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[2013] ZASCA 73
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Road Accident Fund v Myhill NO (505/2012) [2013] ZASCA 73; 2013 (5) SA 399 (SCA); [2013] 4 All SA 9 (SCA) (29 May 2013)
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THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
505/2012
Reportable
In the matter between:
ROAD
ACCIDENT
FUND
......................................................................................
Appellant
and
ADVOCATE ELE MYHILL, NO
(S[…]
MINORS)
.....................................................................................................
Respondent
Neutral citation:
Road
Accident Fund v Myhill
NO
(505/2012)
[2013]
ZASCA 73
(29 May 2013)
Coram:
Brand,
Shongwe and Leach JJA and Willis and Van der Merwe AJJ
Heard:
3
May 2013
Delivered:
29
May 2013
Summary: Contract ─
rescission of a contract concluded on behalf of a minor to settle
minor’s claims ─ defendant
sued not entitled to set-off
against claims brought on behalf of minor by a custodian parent any
amount personally owed to it by
the parent ─ settlement
concluded on basis of such set-off and without making any allowance
for real prospect of minor requiring
future medical treatment ─
settlement substantially prejudicing minor ─ settlement set
aside.
O R D E R
On
appeal from:
South
Gauteng High Court, Johannesburg (Strydom AJ sitting as a court of
first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
J U D G M E N T
LEACH JA (BRAND and
SHONGWE JJA, WILLIS and VAN DER MERWE AJJA concurring)
[1] The
appellant is the Road Accident Fund, an organ of state established
under
s 2(1)
of the
Road Accident Fund Act 56 of 1996
, having as its
primary function the provision of compensation to persons injured
through the negligent driving of motor vehicles.
The crisp issue
arising in this appeal is whether agreements settling the claims for
damages brought against the appellant on behalf
of two minors should
be recognised as binding or set aside. The high court held that they
should be set aside, but granted the
appellant leave to appeal to
this court.
[2] On
20 March 1997, Ms S[…] S[…] (‘the plaintiff’)
and her two children, P[…] and L[…]
S[…],
[1]
respectively aged two years and four months at the time, sustained
bodily injuries when they were run down by a motor vehicle.
According
to the plaintiff, the incident occurred on or alongside an unpaved
road in Katlehong as she was walking facing oncoming
traffic. She
alleges that she was carrying L[...] on her back and holding P[…]
by the hand when a motor vehicle, which approached
from the rear,
moved onto its incorrect side of the road and collided with them.
[3] Both
P[...] and L[...] were hospitalised as a result of head injuries they
sustained in this collision. Not surprisingly, the
plaintiff also
appears to have been injured, although the nature and severity of her
injuries were not canvassed in the court a
quo. Be that as it may, in
due course the plaintiff consulted an attorney, Ms Cynthia
Chabana of Germiston, whom she instructed
to claim compensation from
the appellant. Ms Chabana proceeded to complete the prescribed claim
forms in respect of a personal
claim of the plaintiff and separate
claims by her in her capacity as mother and natural guardian of
P[...] and L[...]. The claim
forms, together with various supporting
documents, including copies of the police accident report form, plan
and key as well as
the plaintiff’s police statement and an
affidavit by her explaining the circumstances under which the
collision had occurred,
were posted to the appellant on 19 August
1998.
[4] The claims
made on behalf of the minors were not unduly substantial,
totalling
R57 260 for
P[...] and R60 260 for L[...]. The major item of each claim related
to so-called ‘general damages’, in
respect of which R55
000 was claimed on behalf of P[...] and R60 000 for L[...]. The
balance claimed in respect of each child was
made up of R260 for past
hospital expenses, R1 000 for past medical expenses and a further R1
000 for estimated future medical
expenses.
[5] The claims
were dealt with at the appellant’s Randburg branch. On receipt,
a so-called ‘sub-0’ file relating
to the plaintiff’s
personal claim was opened. Into this were placed two sub-files,
respectively numbered as the ‘01’
and ’02’
files, each of which related to the claim of one of her children. The
claims were then forwarded for assessment
and were allocated for that
purpose to Mr Ambrose Dickenson, a senior claims handler.
[6] Following
the appellant’s standard procedure, Mr Dickenson passed the
claims onto a so-called ‘office’ operating
under him for
initial assessment. The office he selected was staffed by a claims
handler, Siphiwe Khumalo, and a claims assistant,
Adri Oosthuizen,
who proceeded to seek further information from Ms Chabana. This
led to the office preparing assessments
in respect of both P[...] and
L[...]’s claims. Due to a lack of supporting documentation, no
allowance was made for hospital
or medical expenses and the
assessments related solely for general damages. In respect thereof,
an amount of R10 000 per child
was suggested.
[7] The
assessments and all available documents were then returned to
Mr Dickenson for him to deal further with the claims.
Agreeing
with the assessments, he authorised Ms Oosthuizen to commence
settlement negotiations and to start the bidding, so to
speak, by
offering R8 000 in respect of P[...]’s general damages and
R7 000 for those of L[...]. However, as the
merits of the claim
had been assessed on the basis that the plaintiff had been partially
to blame for the collision (an issue to
which I shall return in due
course) he further instructed that the amounts offered should be
reduced by 30% to cater for the plaintiff’s
contributory
negligence. Even though he accepted that the claims of the two minor
children could not be subject to an apportionment,
Mr Dickenson
testified that it was the appellant’s standard practice to do
so in these circumstances as it eliminated having
to subsequently sue
custodian parents for a contribution in respect of amounts paid to
their children.
[8]
Accordingly, on 21 April 1999, Ms Oosthuizen wrote to attorney
Chabana offering to settle the children’s claims by paying
R5 600 in respect of P[...] (R 8000 less a 30%
deduction of R2 400 in respect of an apportionment) and R4 900
in respect of L[...] (R7 000 less a 30% apportionment of
R2 100). An additional sum of R1 350 per claim was offered
as a contribution towards the plaintiff’s costs.
[9] For some
inexplicable reason the plaintiff was not called to testify in the
court below to explain what had happened when these
offers were
received, and one is left to infer that attorney Chabana probably
recommended that they should be accepted. In any
event, on 10 May
1999 the plaintiff, in her capacity as P[...] and L[...]’s
mother and natural guardian, signed discharge
forms accepting the
offers. Pursuant thereto, on 18 May 1999 the amounts concerned were
paid to attorney Chabana. Unfortunately
P[...] and L[...]
derived no benefit from this as we were informed that attorney
Chabana had subsequently disappeared together
with the amounts she
had received on behalf of the plaintiff. Sad though that this may be,
it can bear no reflection upon the issues
to be decided.
[10] Time
passed, and some 10 years later a practising advocate, the
respondent, was appointed as curator ad litem to represent
P[...] and
L[...] in civil proceedings against the appellant. In due course the
respondent issued summons, seeking an order setting
aside the
settlements and claiming substantial damages for the two children
arising out of their injuries. Inter alia, it was alleged
in the
summons that at the time the offers of settlement were made, a sum of
R850 000 would have been fair and reasonable
compensation for
each child. Before the matter came to trial the parties agreed that
the issue of liability should be determined
at the outset as a
separate issue, with the issue of damages standing over for later
decision if needs be. An order to that effect
was made, and the trial
in the court a quo proceeded solely in regard to the so-called
‘merits’ of the claim.
[11] In
seeking to set aside the settlement agreements, the respondent relied
on three alternative causes of action: first, that
the agreements
were void or voidable due to mistake; second, that they were
prejudicial to the interests of the two children; and
third, that in
making the offers, the appellant had breached a statutory duty to
investigate the nature and extent of the injuries
suffered by the
children and their consequences, and to offer them reasonable
compensation. The court a quo appears to have been
somewhat sceptical
about the sustainability of the first and third of these, but found
in favour of the respondent on the second.
The correctness or
otherwise of its decision in that regard was the sole issue debated
in the appeal. It is to this issue that
I now turn.
[12] The
principles relating to the rescission of a contract concluded on
behalf of a minor are well established and do not need
to be dealt
with in any detail. Suffice it to say that the parties were correctly
agreed that a contract may be set aside under
the
restitutio
in integrum
if it
is shown that it was prejudicial to the minor at the time it was
concluded.
[2]
In that regard, it is necessary to show that the prejudice suffered
was serious or substantial. As Boberg states ‘to succeed
in a
claim for restitution, the minor must show that the transaction
against which he or she objects was inimical from its inception’.
[3]
[13] Of
course in considering the issue of prejudice in a case such as this,
a court must guard against being wise after the event
and taking into
account factors unknown at the time the claims were settled. In the
present case, at the time the claims were compromised
the only
medical information available in regard to the nature and severity of
the children’s injuries and the sequelae thereof
was that
contained in the medical report section of the prescribed claim forms
and the children’s hospital records.
[14] The
prescribed medical reports in both cases were compiled by a Dr Snide
of the Natalspruit Hospital. He recorded that both
children had
suffered head injuries that were ‘serious’. Dr Snide’s
competence to assess the severity of head
injuries was questioned on
appeal, counsel for the appellant pointing out that he was an
orthopaedic surgeon not a neurosurgeon,
and that he had recorded that
P[...] had been unconscious whereas her hospital records reflect that
she had been conscious an hour
or so after the injury had been
sustained. Dr Snide did not testify, and there is thus no
explanation for this possible contradiction.
But more importantly,
there is no reason to think that an orthopaedic surgeon, who is after
all a trained medical specialist, was
not able to recognise and
evaluate whether a head injury should be regarded as ‘minor’,
‘fairly severe’
or ‘severe’ ─ those
being the three standard categories set out in the medical report.
Moreover P[...] was hospitalised
for ten days after the collision and
L[...] for six days. These periods at first blush indicate that
their head injuries
were by no means insubstantial.
[15]
Importantly the hospital records show that after P[...] and Lufuna
had been released from hospital, the plaintiff alleged that
both had
undergone seizures on various occasions. This complaint had led to a
Dr Levuno examining P[...] in October 1998, but although
he recorded
his opinion that whatever fits she might have had were not related to
the accident, subsequent entry in P[...]’s
hospital records of
a complaint by the plaintiff that P[...] had twice had seizures
throws some doubt on this. The plaintiff described
two incidents, the
most recent in August 1998, where a seizure was accompanied by
‘uprolling of the eyeballs.’ According
to the evidence of
Ms Adan, a neurophysiologist who testified in the court below, this
was a classic description of a general tonic
chronic epileptic
seizure. The plaintiff’s complaint in this regard led to
arrangements being made for P[...] to go to an
epilepsy clinic on 14
October 1998 and for her to be booked for an electro-encephalogram,
an examination used to diagnose abnormal
activity in the brain
typical of epileptic seizures. Unfortunately her hospital records are
incomplete. There is no report from
the epilepsy clinic and it is not
known whether P[...] received the encephalogram or, if she did, what
it showed.
[16] Turning
to L[...], Dr Snide’s report reflected that she was suffering
from concussion on admission to hospital and that
she was referred
for neuro-observation. An impact wound to the occipital area was
noted. This is consistent with the plaintiff’s
statement
submitted to the appellant that a portion of L[...]’s scalp was
removed. Whatever L[...]’s symptoms may have
been, it was
decided to perform a CT scan later that day. It showed an infarct in
the parietal area of the brain just behind the
frontal lobe where a
blood clot obstructing the blood flow in that area caused the tissue
around it to die. It was accepted that
a child with a focal injury
such as this would be at a higher risk of developing post-traumatic
epilepsy. Indeed in L[...]’s
case as well, the plaintiff
subsequently took her back to the hospital and complained that she
had twice had seizures. L[...],
too, was booked for an
electro-encephalogram and was to attend the epileptic clinic at the
hospital on 14 October 1998. However,
as was the case with her
sister, the results of these investigations were not available.
[17] In
assessing the general damages of each child at R10 000, Mr
Dickenson and his office were guided by a list of recommended
awards
for general damages used by the appellant at the time. In respect of
a fracture of the base of the skull, a sum of R8 640
was
suggested in cases with minor after-effects and R10 800 in cases
involving moderately severe after-effects. For a fracture
of the
parietal area of the skull, it recommended R9 720 in cases of
minor after-effects and R14 040 in the event of
there being
moderate after-effects. How these guideline figures had been arrived
at was unexplained. It is of some relevance
that Mr Dickenson
did not know what an infarct was and clearly he did not appreciate
the severity of L[...]’s injury. He
also incorrectly thought
that the occiput, the site of L[...]’s external injury, was at
the front part of her head.
[18] Be that
as it may, although the evidence of Mr Dickenson was somewhat
ambivalent about the issue, it appears that possible
epilepsy was not
taken into account by the appellant’s staff in the assessment
of the children’s general damages. This
is borne out by the
appellant’s assessment forms and the failure to make any
allowance in respect of future medical expenses.
Indeed appellant’s
counsel was driven to argue that epilepsy had been disregarded as, on
the medical records available to
the appellant at the time, it had
not been positively diagnosed. That may be so, but the medical
information available indicated,
as I have said, that they had each
sustained a head injury that was by no means insubstantial and had
required hospitalisation
of some duration. Moreover, not only had
L[...] suffered an infarct in the brain but the plaintiff had
complained that both children
had suffered epileptic seizures. This
complaint could not just be ignored for purposes of a compromise.
Post-traumatic epilepsy
is a complication wholly consistent with head
injuries such as those the children had suffered. Any reasonable
assessment of the
children’s damages should therefore have
taken into account that there was a real possibility that they had
developed post-traumatic
epilepsy.
[19] Taking
that possibility into account, the amounts of R8 000 and R7 000
offered as an assessment of the general damages
of the two children
were not only substantially less than the appellant’s own
assessment of the claims but were, in my view,
wholly inadequate. In
reaching that conclusion I am aware that substantial increases in
awards have occurred since 1999 and that
it is necessary to consider
what would have been reasonable then and not now. But the amounts
offered, even then, would have been
appropriate only for
substantially less severe cases, and certainly not in cases where
there were indications of post-traumatic
epilepsy.
[20]
It is neither necessary nor desirable to deal with the issue of the
general damages any further. Suffice it to say that I am
satisfied
that the offer to settle P[...]’s general damages at R8 000
and those of L[...] at R7 000 was wholly
inadequate and that,
had the real possibility of them having suffered epilepsy as a result
of their injuries been taken into account
as it should have been, a
reasonable assessment of their damages would probably have
substantially exceeded the appellant’s
assessment of R10 000.
[21]
The failure to take epilepsy into account is also crucial in a
further respect. The compromise made no allowance in respect
of
future medical expenses. There was direct evidence before the court a
quo that the cost of treating epilepsy could amount to
R1 000
per month and, that being so, in the event of epilepsy manifesting
itself, the amounts at which the claims were settled
would be wholly
inadequate. Even if on the medical information available epilepsy was
no more than a real possibility and not a
probability, that does not
mean future medical treatment could be discounted in settling the
claims. It is well established
that in actions arising out of
bodily injuries involving prospective loss, a plaintiff is not
required to prove on a preponderance
of probability that such loss
will in fact occur and a court in assessing future loss may make a
contingency allowance for the
possibility of it occurring.
[4]
Moreover, the real possibility of future medical expenses could
easily have been catered for by the appellant providing a
certificate
in respect of future medical expenses under
s 17(4)
(a)
of the Act. Indeed, such certificates are tailor made to deal with
any uncertainties that might arise in cases such as this. In
the
absence of a certificate or any other provision for the real
contingency that future medical expenses might be incurred
to
treat both children for epilepsy in the future, the settlements were
obviously to P[...] and L[...]’s prejudice.
[22] Then
there is the fact that the already parsimonious amounts offered were
reduced by a further 30% to cater for an apportionment
against the
plaintiff herself. One does not know on what basis the appellant
concluded the plaintiff had been 30% to blame for
the collision. On
the plaintiff’s version (that the vehicle swerved across the
road and ran her and the children down
from the rear while they were
either close to the edge or indeed off the road) it is hard to see
how it could have been concluded
that she had been negligent to any
degree. Unfortunately the appellant’s assessment of the merits
of the collision was in
the plaintiff’s sub-0 file and no copy
was available in the sub-files of the two injured children that were
handed in as
exhibits in the court below. In addition, for some
inexplicable reason the merits assessment was neither called for nor
debated
in any detail in the court below. When asked about it, Mr
Dickenson had a vague recall that it had been based on an allegation
that the plaintiff had moved into the road with the children. But
even if such an allegation had been made, its source is a mystery.
It
is certainly wholly inconsistent with all the police documentation.
Be that as it may, for present purposes I am prepared to
accept that
the 30% apportionment which the appellant sought to apply was based
on a bona fide assessment of the plaintiff’s
negligence and was
not merely a groundless attempt on the part of the appellant to
reduce the extent of its liability. Even so,
it is another matter
whether it was entitled to apply an apportionment against P[...] and
L[...]’s damages.
[23] The
general principle is trite that in order for set-off to operate
between two parties there should be reciprocal indebtedness
which, if
both debts are equal, leads to their mutual discharge or, if they are
not equal, to the larger being reduced by the amount
of the
smaller.
[5]
It is also trite that individuals in their personal capacities
are treated as different persons from when they act in representative
capacities. Consequently ‘a debt owed by or to a person
in his individual capacity cannot be set-off against a debt
owed to
or by the same person in a representative capacity whether as
executor, trustee, custodial parent, stakeholder or however’.
[6]
[24]
Despite this, the appellant argued that it had been permissible as an
exception to the general rule for it to set-off any amount
it could
recover from the plaintiff in her personal capacity from what it owed
her in her capacity as mother and natural guardian
of her two minor
children. In advancing this contention the appellant relied on Voet
16:2:8 the opening passage of which
reads as follows:
[7]
‘
Set-off
in cases of ─
(i)
Guardian’s claim against own debtor and debt of ward. ─
Furthermore a
guardian who sues against his own debtor in his own name is not held
liable to suffer set-off of what his own ward
owes to the opponent
sued.
(ii)
Guardian’s claim for debt to ward and his own debt. ─
Nor
does what a guardian claims in the name of his wards from a debtor to
the wards undergo set-off of what the guardian owes in
his own
personal name to such debtor of the wards.
(iii)
Guardian’s debt to creditor who is also in debt to ward. ─
But
if a guardian is sued in his own name by his own creditor who is
likewise a debtor of the ward, the position is rather that
set-off is
allowed of that which the guardian owes against that which is owed to
his own ward.
’
[25] The
appellant relied solely upon Voet’s opinion in
(iii)
above as authority
for its argument. However, not only does that passage appear to be
inconsistent with the principle set out in
(ii),
but it flies in the face of the well-established general principles
of set-off just mentioned ─ which are consistent with
what is
set out in
(i)
and
(ii).
It is therefore not surprising that the principle espoused in
(iii)
has been the
subject of trenchant criticism. Christie refers to it as being an
authority ‘of doubtful validity’
[8]
while Wessels, in his seminal work on the law of contract, states
‘the debts are in (such a) case not mutual, and it seems
difficult to reconcile the opinion of Voet with . . . the
general principle’.
[9]
Wessels further points out that Voet’s opinion in this regard
follows that of Faber and that ‘[t]here is no evidence
that the
Roman-Dutch Law recognised Faber’s principle.’
[10]
[26]
Wessels suggests that Voet favoured the principle suggested by Faber
as both were of the opinion that its operation would
not prejudice a
minor.
[11]
It seems to me, however, that the prejudice to a minor in a case such
as the present is obvious; the amount of an innocent
minor’s
claim against a defendant would be diminished by reason of the fault
of another. In my view even if the underlying
premise on which Voet
and Farber based their opinions reflected the views of their time, it
cannot be regarded as valid today.
[27]
Indeed more than a century ago the author of a case note published in
the South African Law Journal, in referring to
Voet
16:2:8, commented that ‘when the tutor on behalf of the ward
sues A, A cannot demand that what the tutor personally
owes him shall
be set-off against the claim now made’.
[12]
Similarly Wessels states:
[13]
‘
Hence,
if a guardian demands a debt due to his ward, the minor’s
debtor cannot claim to set-off what is due to him by the
guardian in
his own right and not in his capacity as guardian
.’
[28] Not
only has this been accepted as a correct reflection of the law for
many years
[14]
but there seems to me to be no reason in principle why the general
rules of set-off, which exclude a debt owed by or to an individual
in
his personal capacity being set-off against a debt owed by or that
person in a representative capacity, should not operate in
respect of
claims brought by custodian parents on behalf of their minor
children. Not to apply the general rule can only be to
the
disadvantage of any such minor. While there do not appear to be any
reported decisions advancing the contrary conclusion, I
think the
time has now come for this court to put the matter beyond doubt and
to rule that a debtor liable to a minor child, when
sued by the
child’s custodian parent, may not set off against its liability
to the child any amount that it may personally
be owed by the
custodian parent.
[29] That
being so, it was impermissible to reduce the appellant’s
liability to P[...] and L[...] by way of setting off against
their
claims the alleged personal liability of the plaintiff to it it
arising from contributory negligence on her part, and the
two
children were clearly prejudiced by it having done so.
[30] Of course
the mere fact that the claims were settled in amounts less than what
they were worth does not in itself lead to the
inexorable conclusion
that the settlement agreements should be rescinded. Weighed in the
scale must also be the inherent advantages
of compromising a claim.
The old adage that a bird in the hand is worth two in the bush is all
too frequently true in respect of
litigation which is, by its very
nature, fraught with unforeseen difficulties. All too often the
anticipated strength of a case
wilts during the progression of a
trial. Not only do witnesses both err and make unmerited concessions,
but the assessment of general
damages and future losses are matters
of discretion upon which opinions may validly differ. All in all, the
prediction of the outcome
of a claim for damages for bodily injuries
is not a matter for the fainthearted and is incapable of accurate
determination. A value
judgment has to be made and, bearing in mind
that a settlement not only does away with the inherent uncertainties
of litigation
but also limits the escalation of costs and brings
about an immediate payment rather than one forthcoming at some
future, uncertain
stage, it is often best to settle even if the
amount offered is less than what is hoped would be finally awarded.
[31]
Nevertheless, despite the advantages attendant upon settling P[...]
and L[...]’s claims even before the issue of summons,
in my
view the agreements fall to be rescinded. The relatively trifling
amounts at which the children’s claims were settled
bear no
realistic relationship to the measure of their damages, regard being
had to the nature and severity of their injuries and
the very real
prospect that they could experience epilepsy in the future. Although
a court should always be cautious in interfering
with compromises
seriously concluded, there was in my view such substantial prejudice
suffered by P[...] and L[...] that the agreements
cannot be allowed
to stand. Accordingly the court below correctly concluded that they
should be set aside.
[32] The
appeal is dismissed with costs, including the costs of two counsel.
L
E Leach
Judge
of Appeal
APPEARANCES:
For Appellant:
M Patel (with him J Schwartz)
Instructed
by:
Lindsay
Keller Attorneys, Rosebank
Matsepes
Inc, Bloemfontein
For
Respondent: B Ancer SC (with him A Berkowitz)
Instructed
by:
Norman
Berger & Partners Inc, Highlands North,Johannesburg
Lovius,
Block Attorneys, Bloemfontein
[1]
For convenience I intend to refer to the two
minors simply by their first names. No disrespect is intended.
[2]
See in this regard Van Heerden
et
al Boberg’s Law of Persons And The Family
(2
nd
ed) pg 724 and the authorities there collected at footnote 278, and
Boezzart
Child Law in South Africa
pg
30.
[3]
At 724-725.
[4]
See
Jowell
v Bramwell-Jones
[2000] 2 ALL SA 161
(A) para 23,
Blyth
v Van den Heever
1980 (1) SA 191
(A) at 225E-226B and
Burger
v Union National South British Insurance Co
1975 (4) SA 72
(W) at 75D-F.
[5]
Blakes Maphanga Incorporated v Outsurance
Insurance Company Ltd
[2010] 3 All SA
383
(SCA) para 14.
[6]
Christie
The Law of
Contract in South Africa
6
th
ed at 498.
[7]
Voet
Commentary On
The Pandects
(Gane’s
translation) 16:2:8.
[8]
Christie at 498.
[9]
Wessels
Law of
Contract in South Africa
(2
nd
ed) vol 2 § 2517.
[10]
Referring to Van Leeuwen
Censura
Forensis
1.4.36.20; Pothier
Obligation
s 594
; Demolombe
Contrats
vol 5 n 561.
[11]
See Gane at 157.
[12]
South African Law Journal (Vol 20) 1903, 55 at
56.
[13]
§2515.
[14]
Cf
Exley
v Exley
1952 (1) SA 644
(O) at 647A-C.