relaxed or extended, since counsel for
the respondents persisted with the contention that
the respondents
were privies of the parties to the arbitration. He also disavowed any
suggestion that the institution of action
against the respondents
amounted to an abuse of the court’s processes.
[22]
The high court correctly concluded that the same parties requirement
was not established but nevertheless, and without any
analysis, went
on to find that it was ‘appropriate to extend the application
of
res judicata
to the facts in the instant case’. The only reason advanced by
the high court for extending the rule in this manner was that
‘the
identities of the defendants in this matter as the persons who agreed
and authorized the payments of commissions to
Jones are inextricably
linked to Jones as the receiver of those payments’. That, in my
view, was not sufficient to allow
the court to extend the principles
governing issue estoppel.
[23]
I turn now to deal with the second ground of appeal relied on by
Royal Sechaba, that the same cause of action requirement has
not been
satisfied in that the issues determined by the Tribunal are not the
same as those to be determined in this action although
the relief
sought was identical (the amount of the damages claim). The
respondents, on the other hand, and in terms of their special
plea,
have alleged that the issues which will arise in this action are the
same as those which have already been determined in
the arbitration,
and Royal Sechaba is accordingly precluded from proceeding against
them on a basis inconsistent with the findings
of the Tribunal. They
do not plead
res judicata,
but
issue estoppel. Thus, while the breach of a fiduciary duty complained
of in the action against the respondents is different
from the cause
of action in the arbitration, the issues, the respondents argue, are
the same. This enquiry requires an examination
of the Tribunal’s
award as well as the pleadings.
[24]
It was common cause that Royal Sechaba’s claim against the
respondents for overpayment of commission based on the interpretation
of clauses 1 and 3 the Addendum had been determined by the Tribunal.
This portion of the claim is pleaded as follows:
‘
[In
breach of their fiduciary duties, the respondents] calculated the
commissions and operating incentives paid to Jones and the
designated
employees on the basis of a measure referred to by them as “net
contract contribution” (essentially gross
profit), instead of
net profit, as provided for in the addendum …’.
This
was the main issue decided by the Tribunal.
[25]
It was, however, contended that there were other issues between the
parties and articulated in the particulars of claim which
were not
covered by, and adjudicated upon their merits, in the arbitration.
One such issue was whether the respondents had breached
their
fiduciary duties to Royal Sechaba in that they had:
‘
Authorised
and/or approved a payment of sales commissions to Jones and
designated employees despite the fact that such sales commissions
and
operating incentives had not yet become due and payable in terms of
the Addendum’.
The
alleged improper behaviour related not to the conclusion of the
Addendum, but the implementation thereof, more particularly
whether
the respondents, in agreeing to pay commission prematurely, had
breached their fiduciary duties and not acted with the
degree of
skill, care and diligence that could reasonably be expected of a
director. The issue of a ‘breach of fiduciary
duty’ was
not determined by the arbitration.
[26]
The argument by Royal Sechaba that some of the issues were not
decided by the Tribunal is correct. The Tribunal, for example,
was
called upon to determine whether Jones was entitled to commission in
respect of the Ingula Dam contract. In terms of the Addendum,
Jones
was entitled to commission on contracts concluded for the benefit of
Royal Sechaba and which he had secured. There was a
dispute whether
Royal Sechaba had concluded a contract in respect of Ingula Dam. The
Tribunal held:
‘
The
defendant [Royal Sechaba] represented by Coote and Engelbrecht agreed
on the payment to the claimant [Jones], and the evidence
indicates
that the contract has been continued albeit on a monthly basis.
Once
the claimant and the defendant, represented by its officials, agreed
that the claimant was entitled to be paid, there is no
reason to set
aside this agreement
’. (Emphasis
added.)
It
was common cause that although there had been reciprocal performance
in respect of Ingula Dam, no formal contract had been concluded.
It
is therefore, at the very least, arguable whether Jones is, in terms
of the Addendum, entitled to commission in respect of Ingula
Dam.
[27]
In these circumstances, I am inclined to agree with Royal Sechaba
that while the issues to be determined between Royal Sechaba
and the
respondents are largely the same as the issues determined in the
arbitration, there are issues which were not adjudicated
upon in the
arbitration.
[28]
For these reasons, the appeal must be upheld.
1 The appeal is
upheld with costs.
2 The order of the
high court is set aside and in its stead is substituted the following
order:
‘
The
special plea is dismissed with costs’.
3 The matter is
referred back to the high court for adjudication on the particulars
of claim and the substantive defence.
______________
L
V THERON
JUDGE
OF APPEAL
APPEARANCES
For
Appellant: J A Van der Westhuizen
Instructed by:
Weavind &Weavind,
Pretoria
Matsepes,
Bloemfontein
For
Respondents: W J De Bruyn
Instructed
by:
Cowan-Harper Inc,
Johannesburg
Lovius
Block Attorneys, Bloemfontein
[1]
Simply
stated the requirements are
eadem
persona
(same person),
eadem
causa pretendi
(same cause) and
eadem
res
(same right).
National
Sorghum Breweries Ltd (t/a) Vivo African Breweries v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA);
Bafokeng
Tribe v Impala Platinum Ltd & others
1999 (3) SA 517 (BH).
[2]
See
African
Wanderers Football Club
(Pty)
Ltd v Wanderers Football Club
1977
(2) SA 38
(A) at 45E-F.
[3]
Kommissaris
van Binnelandse Inkomste v Absa C Bank Bpk
1995 (1) SA 653
(A) at 670I-671B;
Smith
v Poritt & others
2008 (6) SA 303
(SCA) para 10.
[4]
[2014]
2 All SA 26
(SCA) para 14.
[5]
Kommissaris
van Binnelandse Inkomste
,
supra
,
at 669F-H.
[6]
Supra
.
To cling to doctrines of old authorities with literal formalism is
irreconcilable with the development of the law to provide
for
requirements of new factual situations. (My translation.)
[7]
Smith
v Poritt & others
2008 (6) SA 303
(SCA) para 10.
[8]
This
list is set out in
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 654.
[9]
Ferreira
v Minister of Social Welfare
1958 (1) SA 93
(E) at 95H-96A.
[10]
Section
60
of the Act provided that a contribution order may be made against
a respondent, who is defined as a person legally liable to maintain
or to contribute towards the maintenance of a child.
[11]
Shokkos
v Lampert NO
1963 (3) SA 421
(W) 425H- 426A.
[12]
See
also
Cassim
v The Master & others
1960 (2) SA 347
(D) at 355A-D.
[13]
Rail
Commuters Group & others v Transnet Limited & others
2006 (6) SA 68
(C)
at
82H-83A.
[14]
2004
(1) SA 454
(W) para 34.
Man
Truck & Bus
was followed in
Kruger
& another v Shoprite Checkers
(65/05)
[2006] ZANCHC 114
(26 May 2006) where a close
corporation and its sole member were found to be privies.
[15]
Brand
JA in
Prinsloo
,
did not find it necessary to decide whether the principle, as
endorsed in
Man
Truck
,
that a privy included the sole member of a close corporation, was
correct.
[16]
[2012]
ZASCA 28
para 23. See also the comments made by Botha JA in
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 676B-E, referred to in para 26 above.
[17]
Caesarstone
Sdot-Yam Ltd v World of Marble and Granite 2000 CC & others
2013 (6) SA 499
(SCA) para 43.
[18]
Ibid
para 2.
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government
2009 (3) SA 577 (SCA).
[19]
Para
23.