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[2014] ZASCA 195
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Holford v Carleo Enterprises (Pty) Ltd and Others (977/2013) [2014] ZASCA 195 (28 November 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
no: 977/2013
In
the matter between:
BASIL
A
HOLFORD
.........................................................................................................
APPELLANT
and
CARLEO
ENTERPRISES (PTY)
LTD
...........................................................
FIRST
RESPONDENT
LARIMAR
GROUP LTD (formerly
PUTCO
HOLDINGS
LTD)
..........................................................................
SECOND
RESPONDENT
PUTCO
LTD
.....................................................................................................
THIRD
RESPONDENT
P
BLIEDEN
N.O
...........................................................................................
FOURTH
RESPONDENT
M
M JOFFE N.O.
….........................................................................................
FIFTH
RESPONDENT
C
H J BADENHORST N.O.
…........................................................................
SIXTH
RESPONDENT
Neutral
citation:
Holford v Carleo
Enterprises
(977/2013)
[
2014]
ZASCA 195
(28 November 2014)
Coram:
Maya, Shongwe and Saldulker JJA and Mathopo and
Gorven AJJA
Heard
:
4 November 2014
Delivered:
28 November 2014
Summary:
Review of award of arbitration appeal
panel – whether the appeal panel exceeded its powers –
whether the appeal panel
committed a gross irregularity –
application of requirements for review.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Jansen AJ sitting as court of first instance):
1
The appeal is upheld with costs, such costs to include the costs of
two counsel where employed.
2
The order of the North Gauteng High Court is set aside and
substituted with the following order:
‘
The
application is dismissed with costs.’
JUDGMENT
Gorven
AJA (Maya, Shongwe and Saldulker JJA and Mathopo AJA concurring)
:
[1]
This appeal concerns the approach to be
taken in an application which seeks to review and set aside the
decision of an arbitrator.
Such an application was brought before
Jansen AJ in the North Gauteng High Court, Pretoria. In that
application, only the limited
grounds afforded by s 33(1)(
b
)
of the
Arbitration Act 42 of 1965
applied. This section reads as
follows:
‘
(1)
Where-
(b)
an arbitration tribunal has committed
any gross irregularity in the conduct of the arbitration proceedings
or has exceeded its powers…
the
court may, on the application of any party to the reference after due
notice to the other party or parties, make an order setting
the award
aside.’
These
are narrow grounds for interference in an arbitral award and must be
strictly construed. As was said by O’Regan ADCJ
in
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews & another
:
[1]
‘
Given
the approach not only in the United Kingdom (an open and democratic
society within the contemplation of
s 39(2)
of our Constitution), but
also the international law approach as evinced in the New York
Convention (to which South Africa
is a party) and the UNCITRAL
Model Law, it seems to me that the values of our Constitution will
not necessarily best be served
by interpreting s 33(1) in a manner
that enhances the power of courts to set aside private arbitration
awards. Indeed, the contrary
seems to be the case. The international
and comparative law considered in this judgment suggests that
courts should be careful
not to undermine the achievement of the
goals of private arbitration by enlarging their powers of
scrutiny imprudently. Section
33(1) provides three grounds for
setting aside an arbitration award: misconduct by an arbitrator;
gross irregularity in the conduct
of the proceedings; and the fact
that an award has been improperly obtained. In my view, and in the
light of the reasoning in the
previous paragraphs, the Constitution
would require a court to construe these grounds reasonably strictly
in relation to private
arbitration.’
[2]
The
approach of this court to a review of an arbitration award is settled
and consistent with this dictum. As was succinctly summarised
by
Harms DP in
Telcordia
Technologies Inc v Telkom SA Ltd
:
[2]
‘
By
agreeing to arbitration parties to a dispute necessarily agree that
the fairness of the hearing will be determined by the provisions
of
the Act and nothing else.
.
. . .
Last,
by agreeing to arbitration the parties limit interference by courts
to the ground of procedural irregularities set out in
s 33(1) of the
Act. By necessary implication they waive the right to rely on any
further ground of review, “common law”
or otherwise.’
[3]
It is as well to set out the procedural
history of the matter. The appellant, who had been in senior
management with the third respondent,
instituted action in the South
Gauteng High Court, Johannesburg against the first respondent. The
appellant claimed that he had
sustained damages from the breach of an
agreement he had concluded with the first respondent. The pleadings
had closed, further
particulars had been sought and supplied by the
parties and the matter had been set down for trial. On the appointed
day, there
was no judge available and the parties concluded a written
agreement referring the matter to arbitration. It also contained a
provision
for an appeal from the decision of the arbitrator. After
hearing evidence, the arbitrator granted absolution from the instance
on the basis that the appellant had failed to prove the agreement on
which he had relied in the pleadings. The appeal tribunal upheld
the
appeal against this finding and awarded the appellant damages in the
sum of R3 848 000 along with interest and costs.
The first
three respondents then brought an application to review and set aside
the award of the appeal tribunal. The court below
granted this
relief, set aside the award of the appeal tribunal and thereafter
granted leave to appeal to this court.
[4]
The basis of the judgment was that the
appeal tribunal had both exceeded its powers and committed a gross
irregularity. It must
be said that the judgment, although long, does
not clearly set out the issues in question or employ clear reasoning
in arriving
at these conclusions. The crisp issue on appeal is
whether the court below was correct in these findings. The fourth to
sixth respondents,
who constituted the appeal tribunal, took no part
in the matter, either in the court below or in this court. For the
sake of convenience,
I shall refer to the first three respondents as
‘the respondents’.
[5]
The respondents relied on a three-pronged
attack against the approach of the appeal tribunal. Two were based on
the appeal tribunal
having exceeded its powers and the third was
based on its having committed a latent gross irregularity. The first
was to the effect
that, because the issues were defined in the
arbitration agreement as being those that arise on the pleadings, the
appeal tribunal,
in finding that an agreement which was not pleaded
in the particulars of claim had been concluded, exceeded its powers.
The second
was that, sitting as an appeal tribunal, it was bound by
factual findings made by the arbitrator unless it could point to a
‘demonstrable
and material misdirection on fact’ by the
arbitrator. In disregarding the factual finding to the effect that no
oral agreement
was concluded, without doing so, the appeal tribunal
therefore exceeded its powers. The third was that the appeal tribunal
failed
to properly deal with a non-disclosure by the appellant in
s 311 proceedings, failed to analyse correspondence between
August
and November 2002 and, finally, failed to deal with the need
of the appellant to replicate and prove that increased earnings which
he would otherwise not have received should not be taken into account
to reduce any damages he may have sustained as a result of
the
breach. In the result, it was submitted that the appeal tribunal
arrived at findings which no reasonable arbitrator could have
come to
and thus committed a latent gross irregularity.
[6]
The appellant’s claim was for damages
alleged to have been sustained as a consequence of the breach of an
agreement whereby
he would acquire 3 percent of the shares in
the second respondent when it was constituted as an empowerment
company. The agreement
was pleaded as follows in the particulars of
claim:
‘
4.1
During or about the period June 2002 until June 2005 and at or near
Sandton, the plaintiff, acting personally, and the first
defendant .
. . concluded an oral agreement, the material express, alternatively
tacit, further alternatively implied terms of
which were as follows:
4.1.1
the shareholding in the third defendant, alternatively in a new
entity to be formed, would be structured so as to provide
for the
participation of:
4.1.1.1
various black economic empowerment role players;
4.1.1.2
the senior management of the third defendant including the plaintiff;
4.1.1.3
the first defendant;
4.1.1.4
and certain of the employees of the third defendant;
4.1.2
the plaintiff would receive 3% of the issued share capital in the
third defendant or the new entity so formed;
4.1.3
the plaintiff would be required to pay par value for the plaintiff’s
shares;
4.1.4
the first defendant, as the majority shareholder, alternatively as
the sole shareholder in the third defendant, was obliged
to ensure
that the plaintiff obtained the plaintiff’s shares in the third
defendant or the new entity, as the case may be;
4.1.5
the plaintiff would be obliged to sell the plaintiff’s shares
in such new entity or the third defendant, upon his retirement
from
the third defendant or the new entity, as the case might be, subject
to the pre-emptive rights of the remaining shareholders;
4.1.6
the price for the sale of those shares would be a market related
priced between willing buyer and willing seller.’
As
I have mentioned, the respondents requested further particulars for
trial. In his reply, the appellant set out in detail a series
of
events, with reference to documents, stretching from 2002 to 2005
which, he said, supported the averment of the pleaded agreement
having been concluded during this period.
[7]
The
first of the two submissions that the appeal panel exceeded its
powers is to the following effect. The respondents contended
that the
arbitrator was limited to the agreement pleaded in the particulars of
claim. They submitted that the appeal tribunal impermissibly
broadened the pleadings by reference to the further particulars. In
this regard, paragraph 8 of the reference to arbitration provides
that the dispute referred to arbitration ‘shall be as defined
by the pleadings in the action.’ There is clear law that
pleadings exclude further particulars.
[3]
If nothing further had been said, the matter would have fallen
squarely within the dictum in
Hos+Med
Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing &
Consulting (Pty) Ltd & others
,
[4]
where Lewis JA held as follows:
‘
In
my view it is clear that the only source of an arbitrator's power is
the arbitration agreement between the parties and an arbitrator
cannot stray beyond their submission where the parties have
expressly defined and limited the issues, as the parties have
done in
this case to the matters pleaded. Thus the arbitrator, and
therefore also the appeal tribunal, had no jurisdiction
to decide a
matter not pleaded.’
Where
the pleadings in that matter defined the issues to be decided, it was
held not permissible to broaden the pleadings as could
a court along
the lines set out in
Shill
v Milner
.
[5]
In order to be broadened, the pleadings would have to be amended.
[6]
[8]
The
underlying rationale for the dictum in
Hos+Med
is found in the reference to the source of an arbitrator’s
powers. In an arbitration, the autonomy of the parties is
paramount.
[7]
In
Lufuno
,
O’Regan ADCJ held that:
‘
Parties
are entitled to determine what matters are to be arbitrated, the
identity of the arbitrator, the process to be followed
in the
arbitration, whether there will be an appeal to an arbitral appeal
body and other similar matters.’
[8]
The
powers of an arbitrator therefore derive from the arbitration
agreement. In the present matter, it is accordingly necessary
to
construe the arbitration agreement to determine the ambit of the
powers accorded to the arbitrator. In particular, it must be
determined whether the powers of the arbitrator included the power to
determine issues not arising strictly on the pleadings but
which, as
would be the case with a high court judge, had been broadened by the
appropriate ventilation of issues in accordance
with the principles
set out in
Shill v Milner
.
[9]
Paragraph 21 of the arbitration agreement
reads as follows:
‘
The
arbitrator shall have such powers as are allowed by law to a High
Court of the Republic of South Africa to ensure the just,
expeditious, economical and final determination of the dispute and
shall have all of the powers afforded to a judge of the High
Court of
South Africa in terms of the Uniform Rules read with the provisions
of the
Arbitration Act.’
In
the context of how it came about that the matter was referred to
arbitration and an overall reading of the agreement, it is clear
that
the object of the parties was to have the arbitrator determine the
matter on the same footing as would a judge have done had
one been
available in court that morning. Paragraph 21 is entirely consistent
with, and clearly gives effect to, that object. It
clothed the
arbitrator with powers which placed her or him in the same position
as a high court judge dealing with a matter in
the high court. As was
put to counsel during the hearing before us, a construction of the
arbitration agreement as a whole, and
that paragraph in particular,
indicates that what the parties intended was simply a change of venue
and presiding officer and nothing
more. Since a court would have been
entitled to apply the principles set out in
Shill v Milner
,
the arbitrator was also entitled to do so. Accordingly, the
arbitrator was entitled to allow the issues on the pleadings to be
broadened by proper ventilation where no prejudice ensued to either
party as a result.
[10]
The broadening of the issues in line with
the further particulars was foreshadowed in the appellant’s
opening address. No
objection was raised to this approach by the
respondents at the time or at any time thereafter. The respondents at
no stage contended
that they had suffered prejudice as a result of
the broadening of the issues. The respondents did not contend that
the issues were
not fully and properly ventilated. In the result, it
cannot be held that the appeal tribunal exceeded its powers in
finding that
an agreement, not fully pleaded in the particulars of
claim, had been concluded.
[11]
The
second respect in which the respondents submitted that the appeal
tribunal exceeded its powers was in its treatment of findings
of fact
on the part of the arbitrator. It was submitted that the appeal
tribunal was only entitled to interfere with factual findings
if
there was a ‘demonstrable and material misdirection on fact’
by the tribunal of first instance.
[9]
The respondents contended that the appeal tribunal interfered with
factual findings of the arbitrator without referring to any
such
misdirections. Special reliance was placed on what was said to be the
factual finding that no oral agreement as pleaded had
been proved.
[12]
In
this regard, the crucial part of the award concerns whether agreement
had been reached to contract on a certain basis while agreeing
to
leave outstanding matters to future negotiation or whether the
parties contemplated that consensus on the outstanding issues
would
have to be reached before a binding agreement came into
existence.
[10]
The arbitrator
found that the latter position applied saying ‘[i]t is quite
apparent from the earlier correspondence that
the parties regarded
the manner and circumstances in which the members and management
would dispose of their shares as an important
feature of their
proposed acquisition of the shares’. He further held that it
was ‘inconceivable that the parties could
have intended to
conclude an agreement entitling the members of senior management to
acquire shares in the proposed company without
reaching agreement
upon the terms upon which they would acquire, hold and dispose of
such shares’.
He
held, specifically, with reference to the documents and the evidence
of the appellant, that the parties, far from reaching agreement
on
certain terms and leaving others open for negotiation, ‘intended
that there must be agreement at the very least on the
terms upon
which the members of senior management could acquire, hold and
dispose of the shares, before a binding contract came
into
existence.’ Since, he said, no such agreement was ever reached,
no agreement came into existence.
[13]
The appeal tribunal found that the
appellant and three other senior managers accepted an offer
communicated to them by way of a
letter dated 2 August 2002.
This letter communicated a resolution taken by the first respondent
on 31 July 2002 that ‘subject
to shareholders approval [it
would] sell its Putco shares at not less than R4,00 each to a new
limited company not listed to be
formed under conditions detailed
hereunder . . . .’ The conditions were, inter alia, that the
shares of ten cents each would
be allocated as to 17.5 percent to
‘Senior Management comprised of 7 individuals to be nominated
at 2.5% each’ and
that those shareholders wishing to sell must
first offer the shares to other existing shareholders. The tribunal
disagreed with
the finding of the arbitrator that the letter of 2
August 2002 was not an offer made with the intention to contract and
that no
agreement had been concluded. It found that an agreement that
the appellant would obtain a 3 percent shareholding in the
‘restructured
and empowered entity runs like a golden thread
through all the significant documents . . . They straddle the various
empowerment
models – commencing with the MCI deal, SAFIKA and
finally the successful one in terms of which Putco’s management
and
staff would be owning 43% of the company’.
[14]
It
is so that the appeal tribunal was limited to the powers of an appeal
court. In general terms, an appeal court is bound by factual
findings
of a trial court. However, various factors militate against an
inflexible approach in this respect. In
President
of the Republic of South Africa v South African Rugby Football
Union
,
[11]
this issue was ventilated and the following principles emerged:
a)
A distinction must be drawn between the ‘subjective manner in
which a witness testifies orally, as opposed to the objective
content
of the evidence so given.’
[12]
b)
If a finding is based on the demeanour of the witness (the subjective
manner mentioned above), this is a ‘tricky horse
to ride’
[13]
and not determinative without regard to other factors, including the
probabilities.
[14]
c)
There may be a misdirection of fact by the trial judge where his or
her reasons are unsatisfactory or the record shows that he
or she
overlooked other facts or probabilities.
[15]
[15]
In the first instance, the appeal tribunal
found the arbitrator’s answer to a key question demonstrably
wrong where he held
that the letter of 2 August 2002 was ‘simply
a notification to senior management of a resolution’ taken by
the company.
This flies in the face of direct, unchallenged and
uncontradicted evidence of the appellant that, when the letter was
given to
the senior management at a meeting by Mr Carleo, the senior
management indicated that they accepted the offer contained in that
letter. There was no evidence that, when they did so, Mr Carleo
demurred on the basis that what they purported to accept was not
an
offer made with the requisite intention to contract.
[16]
In addition, the finding of the arbitrator
that there was only a series of proposals without any firm agreement
flies in the face
of the acceptance of the proposal of senior
management dated 21 October 2002 by the resolution of 11 November
2002 of the
Board of the first respondent. This proposal allocated 3
percent of the shareholding to 4 members of the executive management
group,
including the appellant, and 2 percent of the shareholding to
3 members of the executive management group. It also dealt with other
material aspects, including how any sale of the shareholding to be
thus acquired would take place. The Board resolved ‘[t]hat
the
letter of the Putco Senior Management with regard to the Empowerment
Project dated 21 October 2002, be approved in its entirety.’
It
cannot be communicated more clearly that this was intended to give
rise to an enforceable agreement.
[17]
In the third place, the arbitrator himself
indicated that his findings were based on an analysis of the
documents and not on the
subjective way in which the witnesses
testified. He held that, ‘[i]n my view, the issue of whether or
not a contract was
concluded can be decided based upon the contents
of these documents and the evidence of the plaintiff.’ In such
circumstances,
the appeal tribunal was in as good a position as was
the arbitrator and it was not necessary to find that he had committed
a material
misdirection before it could draw its own conclusions.
[18]
The net result of these three factors is
that it was not shown that the appeal tribunal was not entitled to
interfere with the factual
findings of the arbitrator and,
accordingly, it was not shown that the tribunal had exceeded its
powers in this respect. As Harms
DP explained:
‘
[I]
t
is a fallacy to label a wrong interpretation of a contract, a wrong
perception or application of South African law, or an incorrect
reliance on inadmissible evidence by the arbitrator as a
transgression of the limits of his power. The power given to the
arbitrator
was to interpret the agreement, rightly or wrongly; to
determine the applicable law, rightly or wrongly; and to determine
what
evidence was admissible, rightly or wrongly.’
[16]
The
second ground of attack was therefore without merit and should have
been rejected by the court below.
[19]
As regards the question of a latent gross
irregularity, the respondents submitted that the appeal tribunal
misconceived the nature
of its enquiry. It also failed to deal
properly with the omission of the appellant, in the
s 311
proceedings, to mention the existence of the agreement. In essence,
they submitted and the court below found, that the findings
of the
appeal tribunal were incorrect in so many respects that the only
reasonable inference to draw was that it had committed
a latent gross
irregularity. The court below held that the factual and legal
findings of the appeal tribunal were ‘erroneous
in a number
respects.’ It went on to hold that:
‘
[G]iven
all the factual and legal errors made by the Appeal Panel which the
applicants highlighted in argument - cannot it be said
that the
Appeal Panel misconstrued the entire nature of the enquiry and did
not fully understand the reasoning of the arbitrator?
Can it not be
said that the cumulative effect of errors is so drastic that the
Appeal Panel’s award falls foul of the provisions
of
section 33
of the
Arbitration Act relied
upon by the applicants?’
[20]
The
starting point in determining whether a gross irregularity has been
committed is set out in
Ellis
v Morgan
[17]
where
Mason J laid down the basic principle:
'But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial,
such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and
fairly
determined.'
The
real question concerning a gross irregularity is to determine whether
there was a flaw in the conduct of the proceedings rather
than only a
flaw in the reasoning of the appeal tribunal.
[18]
[21]
The
respondents contended for a latent gross irregularity. As has been
said by this court:
[19]
‘
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by
s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry
or arrived at an unreasonable result. A result will only
be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves sufficient
for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable.’
[22]
The respondent relied mainly on the appeal
tribunal having ignored the probabilities concerning the
section 311
proceedings and its failure to analyse correspondence between August
and November 2002. In addition, it was submitted that, since
the
respondents had pleaded that the appellant had benefitted from an
improved package as a result of the alleged breach, he was
obliged to
replicate facts by which the additional income said to arise from the
breach should not be applied in reduction of his
damages. Because he
had not done so, it was submitted, the appeal tribunal committed a
latent gross irregularity in awarding him
the damages which it did.
[23]
It
was correctly submitted that a latent gross irregularity involves the
‘failure by the arbitrator to take into account a
material
fact’ and ‘includes the converse situation of taking into
account a materially irrelevant fact.’
[20]
Otherwise, the decision must be ‘substantively unreasonable in
the sense that no reasonable commissioner, acting reasonably,
could
have reached the decision on the evidence and the inferences drawn
from it.’
[21]
[24]
The approach to the
section 311
proceedings
does not meet that test. The appeal tribunal, having expressed
disquiet at the appellant’s conduct, quite correctly
held that
the failure of the appellant to mention the agreement in those
proceedings did not impact on the veracity of his uncontested
and
unchallenged evidence that the senior management had accepted the
proposal of 2 August 2002 or on the objective evidence in
terms of
which the company, in its resolution of 11 November 2002,
accepted the proposal of senior management of 31 October 2002.
As regards the analysis of the correspondence, this was specifically
referred to by the appeal tribunal in its award, albeit in
summarised
form containing a reference to the relevant documents in a footnote.
The analysis of the correspondence gave rise to
the conclusion of the
panel of the ‘golden thread’ referred to in its award.
The appeal tribunal also dealt with the
point taken by the respondent
that the appellant had received funds which he would not have
received but for the breach. It held
that factually he did not become
a party to the third respondent’s executive compensation
scheme. Any additional income was
derived from and incentive scheme.
The funds received therefore did not result from the breach. None of
these amounted to a failure
to take into account a material fact or
its converse.
[25]
In addition, taken as a whole, the appeal
tribunal’s decision cannot be said to have been substantively
unreasonable. It cannot
be said that no arbitrator, acting
reasonably, could have reached the decision reached by the appeal
tribunal. It clearly understood
the nature of the enquiry and cannot
be said to have undertaken it in the wrong manner. The result was not
unreasonable.
No gross irregularity on the
part of the appeal tribunal, whether latent or otherwise, was
therefore demonstrated.
[26]
It was not shown that the appeal tribunal
exceeded its powers in either of the respects contended for by the
respondents. Nor was
it shown that the appeal tribunal committed a
gross irregularity. Accordingly, no basis was laid under
s 33(1)(
b
)
of the
Arbitration Act for
reviewing and setting aside the award of
the appeal tribunal. It follows that the court below erred in doing
so.
[27]
In the result, the following order is
granted:
1
The appeal is upheld with costs, such costs to include the costs of
two counsel where employed.
2
The order of the North Gauteng High Court is set aside and
substituted with the following order:
‘
The
application is dismissed with costs.’
T
R Gorven
Acting
Judge of Appeal
Appearances
For Appellant: A
Subel SC (with him A C Botha)
Instructed
by:
Louis
Gishen & Associates, Sandton
Lovius
Block Attorneys, Bloemfontein
For
Respondent: P N Levenberg SC (with him A Lapan)
Instructed
by:
Werksmans
Incorporated, Sandown
Matsepes
Inc., Bloemfontein
[1]
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews & another
2009
(4) SA 529
(CC) para 235.
[2]
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA) paras 50 & 51.
[3]
Ruslyn
Mining & Plant Hire (Pty) Ltd v Alexkor Ltd
[2012]
1 All SA 317
(SCA) para 18.
[4]
Hos+Med
Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing &
Consulting (Pty) Ltd & others
[2007] ZASCA 163
;
2008
(2) SA 608
(SCA) para 30.
[5]
Shill
v Milner
1937
AD 101
at 105. This decision referred with approval to the earlier
decisions to similar effect in
Robinson
v Randfontein Estates GM Co Ltd
1925
AD 173
at 198 and
Wynberg
Municipality v Dreyer
1920
AD 439
at 443.
[6]
Hos+Med
para
31, 32.
[7]
Telcordia
para 4.
[8]
Paragraph
219.
[9]
The
submission was couched in these terms, relying on
Fourie
v Firstrand Bank Ltd
2013
(1) SA 204
(SCA) para 14 and other cases.
[10]
GCEE
Alsthom Equipments et Enterprises Electriques, South African
Division v GKN Sankey (Pty) Ltd
1987 (1)
SA 81 (A) at 92A-F.
[11]
President
of the Republic of South Africa v South African Rugby Football Union
& others
2000
(1) SA 1 (CC).
[12]
Paragraph
77.
[13]
Paragraph
78, quoting
S
v Kelley
1980 (3) SA 301
(A) at 308B-D.
[14]
Paragraph
79.
[15]
Paragraph
80, quoting
R
v Dhlumayo
&
another
1948
(2) SA 677
(A) at
706.
[16]
Telcordia
para
86.
[17]
Ellis
v Morgan; Ellis v Desai
1909
TS 576
at 581.
[18]
Sidumo
& another v Rustenberg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) para 264.
[19]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
2013
(6) SA 224
(SCA) para 25. The notion of a latent irregularity was
first introduced by Schreiner J in
Goldfields
Investment Ltd v City Council of Johannesburg
1938
TPD 551.
[20]
Herholdt
para
16.
[21]
Herholdt
para
26, quoting the court below in that matter.