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[2013] ZASCA 93
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Knox D'Arcy AG and Another v Land and Agricultural Development Bank of South Africa (654/12) [2013] ZASCA 93; [2013] 3 All SA 404 (SCA) (5 June 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 654/12
Reportable
In the matter between:
KNOX D’ARCY AG
................................................................
First
Appellant
KNOX D’ARCY LIMITED
.................................................
Second
Appellant
and
LAND AND AGRICULTURAL
DEVELOPMENT
BANK OF SOUTH AFRICA
.........................................................
Respondent
Neutral citation:
Knox
D’Arcy AG v Land and Agricultural Development Bank of SA
(654/12)
[2013] ZASCA 93
(05 June 2013)
Coram:
LEWIS, MAYA, PETSE
JJA, ERASMUS and SWAIN AJJA
Heard:
7 May 2013
Delivered:
05 June 2013
Summary:
Contract – interpretation – whether
appellants proved compliance with the provisions of a written
agreement entitling
them to a cession of book debts by respondent –
issue arising not pleaded – necessity and purpose of pleadings
restated.
________________________________________________________
ORDER
___________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (Makgoba J sitting as court of first
instance):
The appeal is dismissed with
costs that include the costs of two counsel.
___________________________________________________________
JUDGMENT
___________________________________________________________
MAYA JA (LEWIS, PETSE JJA,
ERASMUS and SWAIN AJJA concurring):
[1] This appeal is the latest
step in various, protracted court skirmishes between the parties. The
appellants appeal against a
judgment of the North Gauteng High Court,
Pretoria (Makgoba J) which dismissed their claim for a cession of
book debts worth R123
million and payment of all funds received from
debtors in respect of those debts, alternatively payment of the sum
of R123 million
and interest. The appeal is with the leave of the
court below.
[2] The two appellants are part
of the Knox D’Arcy Group of companies which conducts business
as profit improvement implementation
consultants worldwide. The first
appellant is a Swiss company that carries on business as an
international management consultant.
The second appellant was
incorporated according to the company laws of South Africa and has
its principal place of business in
Johannesburg. It provides
administration and marketing services to and carries out its
consultancy assignments in South Africa
through the first appellant.
The respondent (the Land Bank) is a State owned corporate entity. It
is mainly concerned with promoting
and facilitating access to
ownership of land for the development of farming enterprises for
agricultural purposes and provides
financial services and assistance
therefor.
[3] The relationship between the
parties commenced on 25 June 2002 when they concluded a written
agreement in terms of which appellants
would perform certain services
for the Land Bank. Disputes arose and the Land Bank refused to pay
the balance owing for the services
rendered. The Land Bank further
refused to have the disputes referred to arbitration as provided for
in the agreement. The appellants
then launched court proceedings,
which the Land Bank opposed, for a declaration that the disputes were
subject to arbitration.
Subsequently, the appellants brought contempt
proceedings and other interlocutory applications against the Land
Bank. The parties
ultimately settled all this litigation in terms of
a written agreement of settlement dated 7 March 2006, which was made
an order
of court on 19 April 2006.
[4] The material terms of the
settlement agreement read:
‘
1.
The respondent shall pay to first [appellant] the sum of R32 million
… plus VAT on date of signature hereof.
2.
2.1 On date of
signature, and thereafter for a period not exceeding two months, the
parties shall, in the utmost good faith, use
their best endeavours to
identify to the reasonable satisfaction of both parties, R123 million
… worth of commercial debt
in the medium to high and in the
low to medium risk categories, as defined by the respondent’s
Arrears Management System
which meet the following criteria:
2.1.1 either the
respondent has made a 100 percent provision in its accounting books
on the specific loan, in accordance with the
AC 133 accounting
standard; or
2.1.2 the respondent
will not be required, in terms of the AC 133 accounting standard, to
make additional provision as a result
of ceding to the first
[appellant] any of the loans identified;
and the customers’
respective accounts shall have been in arrears for twelve months or
more. (“the identified debt”);
2.2 Notwithstanding
the provisions of 2.1 above, the Parties may agree other alternative
criteria or other commercial debt for purposes
of determining the
identified debt, which for the sake of clarity, shall thereupon be
incorporated in and form part of the identified
debt.
2.3 … in
determining what is reasonable, the respondent shall not be seen as
having acted unreasonably if it disagrees with
a determination of an
account if such a determination would result in the respondent being
required to make additional provision
in its accounting books in
order to comply with AC 133 accounting standard.
2.4 the identified
debt shall be ceded and assigned by respondent to first [appellant]
in terms hereof.
3. …
4. …
5. Once the first
[appellant] and respondent
have identified to the respective
parties reasonable satisfaction
, the identified debt in the full
amount of R123 million … the first [appellant] will, within 7
(seven) days of the identified
debt being ceded and assigned to the
first [appellant] as contemplated herein, pay to respondent
R2 300 000.00 ….
To the extent that the parties may
only be able to agree the identified debt at some lesser amount than
the envisaged R123 million
…, then in that event, the
aforesaid payment to the Respondent shall be reduced proportionately
(my emphasis).
6. If the parties do
not identify any accounts making up the identified debt, the first
[appellant] shall be absolved from paying
the amount of R2,
300,000.00 or any portion thereof to the Respondent.’
[5] The Land Bank duly paid the
sum of R32 million on 16 March 2006 in compliance with clause 1 of
the settlement agreement. It
further furnished the appellants with a
schedule (Annexure “B”), which reflected its itemised bad
debt in the sum of
R142 315 736.68 for consideration as
debt to be ceded to the appellants (the identified debt).
1
[6] However, the parties could
not agree that they had identified debt which met the criteria
prescribed in clause 2.1 of the settlement
agreement.
2
The appellants took the view that
they had. The Land Bank disagreed. This prompted the institution of
the present suit, on 22 September
2006.
[7] But it transpired before the
launch of the action that the Land Bank was in fact recovering the
identified debt. Its rejection
of the appellants’ request to
secure the collected funds pending the resolution of the disagreement
prompted yet another
bout of litigation. The dispute was resolved by
a court order dated 31 August 2006. The Land Bank was ordered, inter
alia, to ‘[r]ing
fence all payments and/or remittances [it]
received … from debtors in respect of R142 million worth of
identified debt detailed
in [Annexure “B”], into a ring
fenced interest bearing account to be held for the account of
whichever party might
ultimately be successful in the proceedings’.
By the time the matter reached this court, the recovered, ring-fenced
funds
amounted to R155 227 275. And the appellants’
claim, now accompanied by a tender to pay the sum of R2.3 million
in
terms of clause 6 of the settlement agreement, had also escalated
from R123 million to the sum of the ring-fenced funds.
[8] At the trial, the court below
identified the issues for adjudication as follows: (a) whether the
parties identified debts which
met the set criteria in clauses 2.1.1
and 2.1.2 on 31 May 2006; (b) whether the appellants proved that the
identified debt described
in Annexure “B” had been or
should have been 100 per cent provided for or impaired (in common
parlance, written off);
(c) whether the Land Bank would be required
in terms of the AC 133 accounting standard (the AC 133)
3
to make additional provision as a
result of ceding any of the identified loans and (d) whether the Land
Bank was in breach of the
terms of the settlement agreement.
[9] The appellants led the
evidence of four witnesses; Mr Richard Steele, Mr Willem Alberts, and
two accounting experts, Professor
Harvey Wainer and Mr Mark
Pinington. Steele testified as follows. He was seconded by the Knox
D’Arcy Group to the first appellant
between 2001 and 2006. His
mandate was to carry out the performance improvement programme for
the Land Bank which was struggling
to recover loans from its debtors.
The programme was three-pronged. The module relevant for present
purposes was designed to improve
the Land Bank’s recoveries
process and reduce its arrear debt.
4
[10] In that process, he obtained
intimate knowledge of the Land Bank’s accounting and debt
recoveries processes, some of
which were designed by him. The systems
implemented by the Land Bank comprised (a) the AC 133; (b) the
doubtful debt provisions
policy (the DDPP) which the Land Bank
adopted by 2003 to comply with the AC 133 for the establishment of
loan loss provision for
irrecoverable debt and, during the same
period, (c) the arrears management system (the AMS), a computer
database programme which
analysed the Land Bank’s entire book
loan in arrears by breaking down and quantifying the arrears into
different categories
to allow monitoring of progress and the
measuring of the recoveries processes. Incidentally, the performance
improvement programme
was successful. With the aid of its new
efficient recoveries processes, the Land Bank recovered a substantial
number of loans it
had written off as irrecoverable and saved an
approximate sum of R501 million per annum.
[11] The effect of the DDPP was
to classify all commercial long term, low to medium and medium to
high risk loans overdue for at
least 12 months as a loss. One hundred
per cent provisioning or impairment was applied to the loans unless
they were well-secured
and legal action had commenced for realisation
of the collateral. The Land Bank’s auditors, Deloitte, verified
that provisioning
of its accounts for the year ended in March 2005
complied with the AC 133. In Steele’s view, the Land Bank could
have so
complied only by applying the DDPP to the debts because if
‘they were not 100% provided for, then they did not comply with
AC 133’. He believed that the provisioning percentages in
Annexure “B”, which were all less than 100 per cent,
were
not the specific provisions required by the DDPP but general
provisions applied to the different loan categories in accordance
with the auditors’ model. He mentioned that the appellants’
efforts to ascertain on which documents the audit was based
from the
Land Bank’s auditors failed.
[12] He compiled a schedule which
contained published accounts of the Land Bank for the years 2001 to
2009. For the year ended 2005
the total provision for long term loans
amounted to R764 million. This meant that there was ‘more than
enough provisions
in the [Land Bank’s] accounts for the
identified debt’ as all long term debt was fully provided for.
The loans in Annexure
“B” fell squarely within that
category despite the different percentages reflected in the schedule.
The Land Bank would,
therefore, not have to make additional provision
for the debt in its account by ceding it to the appellants.
[13] Steele explained that t
he
appellants initially claimed R42 million from the Land Bank. At a
meeting he had with its directors on 18 January 2006, they
offered to
pay the appellants R29.7 million in cash. Through negotiations, the
parties then agreed that the Land Bank would pay
the amount it
tendered and cover the R12.3 million shortfall by ceding to the
appellants debts of the nature described in the settlement
agreement
worth R123 million to which they ascribed the value of ten cents in
the rand. The appellants would keep the profit if
they collected more
than was anticipated. And if they collected less, they would bear the
loss
.
Steele
testified that
Mr
Mukoki,
the Land
Bank’s Chief Executive Officer, and its directors
thought
this
a very good
bargain as they considered the debt completely worthless.
[14] Mukoki undertook at the
meeting that the Land Bank would cede to the appellants loans that
were fully provided for and required
no further provisions on the
settlement agreement. Steele substantiated this claim with an extract
of minutes of the Land Bank’s
board of directors held on 23
February 2006. The minute recorded that:
‘
In
reply to a comment on the debtor’s book to be handed to Knox
D’Arcy, Mr Mukoki advised that it was a book that had
been
written off and the files closed. These debtors were normally handed
over to debt collectors who took what they believed could
be
collected. In addition the amount to be paid to Knox D’Arcy had
been provided for in 2005 year end so would not impact
on the current
year results.’
Mr Vallentgoed, the Land Bank’s
legal recoveries manager, did not dispute Mukoki’s undertaking
when he mentioned it
to him subsequently.
[15] Alberts stated that he was
employed by the Land Bank from 1981 to 2006. In 2004, he was
appointed head of retail and managed
the Land Bank’s loan book
which was then valued at R7 billion. He became acting general manager
of operations in 2006 and
assumed overall responsibility for the AMS.
The official responsible for running the AMS reported to him directly
and informed
him that the DDPP was applied to all loans in the
relevant categories. He saw the relevant supporting documents.
[16] He said he was present at a
board meeting of the Land Bank’s directors where Mukoki
confirmed that the debt to be ceded
was fully provided for and needed
no further provisions in the books. He was certain that the loans in
Annexure “B”
were fully provided for in accordance with
the Land Bank’s policy. He believed Annexure “B” to
be an inaccurate
summary, ‘cut and pasted’ from the
global operational report of all the Land Bank’s loans and
spread sheets indicating
100 per cent provisioning for the relevant
debt that he reviewed on a monthly basis. He surmised that the
schedule was prepared
by the legal department, and not the operations
department that was qualified to do so, ‘to prepare themselves
for the agreement’
with the appellants. The figures reflected
in the schedule were contrary to the Land Bank’s policy.
[17] The appellants’
accounting experts were called to explain whether the requirements of
clause 2.1 of the settlement agreement
were met. According to Wainer,
whose mandate was confined to an examination of clause 2.1.2, the
latter provisions were superfluous
and ‘made no accounting
sense’ because they sought to make provision for a debt that no
longer existed in the Land
Bank’s books of account. He would
not venture an opinion on whether the loans were fully provided for
because he had no access
to the relevant underlying documentation.
[18] Pinington’s evidence
did not go beyond confirming that the Land Bank’s approach to
calculating provision or impairment
for its debt complied with the AC
133 and supporting Wainer’s view on the value of clause 2.1.2.
He said that the provisions
on Annexure “B” were average
based. It transpired during his cross-examination that he had
recourse only to Annexure
“B” and based his opinion that
the debt it reflected was fully provided for on the assumption that
the DDPP had been
applied to it. He did not know if any of the debt
was secured and, if it was, whether the realisation processes would
have commenced
against its collateral. He ultimately conceded that he
was unable to conclude that the loans were or ought to have been
fully provided
for without that information.
[19] The Land Bank called one
witness, Ms Ntsietso Mofokeng. She was the Land Bank’s legal
services and recoveries general
manager during 2006 until she left
the Land Bank in 2008. She believed that Annexure “B” was
prepared by the Land Bank’s
AMS unit at the request of her
department. She had no insight into its compilation. She knew about
the AMS, the DDPP and the AC
133 but disavowed any knowledge of the
manner in which the Land Bank made provision for its loans. She
thought that the percentages
allocated to the different loans in the
schedule were not specific provisions but rather general provisions
made on an average
basis.
[20] She understood the
settlement deal to mean that the Land Bank would cede to the
appellants its irrecoverable debt which had
no value to it,
in
respect of which it had exhausted its recoveries processes, and
would not affect its results by requiring additional provisioning.
She recalled the board meeting of 18 January 2006 which she
said she
attended. According to her, Mukoki meant that whilst the debt to be
ceded would be fully provided for, it nonetheless
still had to be
identified. The debt in Annexure “B” did not meet the
relevant criteria and that was the core of the
dispute. Agreement was
never reached in that respect and Steele was not amenable to her
proposal to explore other criteria to resolve
the impasse as the
settlement agreement allowed.
[21] The court below made adverse
credibility findings against Steele and Alberts and rejected their
evidence. It found Steele unimpressive
for being long-winded,
defensive and incoherent. Alberts’ evidence was jettisoned as
unreliable hearsay because ‘he
relied … on information
acquired from Mr Mukoki and also … a certain individual that
reported to him’. The
court concluded that his entire evidence
was false because he wanted it to believe that the provisioning
percentages in Annexure
“B” ‘were thumb-sucked’
by the Land Bank’s legal department and failed to provide an
acceptable explanation
for different percentages reflected in the
schedule. Regarding Pinington, the court found that his opinion was
based on wrong assumptions
and that he ‘correctly admitted that
the entire basis of his report that the debts in annexure “B”
should have
been fully provided for was wrong’.
[22] Mofokeng,
who is shown by the record
to have had limited independent
recall of the relevant events and mostly gave vague answers
,
on the other hand, made a strikingly favourable impression on the
court below. The court accepted her evidence without hesitation
because in its view she ‘gave evidence in a very relaxed and
confident manner … was in good spirit … was very
lucid
… impressed as a person of intelligence [and] displayed an
excellent recall of her own evidence.’
[23] The court below considered
the evidence of Steele and Mofokeng vital for deciding what it
considered to be the appellants’
cause of action ie, whether
the parties identified debts which met the relevant criteria as
alleged by the appellants. It then
found that there were ‘two
irreconcilable versions’ in light of the ‘stark
differences’, in that evidence.
It proceeded to resolve the
‘dispute’ merely by pitting the respective versions
against each other and rejecting Steele’s
evidence, for being
‘very poor’, unless it corresponded with that given by
Mofokeng.
[24] The court below found that
(a) the Land Bank had no duty to prove the percentage provisions in
Annexure “B”, (b)
the appellants failed to prove that the
Land Bank fully provided for the loans set out in Annexure “B”,
(c) clause
2.1.2 was void for vagueness and therefore unenforceable
and (d) the evidence adduced by the appellants was insufficient to
prove
their pleaded case that the parties identified debts which met
the relevant criteria.
[25] On appeal
before us, it was contended on the appellants’ behalf that the
court below erroneously made credibility findings
without having
regard to the probabilities. It is so that that court made
credibility findings which it based solely on the demeanour
of the
witnesses. Its assessment of the evidence was, in turn, based wholly
on such credibility findings. In that exercise, it
completely ignored
the general probabilities of the matter and the proven facts which it
ought to have also considered. That approach,
from which counsel for
the Land Bank prudently dissociated themselves, is wrong and
constitutes a material misdirection.
5
And that
apart, its impressions of the witnesses are simply not supported by
the evidence. But more importantly, the court plainly
did not grasp
the import of Mofokeng’s evidence as it would otherwise have
realised that she did not refute the appellants’
version. There
was, essentially, no factual conflict to be resolved between the
respective versions. It thus had no reason to engage
in the enquiry
upon which it embarked.
[26] But this
finding does not assist the appellants’ case. Their main
contention was that they proved on a balance of probabilities
that
full provision was made or should have been made by the Land Bank for
the debt on Annexure “B”, regardless of
the
fact that the schedule recorded that the debt had been provided for
in percentages lower than
100
per cent as these were not specific but general provisions and the
Land Bank did not
rebut their evidence that the debts were fully provided
for.
It was submitted further that the criterion in clause 2.1.2, which
was not void for vagueness but was unnecessary, was met,
in
compliance with the AC 133, as no additional provision as a result of
the cession of the debt would be required.
[27] There is a fundamental
difficulty with the main proposition. It is rooted in the party’s
pleadings. The key allegations
in the appellants’ particulars
of claim read:
‘
7
Consequent upon the conclusion of the agreement:
7.1 During or about
March 2006 the [Land Bank] made payment to the [first appellant] of
R32 million.
7.2 On or about 31
May 2006 the parties identified R142 315 736.68 worth of
debt that met the criteria set out in the
agreement. The schedule
recording such identified debt as defined in the agreement is
attached marked “B”.
8 The
R142 315 736.68 worth of debt set out in Annexure “B”
meets the criteria set out in [clause 2.1 of the
settlement
agreement].’
[28] In its plea, the Land Bank
denied the allegations in paragraphs 7.2 and 8. It averred that
Annexure “B” reflected
all the loans in its books of
account and that they did not meet the criteria in clause 2.1 of the
settlement agreement. This was
because it had not made 100 per cent
provision for them in accordance with the AC 133. It would thus be
required to make additional
provision in its books of accounts as a
result of ceding any or all of the loans to the first appellant.
[29] These issues remained in
contention up to trial stage as evidenced by counsel’s opening
addresses. In that court, counsel
for the appellants defined their
case as follows:
‘
The
issue in the case is whether there are debts which meet the
requirements, the criteria which the written agreement provides
they
were to be. They had to be of a certain type and a certain class and
they had to comply with certain criteria and that is
the dispute in
this matter. … The parties had to get together and within two
months identify the debt. … The parties
did get together and
agreed everything in relation to the loans except [the] two criteria
[in clause 2.1].’
[30] The Land Bank’s
counsel dismissed this statement as a misidentification of the issues
between the parties that was not
supported by the cause of action
pleaded by the appellants. He reiterated the Land Bank’s stance
that the parties never identified
debt which satisfied the relevant
criteria and that this was the real issue that the court below had to
adjudicate. The court below
then captured the arguments as follows:
‘
But
Mr Burman, the defendant’s case is that the parties never
identified such a debt. You operate on the premises that such
debt
was identified, all what was thought agreed upon was the criteria …
they say that even the identification never took
place let alone
criteria, so you people are not with each other ….’
To this summation, the
appellants’ counsel responded ‘Yes, yes, you are entirely
correct, M’Lord’. The case
then proceeded on that basis.
And this, obviously, is the reason for the Land Bank’s
subsequent failure to call its proposed
expert witnesses who were to
testify on whether the criteria in clause 2.1 were met.
[31] Counsel for the appellants
was constrained to concede in argument before us that there was no
evidence of a vital element of
the appellants’ cause of action
– that the parties
agreed
on the identified debt as
pleaded in paragraph 7.2 of their particulars of claim. The
concession was proper in light of the evidence
in which the
appellants’ own witnesses impeached even Annexure “B”,
the very foundation of their case as pleaded
in paragraph 7.2.
[32] Realising the grave problem
this posed, appellants’ counsel then argued that the appellants
could still rely on the allegations
in paragraph 8 of the particulars
of claim successfully as they constituted a separate and distinct
cause of action that had been
an issue at the trial. The Land Bank
did not meet its end of the bargain by ensuring that suitable debt
was identified as contemplated
in the settlement agreement, continued
the argument. On that basis, counsel urged, we should find in the
appellants’ favour
that, despite the lack of agreement between
the parties on that issue, there was nevertheless, ‘objective
compliance with
or objective fulfilment of the criteria in clause
2.1’.
[33]
I
venture to say that there are strong hints in the undisputed evidence
that the conduct of the Land Bank in its dealings with the
appellants, and in this particular regard too, may easily be
construed as obstructive. In addition to all the parties’ other
skirmishes often brought about by the Land Bank’s resistance,
which have kept our courts very busy, the appellants told of
its
unyielding refusal to produce documents that formed the basis of the
perplexing Annexure “B” and would explain
the computation
of the percentage provisions it reflected. The source documents were
not produced on the basis that they were confidential
or privileged.
When confronted with a court order obtained in a hard fought
application that compelled it to discover the documents,
the Land
Bank raised an incredible excuse that the documents did not exist or
were no longer available.
[34] Be that
as it may, however, the appellants’ contention for a finding of
a ‘deemed agreement’ is beset by
its own problems. First,
even assuming that the allegations in paragraph 8 of their
particulars of claim encompass a cause of action
that is separate
from the one set out in paragraph 7.2, as contended, the requirement
in clause 2.1 for the parties to identify
suitable debt, which was
not met, remains a hurdle. But the real obstacle is the manner in
which the appellants couched their cause
of action. From the onset of
the proceedings until trial, the appellants’ case was simply
that the parties identified the
relevant debt which was reflected in
Annexure “B” and disagreed only in respect of the
question whether such debt met
the criteria in clause 2.1 of the
settlement agreement. Now they seek to rely on a radically mutated
version of that case: one
that is akin to a claim based on the
equitable doctrine of fictional fulfilment which prevents a party
from taking advantage of
its own default to the loss or injury of
another.
6
[35] It is
trite that litigants must plead material facts relied upon as a basis
for the relief sought and define the issues in
their pleadings to
enable the parties to the action to know what case they have to
meet.
7
And a party
may not plead one issue and then at the trial, and in this case on
appeal, attempt to canvass another which was not
put in issue and
fully investigated.
8
The Land Bank
(and the trial court for that matter) was never put on notice that it
would answer a case that it had frustrated,
deliberately or
otherwise, the performance of the obligation imposed by clause 2.1 of
the settlement agreement. Clearly, we cannot
now, on appeal, decide
issues that have neither been raised nor fully ventilated
previously.
9
[36] For these reasons the appeal
cannot succeed and the following order is made:
‘
The
appeal is dismissed with costs that include the costs of two
counsel.’
__________________
MML MAYA
JUDGE OF APPEAL
APPEARANCES
For the appellant: B W Burman SC
(with him B W Maselle)
Instructed by:
Bowman Gilfillan Inc,
Johannesburg
McIntyre & Van der Post
,
Bloemfontein
For respondents: I V Maleka SC
(with V P Ngutshane and H Rajah)
Instructed by:
Strauss Daly, Johannesburg
Claude Reid Inc, Bloemfontein
1
Annexure
B sets out three separate categories of outstanding loans, (a) ‘Long
Term Loans - Low to Medium - 1-2 years (excluding
unwanted debt)’,
(b) ‘Long Term Loans - Low to Medium - 2-3 or 3+ years’
and (c) ‘Long Term Loans - Medium
to High 1-2 years (excluding
unwanted debt)’.
2
The
dissension appears in a long trail of correspondence which flowed
between the relevant officials which culminated in a meeting
held on
31 May 2006.
3
The
AC 133 accounting standard is the acronym of the ‘IAS 39 (AC
133) Financial Instruments: Recognition and Measurement
(revised
January 2006)’ which is a statement of generally accepted
accounting practice issued by the Accounting Practices
Board of
South Africa. It is a standard applied by money lending companies
when producing their financial reports and accounts.
4
The
other two modules redesigned the Land Bank’s organization
structure, improved its productivity, reduced its costs base,
improved loans and designed new products that the Land Bank could
supply to its customers.
5
Body
Corporate of Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999 (1) SA 975
(SCA) at
979B-I;
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) paras 5
and 6;
ABSA Bank v Bernet
2011 (3) SA 74
(SCA) para 12;
Stellenbosch Farmer’s Winery Group Ltd &
another v Martel et
Cie &
others
2003 (1) SA 11
(SCA)
.
6
East
Asiatic Co Ltd v Hansen
1933 NPD 297
;
Koenig v Johnson &
Co Ltd
1935 AD 262
;
First National Bank
Ltd v Avtjoglou
2000 (1) SA 989
(C) at
p 996D-H;
Du Plessis NO & another v
Goldco Motor Supplies (Pty) Ltd
2009
(6) SA 617
(SCA) paras 22-27; RH Christie and GB Bradfield
Christie’s The Law of Contract
in South Africa
6
ed (2011) 156.
7
See,
for example,
Moaki v Reckitt & Colman (Africa) Ltd
1968
(3) SA 98
(A) at 102A;
Durbach v Fairway Hotel Ltd
1949 (3)
SA 1081
(SR) at 1082;
Imprefed (Pty) Ltd v
National Transport Commission
1993 (3)
SA 94
(A) at 107C-H.
8
Middleton
v Carr
1949 (2) SA 374
(A) at 386.
9
Ras
NNO v Van der Meulen
2011 (4) SA 17
(SCA) para 16.