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[2014] ZASCA 110
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Pratt v Firstrand Bank Limited (696/13) [2014] ZASCA 110 (11 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 696/13
Reportable
In
the matter between
ANNE
ELIZABETH MARY
PRATT
.............................................................................
APPELLANT
and
FIRSTRAND
BANK
LIMITED
....................................................................................
RESPONDENT
Neutral
citation:
Pratt v Firstrand Bank Ltd
(696/13)
[2014] ZASCA 110
(11 September
2014)
Coram:
Mpati P, Maya, Shongwe and Zondi JJA
and Schoeman AJA
Heard:
28 August 2014
Delivered:
11 September 2014
Summary
:
Estoppel –
res judicata
– requirements for successful reliance on
exceptio
rei judicatae
– plaintiff seeking
declarator that agreement concluded with defendant invalid –
plea of invalidity of agreement raised
to defendant’s
counterclaim for payment of contract amount – agreement held
not to be invalid and summons dismissed
– plea to counterclaim
amended but still alleging invalidity of agreement – same issue
arising between same parties
- defendant entitled to rely on
exceptio
.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Fabricius J sitting as court of first instance):
1
The appeal is dismissed with costs, which shall include the costs of
two counsel where employed.
JUDGMENT
Mpati
P (Maya, Shongwe and Zondi JJA and Schoeman AJA concurring):
[1]
This appeal concerns the validity of a loan agreement concluded
between the appellant and the respondent (FirstRand). During
2001 the
appellant owned 30 per cent of the shares in a local company known as
Anne Pratt and Associates (Pty) Ltd (the company).
The balance of the
shares was held by an off-shore entity, Fast Track Trust (the Trust),
which was registered in the Isle of Man.
The appellant was a
beneficiary of the Trust. With a view to restructure her affairs, the
appellant consulted FirstRand, a commercial
bank, in or about August
2001. On 6 September 2001 she and FirstRand concluded an
agreement in terms of which the latter
lent and advanced to her a sum
of R25 million. This amount was to be paid to a close corporation,
Classy Living Investments CC
(Classy Living), which would then
acquire the Trust’s 70 per cent shares in the company. The
payment to Classy Living was
for the acquisition by the appellant of
a member’s interest in it. Further agreements were concluded
between the parties
as well as between FirstRand and the only trustee
of the Trust, the terms of which are not germane for the
determination of this
appeal. In accordance with the appellant’s
directions the loan amount, in the form of its equivalent in US
Dollars, was transferred
directly into an account held by the Trust
in Jersey in the Channel Islands.
[2]
It appears that upon due date for the repayment of the loan the
appellant failed to honour her obligation. Consequently, FirstRand
indicated its intention to take steps to enforce the relevant terms
of the agreement. On 25 September 2003, however, the appellant
took a
pre-emptive step and issued summons out of the then Transvaal
Provincial Division of the High Court, seeking an order declaring
the
loan agreement to be null and void. She alleged in her particulars of
claim that the agreements ‘were entered into and
carried out
without any exemption or permission granted by the Treasury (as
defined in regulation 1 of the Exchange Control Regulations)
or a
person authorised by the Treasury’.
[1]
The appellant averred further, inter alia, that the agreements, or
their implementation, constituted a transaction or transactions
whereby capital, or a right to capital, was directly or indirectly
exported from the country in contravention of regulation 10(1)(
c
)
[2]
of the Exchange Control Regulations (regulations). The loan agreement
was consequently illegal and thus null and void.
[3]
FirstRand denied in its plea that the agreement constituted a
transaction or transactions falling within the ambit of regulation
10(1)(
c
).
In addition, it pleaded, in the alternative, that the Minister of
Finance had, in terms of regulation 22E,
[3]
delegated the powers and functions conferred upon Treasury in respect
of regulation 10(1)(
c
)
to the Governor of the Reserve Bank or the South African Reserve Bank
(Reserve Bank). The alternative plea continued that the
Reserve Bank,
in particular its exchange control department, acting in pursuance of
the delegated powers, issued exchange control
rulings applicable to
authorised dealers;
[4]
that in terms of exchange control ruling E5(C)(
a
)
[5]
FirstRand was permitted,
[6]
in accordance with the requirements of regulation 10(1)(
c
),
to remit through normal banking channels, the local sale or
redemption proceeds of non-resident owned assets in the country;
and
that FirstRand was accordingly permitted to conclude and implement
the transactions in issue.
[4] FirstRand also
raised a counterclaim against the appellant, claiming payment of the
loan amount and ancillary relief, as well
as a conditional
counterclaim based on unjust enrichment. The enrichment claim does
not feature in this appeal. The appellant’s
plea to the
counterclaim contained a denial of liability on the grounds that the
loan was void because it contravened the provisions
of, inter alia,
regulation 10(1)(
c
) of the regulations. On 31 January 2007 the
parties proceeded to trial, having agreed to a separation of issues
in terms of rule
33(4) of the Uniform Rules of Court. They formulated
the following issues, which I have paraphrased, for adjudication by
the court:
(a) Do the
agreements constitute transactions falling within the ambit of
regulations 3(1)(
e
) and 10(1)(
c
) [of the regulations]?
(b) If so, did
FirstRand have permission to conclude such agreements and/or was
FirstRand exempted by the provisions of regulation
10(1)(
c
)?
(c) If not, were the
agreements a contravention of regulation 10(1)(
c
)?
(d)
If so, did the contravention of regulation 10(1)(
c
)
result in the agreements being null and void?
[5]
On 5 April 2007 the court (Mokgoatlheng AJ), to which I shall, for
convenience, refer as ‘the trial court’, answered
the
questions as follows:
‘
(a)
The agreements . . . constitute transactions falling within the ambit
of Regulation 10(1)(
c
).
(b) [FirstRand] had
permission to conclude the agreements.
(c) The agreements
did not contravene Regulations 3(1)(
e
) and 10(1)(
c
),
consequently they are not null and void.’
The
court, however, made no determination in respect of the appellant’s
plea to FirstRand’s counterclaim, although the
parties seemed
to have been in agreement that the answers to the questions would be
dispositive of the matter.
[6]
The appellant appealed to this court against the trial court’s
decision. The appeal was unsuccessful. On 7 April 2010
(19 months
after this court had dismissed the appellant’s appeal) the
appellant delivered a notice of intention to amend
her plea to
FirstRand’s counterclaim. FirstRand objected to the intended
amendment, but leave was subsequently granted to
the appellant by the
North Gauteng High Court (Goodey AJ) to amend her plea accordingly.
It was, in essence, pleaded in the amended
plea to the counterclaim,
that FirstRand had devised and implemented the transactions on behalf
of the appellant with the intention
of circumventing regulation
10(1)(
c
)
and that, consequently, the agreements, including the loan agreement,
were illegal and thus null and void. In this regard, it
was alleged
that FirstRand, as authorised dealer, was required, in terms of
ruling E5(A)(i)((
a
)
[7]
of the Exchange Control Rulings, to scrutinise the securities related
to the transactions to which the appellant was a party, to
ensure
that they were concluded at arm’s length and at a
market-related price. The transaction for the sale of the shares,
so
it was alleged, ‘comprised part of a composite transaction
which constituted a loop structure which, to the knowledge
of
[FirstRand], was prohibited in terms of the [regulations] and Rulings
as applied in practice’. In the alternative, it
was alleged
that FirstRand had exceeded its authority as an authorised dealer to
remit the proceeds of the sale of the 70 per cent
shareholding in the
company through normal banking channels, in that it knew that the
transaction was not at arm’s length
and that the sale of the
shares was not at market-related value. The result was that the
transaction occurred without the necessary
permission of Treasury.
Consequently, so it was pleaded, the agreements, including the loan
agreement, were illegal and thus
invalid.
[7]
FirstRand replicated to the amended plea, contending that the issues
raised by the appellant were
res
judicata
. Once again issues were
separated in the matter and the court below (Fabricius J) was asked
to adjudicate on the question whether
the issues raised in the
amended plea to the respondent’s counterclaim were
res
judicata
. The court below upheld the
plea of
res judicata
,
with costs, and declared that ‘the question of the validity of
the loan agreement, in the context of Regulation 10(1)(
c
)’
had already been determined by two courts (the trial court and this
court). This appeal is with the leave of the court
below.
[8]
It is well to state at this stage that as regards a plea of
res
judicata
the enquiry is not whether the judgment, which is relied upon as
having decided an issue that has been raised in subsequent
proceedings,
is right or wrong, but simply whether there is a
judgment.
[8]
In
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government, Gauteng
2009 (3) SA 577
(SCA) it was said that the ‘underlying
ratio
of the
exceptio
rei judicatae vel litis finitae
is
that where a cause of action has been litigated to finality between
the same parties on a previous occasion, a subsequent attempt
by one
party to proceed against the other on the same cause of action should
not be permitted’.
[9]
The
exceptio
may therefore be raised successfully by one party in a later suit
against another who is demanding the same relief on the same
cause of
action, or where the ‘same issue’ had been adjudicated
upon, which really comes to the same thing.
[10]
The fundamental question in this appeal is, therefore, whether the
same issue was involved in the appellant’s amended plea
to
FirstRand’s counterclaim as was the case in the main action,
which was dismissed by the trial court in a decision that
was later
confirmed by this court.
[9]
In my view, the answer must be in the affirmative. In
African
Farms
Steyn CJ said the following:
‘
The
rule appears to be that where a court has come to a decision on the
merits of a question in issue, that question, at any rate
as a
causa
petendi
of the same thing between the same parties, cannot be resuscitated in
subsequent proceedings. Where, for instance, the
causa
or
quaestio
is ownership, the claimant, if his case is that he has the ownership
through inheritance, would not, according to
Dig.
44.2.11 para. 5, be instituting a new claim by alleging donation, for
no matter in what way he may have acquired the ownership,
his right
to it would be finally disposed of in the first action.’
[11]
In
the present matter the real
causa
or
quaestio
is the validity of the agreement. However, I am prepared to accept,
for present purposes, the argument advanced by counsel for
the
appellant, that the issue in the previous hearing (before the trial
court) was whether or not FirstRand had permission to conclude
and
implement the agreement with the appellant. That FirstRand did, as a
fact, have such permission and that therefore regulation
10(1)(
c
)
had not been contravened was established before the trial court. This
was done through the evidence of Mr Andreas Ribbens, an
official in
charge of exchange control at FirstRand and with whom the general
manager in the Exchange Control Department of the
Reserve Bank
liaised in relation to any issue not dealt with through the normal
day-to-day structures of their respective banks.
[10]
Although the order sought by the appellant in her amended plea to
FirstRand’s counterclaim was a dismissal of the counterclaim,
the basis for that order was set out as follows in the penultimate
paragraph of the amended plea:
‘
The
plaintiff reiterates and confirms that the loan agreement, as
amended, was illegal and was and is, at all times, null and void
for
one or more or all of the reasons pleaded in paragraph 2 of the
plaintiff’s Plea to [FirstRand’s] Claim in
Reconvention.’
[12]
In
my view, this clearly shows that the appellant, in her amended plea,
sought a determination on the validity of the agreement,
which was an
issue that had already been decided by the trial court and by this
court on appeal. Counsel for the appellant submitted,
however, that
the appellant’s new defence to FirstRand’s counterclaim
was different to the cause of action that was
contained in her main
claim. The new defence was that FirstRand, represented by one of its
employees, Mr Martin Versfeld (Versfeld),
with the intention of
circumventing the provisions of regulation 10(1)(
c
),
devised and implemented the transactions (agreement) on behalf of the
appellant with the knowledge that the sale of the shares
was not at
arm’s length; was not at market-related value and constituted a
loop structure that was prohibited under the regulations.
FirstRand
had therefore acted fraudulently, so counsel argued. Thus, whereas
the issue before the trial court was the absence or
otherwise of
permission for FirstRand to conclude and implement the agreement, the
issue before the court below was FirstRand’s
fraudulent act in
the whole scheme. For this reason, counsel urged us to extend the
ambit of the
exceptio rei judicata
by relaxing the common law requirements necessary for its invocation.
[11]
It is now settled that in an appropriate case the strict requirements
of the
exceptio
, especially those of the ‘same relief’
and the ‘same cause of action’ may be relaxed, in which
event the
term ‘issue estoppel’ has been adopted. In
Smith v Porritt
2008 (6) SA 303
(SCA) this court explained the
position as follows:
‘
Following
the decision in
Boshoff
v Union Government
1932 TPD 345
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 enquiry 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 the
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”.’
[13]
[12]
Counsel for the appellant submitted that there is no commonality
between the issue (of permission) which the trial court was
called
upon to determine and the issue of fraud, upon which the court below
was required to adjudicate. Accordingly, so the argument
continued,
FirstRand could not rely on the defence of
res
judicata
in the form of issue estoppel,
since the issue of fraud had never been decided by the trial court,
or this court.
[13]
Before the court below counsel sought to lead the evidence of the
appellant and one Mr Alexander Bruce-Brand, a former general
manager
of the Reserve Bank. Counsel informed the court that the appellant’s
testimony would relate to the circumstances
surrounding the
introduction of the amendment and ‘to other questions of
fairness and equity’ which were to be taken
into account in
determining whether she ought to be permitted to introduce the new
defence. That would entail the question as to
what occurred before
the trial court; why the issue was not introduced earlier and the
consequences to the appellant if she was
not permitted to proceed
with the litigation.
[14]
As to Mr Bruce-Brand, counsel informed the court that his testimony
would be limited to assisting the court to understand the
ambit of
the new issue, which was intended to be introduced. Mr Bruce-Brand
would also be asked about the loop structure and ‘how
that
would affect the pleaded case’. Further, he would explain what
was entailed in the loop structure averment and, on a
hypothetical
basis, explain what the attitude of the regulator of the Reserve Bank
would be in a situation where a party ‘had
knowledge and
deliberately set out to contravene exchange control [regulations]’.
Mr Bruce-Brand would also corroborate the
appellant on the timing of
his availability as her witness. It may be mentioned that a rule
36(9)(
b
)
[14]
notice was filed in respect of expert evidence that would be tendered
by Mr Bruce-Brand. It was indicated in the notice that Mr
Bruce-Brand
would differ with certain aspects of the evidence of Mr Ribbens,
which had stood uncontested at the trial.
[15]
The court below refused to allow the evidence sought to be led. It
said the following in this regard (at para 9 of the judgment):
‘
During
the proceedings before me, and after due consideration of the
relevant facts, I decided that this evidence was irrelevant
and
therefore inadmissible. Ms Pratt gave no evidence in the original
proceedings and her Counsel preferred not to challenge the
evidence
of Mr Ribbens. Having regard to the issues that were before the trial
Court and the Supreme Court of Appeal, I fail to
see how that
evidence could be of any relevance herein. Apart from that, it would
be grossly unfair to the Bank to allow such evidence
at this stage of
the proceedings . . . .’
I
can find no fault with the views expressed by the court below.
Counsel for the appellant, however, contended that if the appellant
were not to be allowed to litigate further – in the sense of
not being permitted to lead the evidence she sought to place
before
the court below – this court will be giving its
imprimatur
to a fraudulent transaction.
[16] The essence of
Mr Ribbens’s uncontested evidence was that at the relevant time
FirstRand had the necessary permission
to conclude and implement the
agreement with the appellant. Despite the fact that the appellant and
his legal team were given advance
notice of the nature of the
evidence to be given by Mr Ribbens at the trial, Mr Ribbens was not
cross-examined and the appellant
did not testify. On the strength of
the testimony of Mr Ribbens and the contents of available
documentation the trial court came
to the following conclusion (at
para 143 of the judgment):
‘
In
my view the plaintiff has not proven on a balance of probabilities
that [FirstRand] knew that the amount of R25 000 000
significantly exceeded the fair value of the 70% shareholding held by
Fast Track Trust in [the company] by adducing expert evidence
to that
effect. Consequently the valuation report submitted by the Third
Party commissioned by the plaintiff validates and authenticates
the
value of the sale transaction of the 70 % shareholding by Fast Track
Trust to Classy Living as reasonable and fair, and certifies
that the
transaction was concluded at arm’s length, and at a market
related price as contemplated in Exchange Control Regulation
Ruling
E5(A)(i)(a).’
[17]
As has been indicated above, the trial court’s order was the
subject of an appeal to this court, where counsel’s
argument on
these issues appears in the following passage from the judgment of
Heher JA:
‘
But
Mr Puckrin submitted that [FirstRand] had fallen short of the
requirements [in ruling E5(A)(i)(
a
)]
by failing to scrutinise the transactions carefully and have sight of
the documentary evidence in order to ensure that the agreements
were
concluded at arm’s length (which, he submitted, they were not)
and at market-related prices (which he likewise submitted
was not the
case).’
[15]
This
court did not interfere with the findings of the trial court that the
sale of the shares was at arm’s length and at a
market-related
price, but held that it could not, on a fair reading of Mr Ribbens’s
evidence, ‘conclude that the measure
of [FirstRand’s]
scrutiny of or insight into documents fell short of what the Reserve
Bank regarded as sufficient’.
[18]
With these findings it is difficult to understand how it could still
be alleged in the appellant’s amended plea to FirstRand’s
counterclaim that FirstRand had knowledge of the fact that the sale
of the shares was not at arm’s length and not at a
market-related
price. But, in any event, even if that were so, the
appellant would have been party to the alleged devising of the
transactions,
by FirstRand, represented by Versfeld, with the
intention of circumventing the provisions of regulation 10(1)(
c
).
The fact of FirstRand’s knowledge of the alleged fraudulent
conduct was therefore at the appellant’s disposal at
the time
that she instituted action seeking an order declaring the agreement
to be invalid, and when her original plea to FirstRand’s
counterclaim was formulated. She failed to raise it as a defence to
the counterclaim when she could, and ought to, have done so.
Her
attempt to introduce the defence by way of the amendment at issue
violates the so-called ‘once-and-for-all’ rule,
which is
to the effect that ‘[t]he law requires a party with a single
cause of action to claim in one and the same action
whatever remedy
the law accords him upon such cause’. The reason for the rule
is precisely to ‘prevent inextricable
difficulties arising from
discordant or perhaps mutually contradictory decisions due to the
same suit being aired more than once
in different judicial
proceedings’.
[16]
The appellant ultimately seeks a finding that the agreement is null
and void and therefore invalid, while there is an existing
order that
it is not invalid.
[19]
The question of the loop structure is also but a red herring.
Assuming that the transactions constituted a loop structure (which
was denied by FirstRand), the evidence that was sought to be led
through Mr Bruce-Brand would in any event not have proved that
the
agreement was illegal. In the rule 36(9)(
b
)
notice it was stated that the evidence would be that where an
authorised dealer came across a loop structure it was obliged to
report the matter to the Reserve Bank, which would then give
directions on how the loop structure was to be unwound and, if
applicable,
the Reserve Bank would impose a penalty. There was
therefore no indication that Mr Bruce-Brand would testify that an
agreement
such as the one in issue and which involves a loop
structure is invalid.
[20]
Counsel for the appellant conceded during argument that the aim in
the appellant seeking to introduce the new defence was for
an
opportunity to show that through its alleged fraudulent conduct,
which would have been in contravention of the provisions of
regulation 10(1)(
c
),
FirstRand could never have had permission to export the proceeds of
the sale of the shares in the company. Thus, what would be
the
essential element in the further litigation were the appellant to be
permitted to introduce her new defence, namely the absence
or
otherwise of permission to export the proceeds of the sale, has
already been decided by the trial court, whose judgment was
confirmed
by this court. As was said in
African
Farms
,
what the appellant proposes to do ‘is to obtain a reversal of
the decision of the same question by advancing different reasons;
but
different reasons leading to a different conclusion cannot affect the
identity of the question to be decided’.
[17]
It follows that the court below was correct in refusing to allow the
appellant to lead the evidence she sought to place before
it on the
basis that it was irrelevant. The court was also correct in declaring
that the question of the validity of the loan agreement,
in the
context of regulation 10(1)(
c
),
had been finally decided and was thus
res
judicata
.
[21]
Since the parties had agreed before the trial court that the question
of the validity of the agreement would be dispositive
of the matter,
the trial court should have found for FirstRand on the counterclaim.
The matter should then have proceeded to trial
on the quantum of
FirstRand’s counterclaim. One can only hope that that is the
direction the parties will now follow.
[22]
In the result, the appeal is dismissed with costs, which shall
include the costs of two counsel where employed.
_____________________
L
MPATI
PRESIDENT
APPEARANCES
For
appellant: L N Harris (with him A D Steyn)
Instructed
by: Van Zyl Hertenberger Inc, Johannesburg
Kramer,
Weihmann & Joubert Inc, Bloemfontein
For
respondent: P Louw
Instructed
by:Routledge Modise Inc, Johannesburg
Matsepes
Inc, Bloemfontein
[1]
In
the Schedule to the Exchange Control Regulations promulgated in
terms of the Currency and Exchange Act 9 of 1933, in GN R1111,
published in
Government
Gazette Extraordinary
123 of 1 December 1961, the definition reads: ‘“Treasury”,
in relation to any matter contemplated in these
regulations, means
the Minister of Finance or an officer in the Department of Finance
who . . . deals with the matter on the
authority of the Minister of
Finance.’
[2]
The
relevant part of the regulation reads:
‘
10
Restriction on export of capital
(1)
No person shall, except with permission
granted by the Treasury and in accordance with such conditions as
the Treasury may impose
–
. . .
(c)
enter into any transaction whereby capital or any
right to capital is directly or indirectly exported from the
Republic.’
[3]
It
provides:
‘
22E
Delegation of powers
(1)
The Minister of Finance may delegate to
any person any power or function conferred upon the Treasury by any
provision of these
regulations or assign to any such person a duty
imposed thereunder to the Treasury.
(2)
The Treasury shall not be divested of any
power or function or duty delegated to any person under
sub-regulation (1) and may at
any time withdraw or amend any
decision taken by any such person in the exercise or performance of
the power or function or duty
in question.’
(3)
[4]
In
the Schedule to the regulations ‘“authorised dealer”
means, . . . in respect of any transaction in respect
of foreign
exchange, a person authorised by Treasury to deal in foreign
exchange’.
[5]
The
ruling reads: ‘The local sale or redemption proceeds of
non-resident owned assets in South Africa may be regarded as
remittable through normal banking channels . . . .’
[6]
The
respondent is listed in rule 3 of the Orders and Rules under the
Exchange Control Regulations issued under GN R1111 of 1 December
1961 as an appointed authorised dealer.
[7]
The
ruling, in essence, draws the attention of authorised dealers to
regulation 10(1)(
c
)
and requires them to carefully scrutinise all securities related
transactions between a resident and a non-resident whereby
capital
is directly or indirectly exported from the Republic in order to
ensure that such transactions are concluded at arm’s
length
and at market-related prices.
[8]
See
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 564C-D.
[9]
Para
21.
[10]
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA), per Olivier JA at 239 para 2 and the cases there
cited.
[11]
At
562D-E.
[12]
Paragraph
2 of the amended plea contains the allegations that the transaction
for the sale of the shares in the company was not
at arm’s
length; was not market-related and constituted a prohibited loop
structure.
[13]
Para
10.
[14]
Rule
36(9)(
b
)
of the Uniform Rules of Court.
[15]
Para
19.
[16]
Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
(A) at 472A-E.
[17]
At
p 563C-D.