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[2013] ZASCA 146
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Spencer and Others v Memani and Another (675/2012) [2013] ZASCA 146 (1 October 2013)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA JUDGMENT
Case
No: 675/2012
Not
Reportable
In
the matter between:
GEORGE
TALBOT SPENCER
..............................................................................
First
Appellant
DAVID
THURSTON OWEN KOLLER
...............................................................
Second
Appellant
ROBERT
HUGH FRYER
.......................................................................................
Third
Appellant
PAUL
STAVELEY HOWARD
.............................................................................
Fourth
Appellant
TIMOTHY
JOHN ANTHONY SCOTT
.....................................................................
Fifth
Appellant
DEON
ROESTORFF
..............................................................................................
Sixth
Appellant
GERBER
GOLDSCHMIDT GROUP SA (PTY) LTD
........................................
Seventh
Appellant
EMCON
AFRICA (PTY) LTD
...............................................................................
Eighth
Appellant
and
XOLISA
KENNEDY MEMANI
............................................................................
First
Respondent
THE
TRUSTEES FOR THE TIME BEING OF THE
THE
MASAKHANE TRUST, IT NO. 6410/100
.............................................
Second
Respondent
Neutral
citation:
Spencer v Memani
(675/12) [2013] ZASCA146 (1
October 2013)
Coram:
Lewis, Ponnan, Pillay and Willis JJA and Meyer AJA
Heard:
27 August 2013
Delivered:
1 October 2013
Summary:
Defence of
lis alibi pendens
– declaration about the
same dispute
sought
in earlier action proceedings and in later motion proceedings –
defenceavailable where the same
lis
is pending in two cases in
the same court –can be raised before
litiscontestatio
–
and immaterial that party raisingthe defence is the plaintiff in the
other proceedings.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
KwaZulu-Natal High Court, Durban (Madondo J, sitting as court of
first instance):
1. The appeal is upheld
with costs, including the costs of two counsel.
2. The order of the court
a quo is set aside and there is substituted an order which reads:
‘
(a)
The proceedings are stayed pending the determination of case number
13132/2010 in the KwaZulu-Natal High Court, Durban.
(b) The applicants are
ordered jointly and severally the one paying the other to be absolved
to pay the respondents’ costs
of the application.’
__________________________________________________________________
JUDGMENT
___________________________________________________________________
MEYER AJA (LEWIS,
PONNAN et PILLAY JJA concurring):
[1] This is an appeal
with leave of the court a quo, against the judgment and order of
Madondo J,
sitting in the KwaZulu-Natal High Court, Durban. The court a quo
rejected the appellants’
objection of
lis alibi
pendens
(amongst others)and
declared that the first respondent, Mr Xolisa Kennedy Memani
(Memani), was a director of the eighth respondent,
Emcom Africa (Pty)
Ltd (Emcom), and entitled to certain information.
1
[2] The appellants, as
respondents in the application that led to this appeal, relied on an
agreement of sale which was concluded
during 2006 between the first
to seventh appellants, who at the time were the shareholders of
Emcom, Memani, who is a beneficiary
and trustee of the second
respondent, the Masakhane Trust (the trust) and the trust (the sale
agreement). In terms of the sale
agreement, the first to seventh
respondents (collectively referred to as the shareholders) sold 25
percent of their shareholding
in Emcom to the trust.
[3] The sole purpose of
getting the trust on board as a shareholder was to enable Emcom to
trade with the benefit of what was referred
to as BEE status. The
trust warranted that it would achieve such status for Emcom and that
the company would be accepted as a ‘Black
and/or Black-owned
Empowered Economic Entity’.
[4] According to the
shareholders the sale agreement also included the following term:
‘
Notwithstanding
the transfer of the Shares into the names of the Purchasers, the
Purchasers undertake, immediately upon receipt
of the said Shares to
sign blank endorsed transfer forms and lodge same together with the
Shares with the Sellers’ nominees
& furthermore the
Purchasers hereby cede and assign the said Shares back to Sellers as
security for the due fulfillment of
their obligations hereunder and
authorise the Sellers to take transfer of the said Shares in the
event of the cancellation and/or
the Purchaser’s breach of this
Agreement.’
[5] It is common cause
that a shareholders’ agreement was concluded on 16 June 2006
(the shareholders’ agreement). The
relevant provisions of the
shareholders’ agreement are clauses 3.1, 3.2, 3.5 and 18 which
read as follows:
‘
3.
APPOINTMENT OF DIRECTORS
3.1 Each
shareholder holding 15% (Fifteen Percent) or more of the issued
shares of the Company shall be entitled to appoint one
director of
the Company for each 15% (Fifteen Percent) so held.
3.2 Until the
shareholders decide otherwise in writing there shall be a maximum of
6 (Six) directors of the Company, 3 (Three) being
appointed
collectively by TMTrust [the trust] and Spencer [first appellant],
and 3 (Three) by the other shareholders represented
by GGG [seventh
appellant] and Koller [second appellant].
. . .
3.5 Each
shareholder entitled to appoint one or more directors shall be
entitled, howsoever arising, to remove any of its such appointees
[sic] and subject to the written consent of the other shareholder(s),
which consent shall not unreasonably be withheld, to replace
such
appointee.
. . .
18. PROVISIONS
AFFECTING THE MASAKHANE TRUST
18.1 TMTrust
warrants that it qualifies as 100% (One Hundred percent) “black”
for purposes of Broad Based Economic Empowerment
Code of Practice;
18.2
Notwithstanding that the TMTrust shall from time to time hold shares
in the Company, the parties record that it does so solely
as a result
of the active involvement of Xolisa Kennedy Memani . . . (“Memani”)
as director of the business;
18.3 Should
TMTrust breach its warranty per clause 18.1, and not rectify or be
capable of rectifying said breach having received
reasonable notice
to do so, or should Memani die, TMTrust hereby irrevocably consents
to the other Shareholders, in their collective
discretion,
repurchasing the TMTrust’s shares (or any part thereof) in the
business, and, in the case of a breach of clause
18.1, restoring the
status quo ante, and should Memani die applying the terms of clause
17 above.’
[6] Several disputes
arose during the years that followed the conclusion of the sale and
shareholders’ agreements. The appellants
maintained that the
trust had breached the warranty relating to the trust’s BEE
status and that Memani and the trust had
failed to remedy that
breach. They accordingly cancelled or considered the sale agreement
‘to be of no force and effect’,
the trust not being
entitled to appoint a director to the board of directors of Emcom and
Memani not eligibile or entitled to be
a director of Emcom. It is
stated in the answering affidavit that the appellants
‘…
as
they were entitled to, restored the status quo ante and
re-transferred the shares that were allotted to Second Applicant [the
trust] and First Applicant [Memani] lost his entitlement to be a
director.’
It is the alleged breach
of the warranty and restoration of the
status
quo ante
that is the
foundation of the litigation between the parties.
[7] During October 2010
the first, second, third and seventh appellants and Emcom
(plaintiffs) instituted action against inter aliosMemani
and the
trust in the Kwazulu-Natal High Court, Durban in which they sought
declaratory orders that the sale agreement between them
and Memani
and the trust had been validly cancelled or that it was
unenforceable; that Memani and the trust were not members of
Emcom
and that their removal from the register of members was valid; and
that Memani was not a director of Emcom and that his removal
from the
register of directors was valid. The repayment of certain dividends
that were allegedly paid by Emcom inter alia to the
trust and to
Memani, plus interest, was also claimed. The plaintiffs pleaded the
sale agreement; its breach by the trust in not
qualifying for BEE
rating purposes and in failing to fulfill the condition of the sale
by not achieving BEE status for Emcom; and
its cancellation by the
plaintiffs. They pleaded that Memani and the trust were consequently
not entitled to be shareholders and
that Memani was not entitled to
be a director of Emcom. The concluding paragraph of the particulars
of claim reads:
‘
Second
and Third Defendants [Memani and the trust] dispute the
aforementioned contentions of Plaintiffs and contend that they are
shareholders of Fifth Plaintiff [Emcom], that Second Defendant is
entitled to be a director of Fifth Plaintiff and that Plaintiffs
are
not entitled to a refund of the sum of R389 512-69 or any portion
thereof.
[8] Memani and the trust
defended the action and it is still pending. The application that led
to this appeal was subsequently brought
against the shareholders and
Emcom during June 2011, also in the Kwazulu-Natal High Court, Durban.
In the application Memani and
the trust sought a declarator that
Memani was a director of Emcom and for the setting aside of his
‘purported removal’
as director. The appellants raised
the objection of
lis alibi
pendens
to the application
that an action had already been instituted in the same court.
[9] In
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
2001
(4) SA 542
(SCA), Nugent AJA said the following:
2
‘
The
defence of
lis
alibi pendens
shares
features in common with the defence of
res
judicata
because
they have a common underlying principle, which is that there should
be finality in litigation. Once a suit has been commenced
before a
tribunal that is competent to adjudicate upon it, the suit must
generally be brought to its conclusion before that tribunal
and
should not be replicated (
lis
alibi pendens
).
By the same token the suit will not be permitted to revive once it
has been brought to its proper conclusion (
res
judicata
).
The same suit between the same parties, should be brought once and
finally.’
[10] In
Socratous
v Grindstone Investments
2011
(6) SA 325
(SCA), this court reaffirmed the principles referred to in
the above passage and went on to refer with approval to the following
passage by
Voet
44.2.7
(Gane’s translation) vol 6 at 560
:
3
‘
Exception
of
lispendens
also
requires same persons, thing and cause. -
The
exception that a suit is already pending is quite akin to the
exception of
res
judicata
,
inasmuch as, when a suit is pending before another judge, this
exception is granted just so often as, and in all those cases in
which, after a suit has been ended there is room for the exception
res
judicata
,
in terms of what has already been said. Thus the suit must already
have started to be mooted before another judge between the
same
persons, about the same matter and on the same cause, since the place
where a judicial proceeding has once been taken up is
also the place
where it ought to be given its ending.’
[11] Voet states further:
‘
Pending
suit defined.
Moreover
a suit is deemed to have been begun and thus to be pending elsewhere
not only if joinder of issue has already taken place,
but also if
there has been merely a citation or summoning to law, since such a
thing brings on anticipation. This is so provided
that the statement
of claim or at least the cause for claiming has at the same time been
notified to the defendant, so that it
can be known whether the suit
is being again set in motion elsewhere on the same cause and about
the same matter, or on the other
hand the cause or matter is
different.’
[12] Our courts have
adopted Voet’s view that the defence of
lispendens
can be raised before
l
itiscontestatio
(close of pleadings) although many
writers on the Roman-Dutch practice held the contrary view that there
is no
lispendens
before
litiscontestatio
.
4
The defence is also available where
the same
lis
is
pending in two cases in the same court.
5
A defendant can raise the defence even
though it is the plaintiff in the other proceedings.
6
The
‘…
requirement
of the same cause of action is satisfied if the other proceedings
involve the determination of a question that is necessary
for the
determination of the case in which the plea is raised and
substantially determinative of the outcome of that latter case.’
7
[13] I disagree therefore
with the principal submission made by counsel on behalf of Memani and
the trust that the defence of
lis
alibi pendens
was not
available to the appellants by reason of the fact that the origin of
Memani and the trust’s entitlement to relief
in the application
was the shareholders’ agreement which did not feature in the
trial action. A declaration about the same
dispute – whether
Memani is a director of Emcom - was sought in both the earlier action
and later application. The concluding
paragraph of the particulars of
claim refers to the contentions of Memani and the trust that they
were shareholders of Emcom and
that Memani was entitled to be a
director of the company. Although their plea had not been delivered
by the time the application
was brought, Memani and the trust in
their founding affidavit disclosed the grounds upon which they relied
in support of their
contention that Memani was a director of Emcom
and that his removal from the register of directors was invalid. They
relied on
clause 3.1 of the shareholders’ agreement, which
entitles the trust to appoint one director to Emcom’s board of
directors.
Memani, it is alleged, was the trust’s appointed
director and his removal as a director, if it happened, would not
have been
in compliance with the procedural requirements prescribed
by s 220 of the Companies Act 61 of 1973 relating to the removal of a
director, and is therefore null and void.
[14] There is no need to
consider the merits of the contention. It is a matter for the trial
court to determine. To refuse to allow
the objection of
lis
alibi pendens
simply
because the plaintiffs in the action did not spell out the grounds
upon which Memani and the trust rely in the dispute about
which a
declaration is sought would amount to an elevation of form over
substance. The trial court will have to decide upon the
very matters
which the court a quo was asked to decide upon as far as the
directorship of Memani is concerned. The pending earlier
action and
the later application involve the same parties (the relevant
shareholders,
8
Emcom,
Memani and the trust) and are based on the same cause of action and
in respect of the same subject-matter as far as the dispute
relating
to Memani’s directorship is concerned. Had the relevant
appellants obtained judgment in their favour in the earlier
action on
the question of Memani’s directorship, the respondents would
have been met by a plea of
res
judicata
had they
thereafter instituted the application that led to this appeal.
[15] There are compelling
reasons why the
lis
which
was first commenced should be the one to proceed. A decision of the
application will not bring finality in the litigation
between the
parties but merely result in a piecemeal adjudication of the issues
in dispute between them. For purposes of this matter,
the appellants’
version must be accepted that Memani ‘…performed no
functions as a director …’
and ‘… showed no
interest in doing so …’ during the period between June
2006 (when the shareholders’
agreement was concluded) and
February 2010 (when the sale of shares was allegedly cancelled).
9
There is consequently no reason why
the decision, to be taken in due course by the trial court on whether
Memani should be declared
to be a director of Emcom, should be
pre-empted and decided separately in the application proceedings.
Furthermore, a weighty consideration
is the one mentioned by Navsa JA
in
Socratous
.
10
This consideration is summarised as
follows in the headnote of that judgment:
‘
South
African courts are under severe pressure due to congested court
rolls, and the defence of
lis
alibi pendens
must
be allowed to operate in order to stem unwarranted proliferation of
litigation involving the same parties based on the same
cause of
action and related to the same subject-matter.’
[16] The judgment of the
court a quo on the question of
lis
alibi pendens
is brief and
not reasoned. Madondo J held as follows:
‘
In
the premises I find that his [Memani’s] removal was unlawful.
That the respondents [the present appellants] have become
wise after
the event. In fact they tried to lock the stable door after the horse
has bolted by trying to obtain an order confirming
what they have
done. So such proceeding in my view could not constitute an
impediment to the granting of this application.’
[17] The court a quo
erred in not finding that the requisites of a plea of
lis
alibi pendens
have been
established. It also did not duly and properly exercise its
discretion in allowing the application to proceed given the
facts and
considerations that I have mentioned.
[18] In the result the
following order is made:
1 The appeal is upheld
with costs, including the costs of two counsel.
2The order of the court a
quo is set aside and there is substituted an order which reads:
‘
(a)
The proceedings are stayed pending the determination of case number
13132/2010 in the KwaZulu-Natal High Court, Durban.
(b) The applicants are
ordered jointly and severally the one paying the other to be absolved
to pay the respondents’ costs
of the application.’
________________________
P A MEYER
ACTING JUDGE OF APPEAL
WILLIS JA
(dissenting):
Introduction
[19] I have read the
judgment of Meyer AJA. I do not agree with his conclusions that the
high court did not properly exercise its
discretion in the face of a
plea of
lis alibi pendens
and that there was, therefore, no
need to consider the merits of the contentions relating to Memani’s
alleged directorship
of Emcom Africa (Pty) Ltd, the eighth appellant.
Accordingly, it is necessary for me traverse the issues more fully ─
precisely
because I think that the high court had issues before it
which it could, should and indeed did adjudicate whereas Meyer AJA
does
not think so.
[20] The relief which the
respondents in this court had successfully sought in the high court
was predicated upon a written agreement
which had been entered into
between the parties in 2006.
[21] Not only were the
eight appellants in this appeal the respondents in the high court but
the appellants were also the plaintiffs
in a related trial action in
which the respondents in this appeal were defendants. Against this
background, I shall refer to the
parties as follows: Mr George Talbot
Spencer, the first appellant, as ‘Spencer’; Spencer and
any of the second to eighth
appellants collectively as ‘Spencer
and his associates’; Emcom Africa (Pty) Limited, the eighth
appellant, as ‘Emcom’;
MrXolisa Kennedy Memani, the first
respondent in this appeal, as ‘Memani’; the Trustees for
the time being of the Masakhane
Trust, the second respondent in this
appeal, as ‘the Trust’; and Mpisi Trading 48 (Pty) Ltd as
‘Mpisi’.
[22] Memani and the Trust
sought an order in the high court by way of application in motion
proceedings that the purported removal
by Spencer and his associates
of Memani as a director of Emcom be set aside, that the high court
issue a declaratory order that
Memani was indeed a director of Emcom,
that Spencer and his associates were to supply Memani and the Trust
with certain information,
including documentation and that Spencer
and his associates were to be ordered to pay the costs of Memani and
the Trust in the
application. The time period that was applicable to
the documentation to be provided was from February 2007 to the date
of the
court’s order. This documentation included minutes of
meetings of the board of directors of Emcom, lists of its customers
since February 2007, as well as its potential customers in terms of
tenders actually made, management accounts, annual financial
statements, sales records, sales receipts, bank statements and
certain information, including documentation, relating to Emcom’s
standing in terms of broad-based black economic empowerment (‘BEE’)
as well as the representations which Emcom had
made, generally to the
public, in respect thereof. The high court granted Memani and the
Trust the relief which they had sought.
The Relevant Facts
[23] On 9 June 2006
Spencer and the second, third, fifth, sixthand seventh appellants,
together with the Trust (all of whom were
shareholders of Emcom)
entered into an agreement with Emcom. For convenience this agreement
is referred to as the ‘shareholders’
agreement’. In
terms of the shareholders’ agreement, each shareholder owning
15 per cent or more of the issued shares
in Emcom is entitled to
appoint a director of Emcom. The Trust, at the time of entering into
the shareholders’ agreement,
owned more than 15 per cent of the
shares in Emcom. Memani and the Trust claim that, by reason of the
provisions of the shareholders’
agreement, Memani had been
appointed as a director of Emcom. Spencer, as well as the second,
third, fifth and sixth appellants
were, at all material times,
directors of Emcom. The seventh appellant, which also owned more than
15 per cent of the shares in
Emcom, appointed the fourth appellant as
a director of Emcom.
[24] On 5 November 2010
Spencer and his associates instituted an action in the KwaZulu-Natal
High Court, Durban in which they sought
an order that Mpisi, Memani
and the Trust ‘are not members of’ Emcom and that ‘their
removal from the register
of members by the Fourth Defendant’
(the Registrar of Companies) was ‘valid’. Spencer and his
associates also
sought an order declaring that ‘the transaction
for the sale of shares’ by Spencer and his associates to Mpisi,
Memani
and the Trust had been ‘validly cancelled, alternatively
is unenforceable’. Spencer and his associates sought a further
declaratory order that Memani was not a director of Emcom and that
his ‘removal from the register of directors’ by
the
Registrar of Companies was ‘valid’. Moreover, Spencer and
his associates sought an order that Memani and the Trust
pay the sum
of R389 512.68 to Emcom, together with interest and costs.
[25] Spencer and his
associates did not make reference to the shareholders’
agreement in their particulars of claim. They
did, however, resist
Memani and the Trust’s application on the basis that the
shareholders’ agreement contained a warranty
that the Trust
would provide Emcom with BEE certification. They claim that the
agreement provided that, in the event that there
was a breach of this
warranty, the status quo ante would be restored. As Spencer and his
associates contend that the Trust was
in breach of this warranty,
they go on to assert that the status quo ante had been restored and,
accordingly, that Memani had,
ipso facto, not only lost his
entitlement to be but had also ceased to be a director of Emcom. The
parties agreed that the relevant
clause relating to the warranty and
the restoration of the status quo ante, is clause 18 of the
shareholders’ agreement.
By reason of clause 18’s
importance it is quoted below in extenso:
‘
18.
PROVISIONS
AFFECTING THE MASAKHANE TRUST
18.1
TMTrust [defined in the agreement as The Trust] warrants that it
qualifies as 100% (One Hundred percent) “black”
for
purposes of Broad Based Economic Empowerment Code of Practice;
18.2
Notwithstanding that the TMTrust shall from time to time hold shares
in the Company, the parties record that it does so solely
as a result
of the active involvement of Xolisa Kennedy Memani (“Memani”)
as a Director in the business;
18.3
Should TMTrust breach its warranty per clause 18.1, and not rectify
or be capable of rectifying said breach having received
reasonable
notice to do so, or should Memani die, TMTrust hereby irrevocably
consents to the other Shareholders, in their collective
discretion,
repurchasing the TMTrust’s shares (or any part thereof) in the
business, and, in the case of a breach of clause
18.1, restoring the
status quo ante, and should Memani die applying the terms of clause
17 above.
’
The parties place
differing interpretations on clause 18.3. The case turns, ultimately,
on what one makes of clause 18.3, read together
with clause 18.1. It
is, however, undisputed that Memani and the Trust were not called
upon to rectify the alleged breach and that
the shares were not
repurchased as provided for in clause 18.3.
[26] On 25 March 2011
Memani and the Trust took exception to the particulars of claim in
the trial action. The exception was opposed.
The exception was set
down by the excipients for hearing on 21 April 2011. On 16 May 2011
Spencer and his associates served a notice
on their opponents
indicating an intention to amend their particulars of claim.
[27] In the meanwhile, in
the weeks and months preceding the bringing of the application by
Memani and the Trust in June 2011, in
an exchange of correspondence
between the attorneys acting for the contending sides, Spencer and
his associates asserted that Memani
was ‘no longer a director’
and that he had been removed by a resolution of Emcom taken on 24
March 2010.
[28] In the answering
affidavit Spencer protests that Memani did not allege when, in what
manner and how he had become a director.
Spencer did not, however,
dispute that Memani had, in fact, been a director.
[29] Spencer did not
allege in the answering affidavit that Memani had been removed as a
director of Emcom in terms of the provisions
of s 220 of the then
applicable Companies Act 61 of 1973, as amended (‘the old
Companies Act’). Spencer contends in
the answering affidavit
that whether or not there had been compliance with s 220 of the old
Companies Act was irrelevant to the
issue of whether Memani had an
entitlement to be a director of Emcom
.
[30] It is common cause
that Memani has not received the information which has been sought in
the prayers of the notice of motion.
[31] On 23 August 2011,
Memani’s attorneys wrote to Spencer’s attorneys
contending that they had ‘no desire to
omit interested parties’
and enquired as to the whereabouts of a certain MsVermeulen who ‘may
have an interest in the
matter’. Spencer’s attorneys
replied that MsVermeulen was, as at August 2011, a shareholder of
Emcom but that MrsVermeulen
had not been a shareholder at the time of
the ‘Mpisi transaction’ or at any other relevant time.
The ‘Mpisi transaction’
refers to the sale, with effect
from 1 June 2003, by Spencer and the second appellant of a shade less
than 50 per cent of the shares
in Emcom to Mpisi. MsVermeulen has
brought no application to be joined in these proceedings.
The Decision of the
High Court
[32] The high court found
that, on Spencer’s own version of events, the only reasonable
inference that could be drawn was
that Memani had indeed been a
director of Emcom. Upon this foundation the high court concluded that
the removal of Memani as a
director had been unlawful; that Spencer
and his associates had instituted an action to confirm what they had
done was no impediment
to Memani and the Trust obtaining the relief
which they had sought; that Memani, as a director of Emcom, was
entitled to the information
which he and the Trust had sought; and
that, in the light of the history of the matter, there was no merit
in the complaint by
Spencer and his associates concerning the issue
of non-joinder. The high court decided that the application should
succeed and
granted an order accordingly.
The Contentions of the
Parties
[33] Counsel for Spencer
and his associates submitted that, as Memani and the Trust had failed
to establish that Memani had indeed
been appointed as a director of
Emcom and, as their whole case had been predicated upon his having
been a director, Memani and
the Trust’s forensic horse had not
even entered into the starting blocks: Memani and the Trust were out
of the case before
it could even be argued.
[34] Perhaps more
critically for the resolution of this case, Spencer and his
associates relied on the alleged breach of the Trust’s
warranty
to obtain BEE certification to justify a restoration of the status
quo ante which, in their submission, necessarily resulted
in the
reversal of the Trust’s shareholding and, correspondingly,
Memani’s entitlement to be a director and to derive
any rights
therefrom.
[35] Spencer and his
associates furthermore contended that the application by Memani and
the Trust had been fatally defective in
that MsVermeulen had not been
joined in the proceedings. Spencer and his associates also submitted
that the high court had failed
to apply its mind at all to the
question of the discretion which it had to exercise in terms of s
19(1)
(a)
(iii) of the Supreme Court Act 59 of 1959, as amended
(‘the Supreme Court Act’); that the high court had been
wrong
in not having accepted the protest by Spencer and his
associates that their previously instituted action against Memani and
the
Trust had given them a valid defence of
lis alibi pendens
;
and that the high court had failed to take into account, as it is
required to do, that the order would not finally resolve the
dispute
between the parties.
[36] Memani and the Trust
submitted that, as a matter of law, the shareholders’ agreement
gave rise to Memani’s appointment
as a director, without the
need for any further ado. They relied on
Gohlke and Schneider &
another v WestiesMinerale (Edms.) Bpk and another.
11
Mr Olsen, who together with MrBoulle, appeared for Memani and the
Trust, supported the reasoning of the high court and went on
to
submit that, in any event, the past correspondence between the
respective attorneys and the particulars of claim in the trial
action
together with Spencer and his associates’ responses in their
answering affidavit, justified the conclusion that Memani
had indeed
been a director of Emcom. Similar submissions were made in regard to
the ‘non-joinder point’ taken by Spencer
and his
associates.
[37] Mr Olsen submitted
that, at common law, a person was entitled to a declaration of rights
if his rights had been infringed.
Mr Olsen developed this submission
further by contending that the issue of the exercise of a discretion
by the judge hearing the
application in the high court did not arise
where rights had, in fact, been infringed. Mr Olsen submitted that
the terms of s 19(1)
(a)
(iii) of the Supreme Court Act did not
detract from this common law right. In this regard he relied on
Geldenhuys and Neethling v Beuthin.
12
[38] Mr Olsen contended
that the defence of
lis alibi pendens
was not available to
Spencer and his associates by reason, inter alia, of the fact that
the
fons et origo
of Memani and the Trust’s entitlement
to relief was the shareholders’ agreement which did not feature
in Spencer and
his associates’ particulars of claim in the
trial action. Mr Olsen submitted that the appellants could have
applied for a
consolidation in terms of rule 11 of the Uniform Rules
of Court.
[39] Memani and the Trust
claimed that the purported removal of Memani as a director of Emcom
was unlawful inasmuch as (i) there
had been non-compliance with the
procedures for which provision had been made for the removal of
directors in terms of s 220 of
the old Companies Act; and (ii) if
Spencer and his associates wished to restore the status quo by reason
of the Trust’s breach
of the BEE warranty, there would, in
terms of clause 18.3 of the shareholders’ agreement, have to
have been a repurchasing
of the Trust’s shares which, it is
common cause, had not occurred.
[40] Memani and the Trust
reasoned that, as Memani had not properly been removed as a director
of Emcom, the Trust was entitled
to receive such information, inter
alia, pursuant to s 284 of the old Companies Act and, by reason of
the fact that Memani represented
and was duly appointed by the Trust,
he would be entitled to receive that information on behalf of the
Trust.
Conclusions
Lis alibi pendens
[41] As Nugent AJA said
in
Nestlé (South Africa) (Pty) Ltd v Mars Inc
:
13
‘
Once
a suit has been commenced before a tribunal that is competent to
adjudicate upon it, the suit must generally be brought to
its
conclusion before that tribunal and should not be replicated (
lis
alibi pendens
)
.’
This dictum has been
reaffirmed by this court in
Socratous v Grindstone Investments
14
as
have the more general principles, set out by Johannes Voet in his
Commentarius Ad Pandectas
.
15
These general principles are that a defence of
lis alibi pendens
requires that the suit must already have commenced before another
judge between the same parties, for the same cause and in respect
of
the same subject-matter. The place where a judicial proceeding has
once been taken up is also the place where it ought to be
given its
ending. In the present case the matter has not commenced before
another judge. The same case had not been instituted
in different
fora. The
causae
relied upon by the parties were different,
even though the relief claimed was, in certain respects, the mirror
image of the others’.
In the trial action, Spencer and his
associates relied upon the agreement for the sale of shares in Mpisi.
In the application before
the high court in respect of which this
appeal is heard, Memani and the Trust had relied upon the
shareholders’ agreement.
[42] For a defence of
lis
alibi pendens
to succeed, more is required than a mere
overlapping of some of the issues in two or more cases. It would
appear from the judgment
of Greenberg J in
Marks and Kantor v Van
Diggelen
16
that the rule concerning the defence of
lis alibi pendens
in
our adjectival law arose in order to prevent a plaintiff from
harassing a defendant. Memani and the Trust have acted in a manner
that far from harasses the appellants. They have sought relief, by
way of motion proceedings, in a cheap and expeditious manner,
on one
of the issues that Spencer and his associates themselves wished to
have resolved by way of a longer and more expensive trial
action.
This step taken by Memani and the Trust left open the other issues,
such as the sale of shares in the Mpisi transaction
and the payment
of money by the present respondents to Emcom, for determination in
the trial action.
[43] A cry of ‘
lis
alibi pendens
’ is not an abracadabra that, whenever there
are correlative issues in different processes of court, will
invariably, be able
to summon judicial immobility. As Mr Olsen
submitted, it was open for Spencer and his associates to have applied
in terms of Rule
11 of the Uniform Rules of Court for a consolidation
of the two matters.
[44] As was said by
Corbett AJ in
New Zealand Insurance Co Ltd v Stone & others
,
17
Rule 11 confers a wide discretion upon a court to consolidate
actions, where substantially the same questions of law or fact are
involved, taking into account, as the paramount consideration, the
convenience of the parties and the court. Also relevant is the
prejudice to the respective parties.
18
See also
Nel v Silicon Smelters (Edms) Bpk& ’n ander
.
19
It is apparent from
International Tobacco Company of South Africa
Ltd v United Tobacco Companies (South) Ltd
,
20
that judicial imagination has been given wide scope when it comes to
taking appropriate procedural steps in the interests of saving
time
and limiting the escalation of costs among litigants.
[45] In
Solar Basic
Industries Inc v Advance Transformer Company of South Africa
(Proprietary) Ltd and Fluorescent Corporation SA Ballast
Manufacturers (Proprietary) Ltd
21
it
was held that an application and an action cannot be consolidated in
terms of rule 11. It would, however, be open for a court
to refer an
application to trial in terms of Rule 6(5)(
g
) and, having done
so, to then consolidate the respective actions under rule 11. The
high court pertinently found that the bringing
of a trial action by
Spencer and his associates to determine the issue of the directorship
of Memani ‘could not constitute
an impediment to the granting’
of the application in question.
[46] It is instructive to
read
Michaelson v Lowenstein
22
in which Smith J gave a comprehensive analysis of the Roman-Dutch
authorities on the question of
lispendens
, including the
question of whether or not there could be such a defence before
litiscontestatio
(the actual leading of evidence in a case).
The court concluded that:
‘…
[I]t
is a matter within the discretion of the Court to decide whether an
action brought before it should be stayed pending the decision
of
another previously brought between the same parties, for the same
cause and in respect of the same subject-matter,
or
whether it is more just and equitable or convenient that it should be
allowed to proceed
’
.
(My emphasis)
[47]
That the court has a discretion in deciding whether or not to stay
proceedings in the face of a plea of
lis
alibi pendens
has
been reaffirmed in the recent judgment of this
court:
CaesarstoneSdot-Yam
Ltd v The World of Marble and Granite CC
.
23
In
Caesarstone
24
this court endorsed
the position taken by Milne J in
Cook
& others v Muller
25
that ultimately,
when considering a plea of
lisalibi
pendens
,
a court must exercise a judicial discretion in controlling the
proceedings before it.
[48] I
have taken note of the fact that it decided that a defendant may
raise a plea of
lis
alibi pendens
even
though it is the plaintiff in another matter. I also take note of the
fact that in
Caesarstone
26
the court affirmed
that which Coetzee DJP had said in
Kerbel
v Kerbel
:
27
‘
It
is definitely undesirable that the same issue should be the subject
of litigation in two different courts even if both have jurisdiction
to deal with the matter,
unless
good reason is shown that the court where the action first commenced
should not be allowed to carry on with the proceedings
.’
(My emphasis)
[49]
Salient to the issues in the case before us is the observation by
Wallis JA in
Caesarstone
28
that:
‘
Subject
to the person concerned having had a fair opportunity to participate
in the initial litigation, where the relevant issue
was litigated and
decided, there seems to me to be something odd in permitting that
person to demand that the same issue be litigated
all over again with
the sane witnesses and the same evidence in the hope of a different
outcome.’
[50] One must be careful
not to conflate the maxim
qui prior est tempore potiorest jure
(‘the person who is earlier in time is stronger in law)’
with a plea of
lis alibi pendens
. That would open the road to
abuse: a litigant could institute action precisely in order, for
example, to enable it to profit from
the tardiness of the process or
practices that may prevail in another forum or, to use another
example, to rely on the expense
and time delays that would result
from adopting a trial action rather than the cheaper or more
expeditious instrument of motion
proceedings.
[51] On the papers before
it, the court could determine the issues before it by way of motion
proceedings. To the extent that it
had been necessary to do so, the
high court exercised its discretion in favour of proceeding with the
application in question.
National Coalition for Gay and Lesbian
Equality & others v the Minister of Home Affairs& others
29
has made it plain that an appeal court will not interfere with a
lower court’s discretion unless that court was influenced
by
wrong principles or a misdirection of the facts or if that court
reached a decision the result of which could not reasonably
have been
made by the court properly directing itself to all the relevant facts
and principles. In
Ex parte Neethling& others
30
the test was set by this court as being whether the court below had
‘exercised its discretion capriciously or upon a wrong
principle’ or that it had ‘not brought its unbiassed
judgment to bear on the question’ or had ‘not acted
for
substantial reasons’.
[52] The fact that the
high court did not pertinently allude to its discretion does not mean
that it did not apply its mind thereto.
The structure of the high
court’s judgment, which was delivered ex tempore, indicates
that the judge carefully applied his
mind to all the issues argued
before him.
[53] If one bears in mind
the principles in
National Coalition for Gay and Lesbian
Equality
,
31
it cannot be concluded that the high court was influenced by wrong
principles or a misdirection on the facts or that the court
reached a
decision which could not reasonably have been made by the court
properly directing itself to all the relevant facts and
principles.
There is no basis upon which this court can, in the present case,
interfere with the discretion exercised by the high
court judge.
[54] As there were a
number of other issues that were argued fully, consideration will now
be given to them.
Clause 18 of the
shareholders’ agreement
[55]
It falls short of the standard required by our courts for a litigant
to set out conclusions whether of fact or law, without
first
predicating them upon a firm, foundational record of actual facts.
Those material facts upon which a party relies must be
set out with
clarity, precision and particularity. In
Radebe&
others v Eastern Development Board
32
this court, having
referred to
Willcox&
others v Commissioner for Inland Revenue
,
33
concluded that, in
motion proceedings, it is fatal for a respondent to rely on secondary
facts when the primary facts have been
omitted.
34
In this case the
restoration of the status quo ante is a secondary fact. The primary
facts upon which a restoration of the status
quo ante depend would
have been the calling upon the Trust to remedy the breach and then,
in the event of a failure by the Trust
to do so, repurchasing the
Trust’s shares, as provided for in clause 18.3 of the
shareholders’ agreement.
[56]
In
Radebe
the court referred
with approval to the following which appeared in Odger’s
Principles
of Pleading and Practice in Civil Actions in the High Courts of
Justice
22ed
at 97:
‘
Whenever
the same legal result can be attained in several different ways it is
not sufficient to aver merely that the result has
been arrived at,
but the facts must be stated showing how and by what means it was
attained
.’
35
The
position in
Radebe
has been reaffirmed
by this court in
Trope
& others v South African Reserve Bank
.
36
[57] The apparent failure
by Spencer and his associates to have called upon Memani and the
Trust to remedy the Trust’s alleged
breach of clause 18.1 of
the shareholders’ agreement and, related thereto, the failure
by Spencer and his associates to have
acted in terms of clause 18.3
of the shareholders’ agreement and repurchased the shares that
gave rise to Memani’s
directorship has, in the application
under consideration, been fatal to Spencer and his associates.
The factual
question of the directorship of Memani
[58]
The failure of Spencer and his associates to dispute that Memani had
been a director of Emcom has significant consequences.
As was said by
Miller JA in
McWilliams
v First Consolidated Holdings (Pty) Ltd
,
37
in the absence of a cogent explanation, an adverse inference is
likely to be drawn against a person who, in a commercial situation
in
which there has been a preceding exchange of correspondence and
negotiations, fails to contest an assertion of fact by the other
side.
[59]
Gohlke
,
38
Alpha
Bank Limited & others v the Registrar of Banks & others
39
and
Randcoal
Services Ltd & others v Randgold and Exploration Company Ltd
40
make it clear that,
where a unanimous written agreement by the shareholders of a company
provides for the appointment of directors,
no further formalities, in
terms of resolutions passed pursuant to the provisions of the old
Companies Act, are required. As Gauntlett
AJ said in
Delfante&
another v Delta Electrical Industries Ltd
,
41
after referring to
Burroughs
Machines Limited v Chenille Corporation of South Africa (Pty) Ltd
42
and
Barlows
Manufacturing Co Ltd & others v R N Barrie (Pty) Ltd &
others
,
43
provisions in shareholders’ agreements for the appointment of
directors should not be rendered nugatory and must be construed
with
an eye to commercial realities.
44
[60]
In
Desai
& others v Greyridge Investments (Pty) Ltd
,
45
the court of appeal
unanimously concurred with Trollip JA when he assumed that
Stewart
v Schwab & others
46
had correctly been
decided when it determined that a shareholders’ agreement is
‘enforceable by one party by interdict
to prevent the others
from voting as shareholders for his removal as a director’.
47
See, also, the observations of Cohen AJ in
Amoils
v Fuel Transport (Pty) Ltd & others
.
48
The contention by Memani and the Trust that he became a director of
Emcom by reason of the provisions of clause 3.1 of the shareholders’
agreement cannot therefore be gainsaid.
[61] Consequences attach
to the contention by Spencer’s attorneys that Memani had been
‘removed’ as a director.
Similar considerations apply to
the claim in the trial action for the confirmation of Memani’s
removal as a director of Emcom.
Against this background Memani and
the Trust cannot be criticized, when preparing their founding papers,
for having believed that
it had been a common cause fact that Memani
had indeed been a director before his so-called ‘removal’
as one. As a
matter of logic, one cannot be removed from an office –
as Spencer contends that Memani was – unless one held it prior
to one’s removal.
[62] As Van Zyl J said in
Moleah v University of Transkei & others
,
49
the court ultimately has to determine whether an applicant has set
out with sufficient clarity the grounds upon which he relies
for the
relief claimed. A relevant issue is always whether the respondents in
motion proceedings have been adequately apprised
of the case which
they have to meet. The reason for this is that, in order for a court
to be able to make a well-informed decision,
it needs to have all the
relevant facts placed before it. Memani and the Trust left their
opponents with no room for doubt as to
the peg upon which they had
hung their case: it was Memani’s directorship of Emcom. Spencer
and his associates knew very
well that it was the case of Memani and
the Trust that Memani had been appointed as a director of Emcom.
[63] Spencer and his
associates had at their disposal ready access to Emcom’s
records. If they wished to place in issue the
fact that Memani had
been appointed as a director, they could easily have done so.
Instead, they chose to deal in the answering
affidavit with the issue
of Memani having been appointed as a director evasively. Despite
their evasiveness, they nevertheless
contended, from time to time in
their answering affidavit, that he had been ‘removed’ as
a director.
[64] As Corbett J said in
Griffiths &Inglis (Pty) Ltd v Southern Cape Blasters (Pty)
Ltd
,
50
cases should be ‘decided upon their true issues rather than
technical points’. In this case there was no ‘real,
genuine or bona fide dispute’ concerning the issue of whether
or not Memani had been a director of Emcom. The absence of
such a
dispute is one of the classic qualifications, set out in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
51
to the generally simple rule that is employed in order to determine
which facts form the basis for a decision in proceedings that
come
before a court by way of application.
[65] The high court
correctly decided that the decision in this case should be based upon
an acceptance of the fact that Memani
had, indeed, been appointed as
a director of Emcom.
The non-joinder
issue
[66] In view of the
response of Spencer’s attorneys to Memani’s request for
information relating to the whereabouts
of MsVermeulen and
MsVermeulen’s own failure to seek to be joined in these
proceedings, there is no merit in the complaint
by Spencer and his
associates that the proceedings were fatally defective by reason of
her non-joinder.
The provisions of s
220 of the old Companies Act relating to the removal of a director
[67] Section 220 of the
old Companies Act provides that special notice shall be lodged with a
company of any proposed resolution
to remove a director and that,
upon receipt of this notice, the company shall forthwith deliver a
copy thereof to the director
concerned who shall be entitled to be
heard on the proposed resolution at the meeting to consider it. That
there has been non-compliance
with these provisions also entitles
Memani to be a director until such time as he is lawfully removed
from office.
The provisions of
the old Companies Act relating to the keeping of records and access
to information
[68] Section 105 of the
old Companies Act contains extensive provisions relating to the
maintenance of the register of members of
a company. Section 113 of
the Act provides for liberal access thereto. Section 242 of the old
Companies Act requires the directors
of a company to ensure that
minutes of all meetings of the directors and managers thereof be
kept. Section 284 of the old Act provides
a comprehensive obligation
on a company to keep proper records of its business.
Access to
information as a Foundational Value of our Constitution
[69] As was recognized by
this court in
Clutchco (Pty) Ltd v Davis
,
52
s
32 of the Constitution has made the right of access to information a
foundational value of our law. Subsection 32(1)
(b)
of the
Constitution confers on everyone the right of access to ‘any
information that is held by another person and that is
required for
the exercise or protection of any rights’. The high court
cannot be faulted for finding that the parties seeking
the
information which was the subject-matter of the application before it
were entitled, as a matter of right, to it.
The questions of
(i) whether the making of a declaratory order is discretionary; (ii)
if so, whether the high court exercised its
discretion and (iii) if
so, whether it did so in a judicial manner
[70] The portion of s
19(1)
(a)
(iii) of the Supreme Court Act, upon which Spencer and
his associates rely, provides that the high court has the power:
‘
[I]n
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.’
[71] Watermeyer JAsaid in
Durban City Council v Association of Building Societies
:
53
‘
The
question whether or not an order should be made under this section
has to be examined in two stages. First the Court must be
satisfied
that the applicant is a person interested in an “existing,
future or contingent right or obligation,” and
then if
satisfied on that point, the Court must decide whether the case is a
proper one for the exercise of the discretion conferred
on it
.’
This
well-known dictum has been applied in the following cases upon which
Spencer and his associates relied:
Ex
parte Nell
;
54
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam &
another; Maphanga v Officer Commanding, South African Police
Murder
and Robbery Unit, Pietermaritzburg & others
55
and
Cordiant Trading
CC v Daimler Chrysler Financial Services (Pty) Ltd
.
56
[72]
These principles relating to the two-stage enquiry which a court must
undertake before it may make a declaratory order have
been affirmed
in other cases decided in this court such as
Reinecke
v Incorporated General Insurances Ltd
57
and
South African Mutual Life Assurance
Society v Anglo-Transvaal Collieries Ltd
;
58
and have received affirmation in the Constitutional Court in
J
T Publishing (Pty) Ltd v Minister of Safety and Security &
others
59
and
Rail Commuters
Action Group & others v Transnet Limited t/a Metrorail &
others
.
60
[73]
There are a number of deficiencies in the complaint by Spencer and
his associate that, if one reads the judgment of the high
court,
there is nothing to indicate that it even gave consideration to the
principles in
Durban City Council
or the discretion conferred upon it in terms of s
19(1)
(a)
(iii)
of the Supreme Court Act, never mind having applied its mind to an
examination of all relevant factors to decide whether or
not to
exercise its discretion.
[74]
As mentioned earlier, Mr Olsen submitted that s 19(1)
(a)
(iii)
of the Supreme Court Act was of no application in the present matter.
His argument was that, in terms of the adjectival law
on the point –
which derives from our common law – his clients would have been
able to approach the court and obtain
an order of the kind in
question. They did not need ss 19(1)(
a
)(iii)
of the Supreme Court Act to empower them to do so. In
Geldenhuys
61
Innes CJ, after a comprehensive review of the
South African authorities on the matter, held that where a litigant
proves that there
had been an actual infringement of his rights, he
is entitled to a declaration of rights on that issue.
62
That this case remains authoritative in our law was confirmed by this
court in
Coin Security Group (Pty) Ltd v
SA National Union for Security Officers & others
.
63
[75]
Ever since
Dhanabakum v Subramanian &
another
,
64
it has been clear that a statute must be construed in conformity with
the common law rather than against it, except where and so
far as the
statute is plainly intended to alter the common law. This rule of law
has been more recently affirmed in this court
in
National
Automobile and Allied Workers’ Union (now known as National
Union of Metalworkers of South Africa) v Borg-Warner
SA (Pty) Ltd
.
65
Mr Olsen is therefore correct: s 19(1)(
a
)(iii)
of the Supreme Court Act supplements the common law to fill
lacunae
pertaining to the obtaining of declaratory orders.
The subsection neither repeals nor replaces the common law.
[76] The shareholders’
agreement may therefore well have consequences once certain
information comes to light as a result
of the court order. These
consequences may not be intangible but may indeed also be measurable
in ways with which lawyers are familiar.
It cannot be said that,
consequent upon the determination by the high court, Memani and the
Trust would be unable to claim any
relief.
[77] Sight should not be
lost of the fact that the historical aversion to granting declaratory
orders arose from the reluctance
on the part of the courts to deal
with or pronounce upon academic or abstract points of law or to act
as advisers to litigants.
In this regard it is helpful to read
Corbett CJ’s remarks in
Shoba
.
66
The absence of an ‘academic’ character to the relief
obtained in the high court is a further indicator that, as a matter
of procedure, Memani and the Trust would have been able, under our
common law, to approach that court.
[78] Memani and the Trust
have a right to the declaratory order in terms of the aforementioned
qualifying words on s 19(1)(
a
)(iii) of the Supreme Court Act.
Memani also has right, procedurally enforceable at common law, to be
a director of Emcom until
he is removed in conformity with both s 220
of the old Companies Act and the shareholders’ agreement.
Furthermore, Memani
and the Trust have a right, procedurally
enforceable at common law, to receive the information for which they
have made application.
[79] There is no basis
upon which to interfere with the order of the high court. Both sides
considered it appropriate to brief two
counsel. In the result, there
is no reason not to allow the costs of two counsel.
[80] I should have
dismissed the appeal with costs, including the costs of two counsel.
_______________________
N P WILLIS
JUDGE OF APPEAL
APPEARANCES:
For the Appellant: N G
Winifred
Instructed by:
Selzer Associates Inc,
Durban
E G Cooper Majiedt Inc,
Bloemfontein
For the Respondent: PJ
Olsen SC (with him, A J Boulle)
Instructed by:
Bowman Gilfillan,
Johannesburg
c/o
Symington & De Kok, Bloemfontein
1
A
number of other defences were raised. It is not necessary to deal
with them.
2
Para
16.
3
Para
13 fn 1.
4
See:
Michaelson v Lowenstein
1905 TS 324
at 328;
Van As v
Appollus&Andere
1993 (1) 606 (C) at 609G-610B.
5
Marks
&Kentor v Van Diggelen
1935 TPD 29
at 37.
6
CaesarstoneSdot-Yam
Ltd v The World of Marble and Granite CC
(741/12)[2013] ZASCA
129 (26 September 2013) para 23;
Cook v Muller
1973 (2) SA
240
(N) at 246B-D.
7
Per
Wallis JA in
Caesarstone
(supra) para 21.
8
It
is common cause that the shareholders and directors of Emcom have
changed from time to time. The second, fourth, and seventh
respondents are no longer shareholders of Emcom and a certain Ms
Vermeulen has in the meantime become one. It is stated in the
appellants’ answering affidavit that‘[a]ll interested
parties who have not been cited in the action due to the changes
in
directorship and shareholding will be joined in the action in due
course.’
9
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
10
Para
10 (supra).
11
Gohlke
and Schneider & another v WestiesMinerale (Edms.)Bpk&
another
1970 (2) SA 685
(A).
12
Geldenhuysand
Neethling v Beuthin
1918 AD 426.
13
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
2001
(4) SA 542
(SCA) para 16
14
Socratous
v Grindstone Investments
2011 (6) SA
325
(SCA para 13.
15
45.5.27.
16
Marks
and Kantor v Van Diggelen
1935 TPD 29
at 38.
17
New
Zealand Insurance Co Ltd v Stone
&
others
1963 (3) SA 63 (C).
18
Ibid.
19
Nel
v Silicon Smelters (Edms) Bpk& ’n ander
1981
(4) SA 792
(A) at 800F-801C.
20
International
Tobacco Company of South Africa Limited v United Tobacco Companies
(South) Limited
1953 (1) SA 241
(W).
21
Solar
Basic Industries Inc v Advance Transformer Company of South Africa
(Proprietary) Ltd and Fluorescent Corporation SA Ballast
Manufacturers (Proprietary) Ltd
1970
BP 448.
22
Michaelson
v Lowenstein
1905 TS 324.
23
CaesarstoneSdot-Yam
Ltd v The World of Marble and Granite CC
(741/12)
[2013] ZASCA
129
(26September 2013) para 23.
24
Supra
para 45.
25
1973
(2) SA 240
at 244H-246B.
26
Supra
para 36.
27
1987
(1) SA 562
(W) at 567G.
28
Supra
para 43.
29
National
Coalition for Gay and Lesbian Equality & others v the Minister
of Home Affairs& others
2000 (2) SA 1
(CC) para 11.
30
Ex
parte Neethling& others
1951 (4)
SA 331
(A) at 335B-E.
31
Supra
para 11.
32
Radebe&
others v Eastern Development Board
1988 (2) SA 785
(A) at
793C-H.
33
Willcox&
others v Commissioner for Inland Revenue
1
960
(4) SA 599
(A) at 602.
34
At
793C-E.
35
Radebe
supra
at 793F-G.
36
Trope
& others v South African Reserve Bank
[1993] ZASCA 54
;
1993
(3) SA 264
(A) at 273A-B.
37
McWilliams
v First Consolidated Holdings (Pty) Ltd
1
982
(2) SA 1
(A) at 10E-H.
38
Supra
at 693E-694F.
39
Alpha
Bank Bpk&anderev Registrateur van Banke&andere
[1995] ZASCA 84
;
1996
(1) SA 330
(A) at 348G-H.
40
Randcoal
Services Ltd & others v Randgold and Exploration Company Ltd
[1998] ZASCA 45
;
1998 (4) SA 825
(A) at 840G-H.
41
Delfante&
another v Delta Electrical Industries Ltd
1992
(2) SA 221
(C).
42
Burroughs
Machines Ltd v Chenille Corporation of South Africa (Pty) Ltd
1964 (1) SA 669
(W) at 670F-671C.
43
Barlows
Manufacturing Co Ltd & others v R N Barrie (Pty) Ltd &
others
1990 (4) SA 608
(C).
44
At
230C-D.
45
Desai
& others v Greyridge Investments (Pty) Ltd
1974
(1) SA 509
(A).
46
Stewart
v Schwab & others
1956 (4) SA 791
(T) at 793H.
47
Desai
a
t 518H-519A.
48
Amoils
v Fuel Transport (Pty) Ltd & others
1978
(4) SA 343
(W) at 347C-G.
49
Moleah
v University of Transkei & others
1998
(2) SA 522
(TkH).At 533F-G.
50
Griffiths
&Inglis (Pty) Ltd v Southern Cape Blasters (Pty) Ltd
1972 (4) SA 249
(C) at 254C.
51
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634I.
52
Clutchco
(Pty) Ltd v Davis
2005 (3) SA 486
(SCA) para 1.
53
Durban
City Council v Association of Building Societies
1942 AD
27
at 32.
54
Ex
parte Nell
1963 (1) SA 754
(A) at
759A-B.
55
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam &
another; Maphanga v Officer Commanding, South African
Police Murder
and Robbery Unit, Pietermaritzburg & others
1995 (4)
SA 1
(A) at 14F-15F.
56
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005 (6) SA 205
(SCA) para 16.
57
Reinecke
v Incorporated General Insurances Ltd
1974
(2) SA 84
(A) at 93A-H.
58
South
African Mutual Life Assurance Society v Anglo-Transvaal Collieries
Ltd
1977 (3) SA 642
(A) at 658H.
59
J
T Publishing (Pty) Ltd v Minister of Safety and Security &
others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) para 15.
60
Rail
Commuters Action Group v Transnet Limited t/a Metrorail & others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) para 106.
61
Fn
2 s
upra.
62
At
440 to 441.
63
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers &
others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 7.
64
Dhanabakum
v Subramanian & another
1943 AD
160
at 167.
65
National
Automobile and Allied Workers’ Union (now known as National
Union of Metalworkers of South Africa) v Borg-Warner
SA (Pty) Ltd
1994 (3) SA 15
(A) at 22J-23A.
66
Supra
at 14F-G.