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[2016] ZAECPEHC 9
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Tryzone Fourteen (Pty) Ltd v Batchelor N.O and Others (3535/2013) [2016] ZAECPEHC 9 (4 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO: 3535/2013
DATE:
04 MARCH 2016
In
the matter between:
TRYZONE
FOURTEEN (PTY)
LTD
.....................................................................................
Applicant
And
PETER GEORGE
BATCHELOR
N.O
......................................................................
First
Respondent
ANDREW JOHN
BATCHELOR
N.O
....................................................................
Second
Respondent
ROBIN OWEN
JEFFERSON
N.O
...........................................................................
Third
Respondent
ROSEMARY ANN
BATCHELOR
N.O
..................................................................
Fourth
Respondent
MICHAEL JAMES
ORGANISATION
......................................................................
Fifth
Respondent
ARTHUR J
MARRINER
............................................................................................
Sixth
Respondent
ALSAK
(PTY)
LTD
.................................................................................................
Seventh
Respondent
Heard
on: 26 March 2015
Delivered
on: 4 March 2016
JUDGMENT
MAKAULA
J
:
A.
Introduction
:
[1]
The source of this application is an advertisement which reads:
“
PRIME
COMMERCIAL PROPERTY
A
rare opportunity to acquire an excellent income-producing investment
in a sought after area. The property, which is fully
let, has
great exposure, loads of parking and easy access to airport,
freeways, beachfront and all other amenities. Tenants
are a
blue-chip global telecom company, and a popular restaurant geared to
cater for large functions.” (Sic.)
PARTIES
:
[2]
The applicant bought the prime commercial property
(the
property)
referred to in a public
auction.
[3]
The first to fourth respondents are the Trustees of Unit 1, Manor
Hastings Trust hereinafter
referred to as the Trust. The fifth
respondent is an organisation of auctioneers (auctioneers). The sixth
respondent served as
a representative of the Trust in selling the
property. The sixth respondent is the Director of the
seventh respondent.
The seventh respondent is a vehicle through which
the sixth respondent operated.
[4]
The applicant became interested in the property and made enquiries
from the auctioneers
about the property from the fifth respondent.
On 3 March 2013, pursuant to the enquiries made by the applicant, the
auctioneers
sent to the applicant a two page document which confirmed
that the property was a commercial property with two lease
agreements,
namely, (a) a lease with admirals starting from 1
September 2012 to 31 August 2017 at a monthly rental of R45 000.00
and (b) a
lease with ZTE starting from 1 November 2012 to 31 October
2013. On 5 March 2013, the applicant went to view the
property.
The applicant met a certain Mr Galpin who represented
the fifth respondent. Mr Galpin showed the applicant the property.
Apart from the structure, Mr Galpin showed the applicant parking
bays, a 400m² veranda and informed him about undercover parking
bays which form part of the property. The significance of the
areas pointed out by Mr Galpin shall appear below.
[5]
On 12 March 2013, the applicant attended the public auction.
Prior to the commencement
of the auction, the applicant signed the
respondents’ standard ‘
rules
of auction’
by writing his name
and his phone numbers. It is now settled between the parties
that Galpin read out the rules of auction
before the commencement of
the auction. The applicant paid a deposit of R864 630.00 made up as
follows, R835 740.00 as a deposit
and R28 890.00 to the Trust’s
attorneys for transfer costs.
[6]
The amount of R835 740.00 was distributed as follows
6.1
A deposit of R390 000.00 to the Trust;
6.2
An amount of R222 300.00 to Mr Marriner, an agent of the Trust as
commission;
6.3
An amount of R223 440.00 to the auctioneers, as agents of the
respondents as commission.
[7]
After the payment of the deposit and the signing of the Deed of Sale,
various problems
cropped up between the applicant and the respondents
which led to the Trust cancelling the agreement on 17 September 2013
before
payment of the balance and the transfer of the property.
[8]
Further correspondence was exchanged between the parties pursuant to
the cancellation
of the agreement by the Trust which led to the
applicant also cancelling the agreement citing numerous fraudulent
misrepresentations
on the part of the respondents’
cancellation. That culminated in the applicant launching the
current proceedings seeking
the following relief:
8.1
That the respondents, on behalf of the trust, and also personally
jointly and severally,
be ordered to pay the sum of R864 630.00 to
applicant, together with interest thereon at the legal rate from 14
March 2013;
8.2
Alternatively
, that respondents, on behalf of the trust and
also personally jointly and severally, be ordered to pay the sum R390
000.00 and
fifth respondent the sum of R445 740.00 to applicant,
together with interest thereon at the legal rate from 14 March 2013;
8.3
Ancillary relief.
[9]
The applicant insisted on the date of hearing that the matter proceed
and be resolved
on the basis of fraudulent misrepresentations
perpetrated by the fifth, sixth and seventh respondents who at all
material times
were acting as agents of the Trust.
The
applicant’s case
:
[10]
The applicant relies mainly on misrepresentations made in respect of:
10.1
the advertisements; and
10.2
the lease agreement.
The
advertisements and the lease agreement
:
[11]
The applicant alleges that the respondents misrepresented to it in
their advertisement that the
property was a rare opportunity to
acquire an excellent income-producing investment in sort after area.
[12]
The applicant alleges that the respondents with intent to defraud
him, failed to disclose the
following about the property:
12.1
that the Admirals did not consider to be bound by the lease agreement
because of a suspensive clause;
12.2
that the Admirals were under business rescue;
12.3
that the Admirals did not pay deposits towards the rental of the
property; and
12.4
that the Admirals were in arrears totalling R159 000.00.
12.5
that there was an arbitration award against the Trust that had not
yet been complied with and which had substantial
repercussions;
12.6
that there were substantial hidden costs;
12.7
the applicant further refers to the fact that the fifth, sixth and
seventh respondents misrepresented that
a veranda of 400m² was
part of the exclusive use area of the part of the property and that
there were 63 parking bays and
fourteen undercover bays allocated to
the property;
12.8
that the fifth respondent and/or Mr Mariner misrepresented that the
Trust held deposits from the leases which
would be paid to the
successful bidder on the date of the occupation.
[13]
The applicant argues that the three facts about the status of the
Admirals is contrary to what
is postulated in the advertisement.
Furthermore, the above facts were known to the sixth respondent based
on the letter sent
by the latter to the second respondent on 12 March
2013, immediately after the sale, which contains the following facts:
“
Had
Admirals closed down last week I don’t think we would have had
the same interest. No sign of De Costa or Gutsche.
.
. . At the end of the day the purchaser is facing an outlay of about
R5 million.
A
lot of money when you have a ‘dicey’ tenant with a long
lease and a blue-chip tenant with a short lease. Not
a
situation conducive to peaceful sleep.” (Sic)
[14]
The applicant contends that the information about the lease agreement
as referred to above misrepresents
what has been contained in the
written advertisement.
[15]
The applicant submits that the fifth, sixth and seventh respondents,
as agents of the Trust,
were guilty of fraudulent misrepresentation
entitling the applicant to cancel the agreement and claim
restitution.
Trust’s
case
:
[16]
The Trust submits that the applicant should have foreseen the
insurmountable factual dispute
of fact especially immediately after
the answering affidavit was filed and not persist with the
application.
[17]
Mr Huisamen, for the Trust, submitted that the applicant knew about
the misrepresentations long
before the Deed of sale was signed.
Despite that, the applicant proceeded with the sale agreement seeking
a reduction of
the purchase price instead of cancelling the sale
agreement. In support of this contention, Mr Huisamen referred
to a letter
dated 20 May 2013 written by the applicant’s
attorneys to Trust’s attorneys where the following appears:
“
The
law is clear the terms of the agreement will not assist your clients
if they made a deliberate misrepresentation.
If
it eventually transpires that the lease is unenforceable
,
that the deposit was not paid or that the lease defaulted and your
clients failed to disclose this to our client, the only reasonable
inference is that your clients deliberately failed to do so. In
this regard we hereby formally notify you that our client
intends to
enforce his aedilitian remedies.
More
especially our client intends to institute action for the reduction
of the purchase price
.
The
fact that a commercial agreement of lease maybe unenforceable or that
the lessee is defaulting on his obligations clearly a
material
issue.
Your clients were obliged
to disclose any such information to our client
.”
(Emphasis added)
[18]
The Trust submits further that, in spite of the knowledge of the
misrepresentations and in particular,
that there were problems with
the Admirals’ lease agreement, the applicant’s attorneys
wrote to the Trust’s attorneys
on 29 May 2013 demanding payment
of the deposits by the Admirals. The relevant letter reads:
“
The
agreement of sale furthermore provides that our client received
occupation of the property subject to the existing tenancies
and
occupancies from 1 April 2013. It
follows
that the deposits must be paid over to our client forthwith, as well
as the rents received since then after accounting for
the rates,
taxes, levies etc. We reiterate our client intends to proceed
with the agreement of sale but also intend to enforce
their
aedilitian remedies
.”
(Emphasis added)
[19]
The Trust argues that even on 13 August 2013 the applicant refused to
pay over the guarantees,
demanding the reduction of the purchase
price. The letter referred to reads:
“
.
. . The guarantees cannot be provided before the reduced purchase
price as agreed upon. As soon as the price as agreed upon,
the
guarantees will be provided forthwith . . .
4.
It is further patently clear that your client has deliberately
concealed material facts and defects from our client – this
is
not a ferraries – case. The property was further
advertised and sold with existing lease agreements in place.
There can be no doubt that our client is entitled to a reduction in
the purchase price or even to cancel the agreement. . . .
Our client was and remains prepared to attempt to resolve this
matter, but that comes from two sides.”
[20]
The above should be viewed in the backdrop of the fact that as far
back as 15 April 2013, the
applicant knew of Shamley’s attitude
that Admirals’ lease might not be binding and that the Admirals
did not pay a
deposit, so argues the Trust. The Trust further
submits that on or about 20 May 2013, the applicant knew that the
Admirals
were defaulting in its obligations to pay rental. The
Trust states that on 29 May 2013 the applicant it did not take
occupation
of the property on 1 April 2013 but rather elected to
enforce the agreement. At that time, the applicant was aware of
all
the fraudulent misrepresentations relied upon by it, so argues
the Trust.
[21]
The Trust contends that the lease agreement between it and the
Admirals is enforceable despite
the Admirals believing otherwise.
Therefore, the Trust’s contention is that there is a dispute as
regards whether the
applicant was misled in respect of the lease
agreement. Mr Huisamen argued that there is also a dispute of
fact about whether
there were fraudulent misrepresentations made by
the respondents.
[22]
The Trust argues that there is a massive dispute of facts on the
entitlement of either party
to have cancelled the agreement which
cannot be resolved on the papers. In substantiation, the Trust
argues that the applicant
elected to abide by the agreement and
enforce it, therefore the applicant had a duty to comply with the
obligations in terms of
the agreement which included the obligation
to supply guarantees and yet the applicant refused to supply same.
The Trust
further argues that if the Trust validly cancelled the
agreement, clause 9.1.2 of the agreement applies and therefore the
applicant
would not be entitled to any restitution. Of
importance, so notes the Trust is that the applicant cannot resile
from a cancelled
agreement and claim restitution. This, the
Trust bases on the fact it was the first to cancel the agreement.
If the
cancellation by the Trust was lawful and in terms of the
agreement therefore the consequences of such cancellation would flow
from
the agreement itself, so argues the Trust.
Fifth
respondent’s case
:
[23]
Mr Williams, on behalf of the fifth respondent, submitted that the
Trust validly cancelled the
agreement based on the fact that the
applicant failed to provide guarantees and was aware of the problems
which the lease agreement
had even prior to the signing of the Deed
of sale. The fifth respondent argues that the applicant became
aware of all the
problems the lease had and all the
misrepresentations which the applicant now complains about but did
not elect within a reasonable
time to opt out of the agreement.
For that reason, therefore, the fifth respondent joins issue with the
Trust in submitting
that the agreement of sale and the rules of
auction are applicable in this matter. The fifth respondent
submits that he is
entitled to keep its commission due to clause 9 of
the rules of auction.
[24]
Furthermore the fifth respondent relies on clause 8.5 of the
agreement which reads as follows:
“
The
auctioneer shall not be personally liable in consequence of any
representation made by him or before the sale nor shall he be
personally liable for breach of any warranty given by him, whether in
regard to his authority to sell the property in question
or in regard
to the quantity, quality or condition of the property in question.”
[25]
The fifth respondent submits that clause 8.5 is an exclusionary
clause necessitating the applicant
to allege and to prove fraud on
the part of the fifth respondent.
[26]
The fifth respondent further argues that the applicant has failed to
establish the requirements
of fraud and referred to quite a number of
decisions in that regard. In amplification of the argument the
fifth respondent
states that firstly, the applicant failed to
establish that the representation was made to the applicant by the
fifth respondent,
secondly the content of that representation,
thirdly that representation was untrue, fourthly that the fifth
respondent knew that
the representation was untrue and lastly, that
the respondent intended for the applicant to act on that
representation and that
the respondent was in fact induced to act
upon that representation which was made by the fifth respondent.
The argument proffered
by the fifth respondent is that there are
disputes of fact that are insurmountable regarding the enforceability
of the lease agreement
but the applicant chose to proceed by way of
application instead of action proceedings. The fifth respondent
submits that
even if it maybe assumed that the lease agreement was
unenforceable, there is absolutely no way that the fifth respondent
could
have known about the misrepresentation. That much, so
argues the fifth respondent is confirmed by the deponent on behalf of
the applicant in reply when he said:
“
I
do not know whether the fifth respondent was aware that these
representations were false
. I
would be surprised if the fifth respondent was not aware,
specifically since Mr Shamley told Mr Galpin that Admirals did
not
believe that they are bound to the lease. I would also have
expected the fifth respondent to ensure that their advertisements
are
in fact factually correct. I submit however that this does not
matter.
It is not necessary for
the applicant to prove that both the trustees of the trust and the
fifth respondent were aware of the falseness
of the representations
before the applicant can resile from the agreement and claim
restitution
.” (Emphasis
added)
[27]
The fifth respondent further relies on the evidence of Mr Shamley
whose affidavit reads in this
regard:
“
It
is indeed so that I did not inform the fifth respondent or its
representatives that the Admirals may not continue with the lease.
Mr Coutsourides must have misunderstood me.”
[28]
The fifth respondent argues that the applicant has failed to
establish that the respondents acted
fraudulently. Similarly,
the applicant failed to prove that the fifth respondent knew about
the falsity of the representations
made in respect of the veranda,
parking bays and undercover parking.
The
sixth and seventh respondents’ case
:
[29]
Mr Van Rooyen on behalf of the sixth and seventh respondents in his
supplementary heads of argument
and in court argued that the matter
should be referred to oral evidence due to the fact that there are
material disputes of fact
regarding the alleged fraudulent
misrepresentations made by the sixth and the seventh respondents.
He argued that one material
fact the applicant must prove which
remains in dispute is the alleged fraudulent intent with which
certain facts were made or not
disclosed. He argued that it is
difficult on the papers as they stand to know whether the applicant
has discharged the onus
on which rest upon it. It would not be
easy to establish, on the balance of probabilities, whether there is
a dispute of
fact without subjecting the parties to
cross-examination. He submitted that in the present matter this
court will only benefit
from hearing
viva
voce
evidence to determine the central
issue of whether there was a non-disclosure whilst under a duty to
speak and also whether such
non-disclosure was calculated to mislead
the applicant with fraudulent intent. Without going to the
facts therefore the sixth
and seventh respondents submitted that the
matter should be referred to oral evidence.
Fraud
:
[30]
In
Standard
Bank vs Duplooy & Another; Standard Bank vs Coetzee &
Another
[1]
as referred to in
Courtney-Clarke
vs Bassingthwaightee
[2]
De Villiers CJ said the following about fraud:
“
There
is no principle more clearly established in the administration of
justice than that fraud must not only be alleged, but that
it must be
clearly and distinctly proved.”
The
principle as enunciated in the preceding quotation was cited, with
approval, by the Supreme Court of Appeal in
AMI
Forwarding (Pty) Ltd v Government of the Republic of South Africa
(Department of Customs and Excise) and Another
.
[3]
[31]
The onus of proving fraud is on the applicant. Although the
onus is the ordinary civil
one, i.e. one that must be discharged on a
balance of probabilities, one must bear in mind that fraud will not
likely be inferred.
[4]
The
essential requirements or allegations for a claim or defence based on
fraud
[5]
are the following:
31.1
there must be a representation made by one party or his agent;
31.2
knowledge by the representor or the principal that representation is
false;
31.3
that the representation induced the representee so to act;
31.4
the representee suffered damages as a result of the fraud.
[6]
[32]
Furthermore if reliance is placed on fraudulent non-disclosure, facts
giving rise to the duty
to disclose must be set out. It is
essential to set out that the duty to disclose was deliberately
breached in order to deceive.
[7]
[33]
The dispute of facts in this matter is massive and spreads across to
all the issues raised.
The issues are further clouded by the
actions taken by the applicant pursuant to its discovery of the
misrepresentations.
The applicant, having discovered the
fraudulent misrepresentations made by the Trust and the fifth to
seventh respondents, at the
initial stages of the agreement, decided
to ignore them and elected to enforce the agreement. Even after
the Trust had cancelled
the agreement, whether correctly or
incorrectly so, the applicant rejected the cancellation and elected
to enforce the agreement
intimating that it shall move for the
reduction of the purchase price. As reflected in the facts
above and the argument,
the applicant was aware that the
misrepresentations relied upon were vehemently disputed by the
respondents even before launching
these proceedings.
[34]
The misrepresentation alleged by the applicant about the
advertisement cannot be taken in isolation.
It should be
assessed in the light of the correspondence that was exchanged after
the sale of the property. The respondents
deny that they
negligently or with intent misrepresented to the applicant that the
property was anything other than what appears
on the adverts.
The Trust argues that the property was indeed sold with lease
agreements in place especially that which is
between it and the
Admirals. This should be viewed in the light of the insistence
by the Trust that the lease agreement between
it and Admirals is
enforceable. The misrepresentation alleged by the applicant is
a subject of factual dispute between the
parties which cannot be
resolved on the papers as appearing on the facts of this matter.
[35]
There is also a massive dispute of fact as to whether the respondents
made false representations
to the applicant which induced it to act
to its detriment. This find support from the argument of the
respondents that immediately
after the payment of the deposit the
applicant knew about the problem of the lease agreement with the
Admirals, that the Admirals
were behind with their rental and never
paid a deposit. But in spite of such knowledge, the applicant
signed the deed of
sale
(relative to
such knowledge)
and elected to enforce
the agreement. It cannot be readily ascertained that the
applicant was induced by the representations
made by the respondents
in buying the property. This issue and others can only be
resolved if oral evidence is heard.
[36]
The alleged misrepresentation made and the circumstances under which
they were made in respect
of the advertisement and the lease
agreement with the Admirals are intertwined. Mr Huisamen’s
supplementary heads of
argument correctly and succinctly summarise
the dispute of fact in respect of these issues as follows:
36.1
Whether or not the rules of auction were read out aloud by the
auctioneers prior to the auction;
36.2
whether or not the applicant’s representative read the rules of
auction and conditions of sale prior
to the auction;
36.3
whether or not the applicant knew what the status was of the
Admirals’ lease prior to the auction;
36.4
whether or not the cancellation of the agreement by the trust on 17
September 2013 was valid and enforceable;
36.5
whether or not the Trust’s said cancellation of sale on 17
September 2013 constituted a repudiation
of the agreement, as
contended for by the applicant,
36.6
whether or not the applicant’s cancellation of the agreement on
20 September 2013 was valid and enforceable;
36.7
whether or not the voetstoets clause contained in clause 8 of the
agreement was valid and enforceable;
36.8
whether or not the trust is entitled to rely on the provisions of
clause 9.1.2 of the agreement;
36.9
whether or not the trust has disputed the applicant’s
allegations of misrepresentation on the part
of its representatives
prior to the launching of the application;
36.10
whether or not the trust or any of its representatives committed
fraud towards the applicant;
36.11
whether or not the trust endeavoured to hand over the occupation of
the property to the applicant in terms of the agreement;
36.12
whether or not the Admirals’ lease was binding and enforceable;
36.13
whether or not the applicant was in material breach of the agreement
at the time of its purported cancellation thereof.
[37]
In
Saoffiantim
v Mould
[8]
Prince JP correctly stated that:
“
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the court
can be
harm strong and circumvented by the most simple and blatant
stratagem. The court must not hesitate to decide an issue
of
fact on affidavit merely because it may be difficult to do so.
Justice can be defeated or seriously impeded and delayed
by an
over-fastidious approach to a dispute raised in affidavit.”
[38]
Dismissing the application instead of referring it to oral evidence
shall not be a solution. That shall necessitate the
applicant
pursuing action proceedings.
In
terms of rule 6(5)(
g
)
of the Uniform Rules, a court has a wide discretion with regard to
referring matters to oral evidence where application proceedings
cannot be properly decided by way of affidavit. An application
to refer a matter to evidence should be made at the outset
and not
after argument on the merits. However, in certain circumstances
(and exceptional cases), the court may decide that
a matter should be
referred to oral evidence even where no application for such referral
had been made in the court below.
[9]
The
Supreme Court of Appeal, in
Pahad
,
held that:
“
it
has been held in a number of cases that an application to refer a
matter to evidence should be made at the outset and not after
argument on the merits. As was stated by Corbett JA the
rule is a salutary general rule. Unnecessary costs and delay
can be
avoided by following the general rule. But Corbett JA also stated
that the rule is not inflexible. In
Du
Plessis and another NNO v Rolfes Ltd
[1996] ZASCA 45
;
1997
(2) SA 354
(SCA) this Court dealt with an application which was made
for the first time during argument in this Court. The
application
was dismissed but it is implicit in the judgment that, in
appropriate circumstances, this Court may decide that a matter should
be referred to evidence even where no application for such referral
had been made in the court below. It would naturally be in
exceptional cases only that a court will depart from the general
rule.” (Cases cited omitted.)
[39]
I am satisfied that this is an appropriate case for this Court to
refer the matter for hearing. The dispute is massive
and
insurmountable to be resolved on the papers. The dispute of
facts goes to the heart of the issues between the parties.
I am
further of the view that the applicant has not established the
allegations of fraud on the papers and the matter should be
referred
to oral evidence.
Consequently,
the following order shall issue:
1.
The application is postponed to a
date to be arranged between the parties and the Registrar for the
hearing of oral evidence in
terms of Rule 6(5)(g) of the Uniform
Rules of Court (Rules of Court) for the determination of the relief
claimed in the amended
notice of motion;
2.
If any of the parties wish to call a
witness who has not filed an affidavit herein, a statement
summarising the evidence to be given
by such witness shall be filed
by not later than 15 (fifteen) days before the hearing;
3.
Discovery of documents not forming
part of the application papers shall take place in accordance with
the provisions of the Rules
of Court;
4.
If either party wishes to call an
expert witness, expert notices and summaries shall be filed in
accordance with the provisions
of the Rules of Court;
5.
The costs of the application shall
stand over for determination by the Court hearing the oral evidence;
6.
The first, second and fourth
respondents, on behalf of the Trust, will retain the amount of R390
000.00 in the interest bearing
trust account of their attorneys,
pending the outcome of the proceedings.
M
MAKAULA
JUDGE
OF THE HIGH COURT
Appearances
:
Applicant:
Adv Pienaar SC
instructed by
Schoeman
Oosthuizen Inc
167
Cape Road
PORT
ELIZABETH
1
ST
,
2
ND
, 3
RD
& 4
TH
Respondents: Adv
Huisamen SC
instructed by
Rushmere
Noach Inc
5
Ascot Office Park, Conyngham Street
Greenacres
PORT
ELIZABETH
5
TH
Respondent: Adv Williams
instructed by
P
G Prinsloo Attorneys
157
Cape Road
Mill
Park
PORT
ELIZABETH
6
TH
& 7
TH
Respondents: Adv Van Rooyen
instructed by
Jankelowitz
& Schärges
41
Bird Street
Central
PORT
ELIZABETH
[1]
1899 (16) SC 161
at 166.
[2]
1991 [3] All SA 625 (Nm),
1991 (1) SA 684
(Nm) 689.
[3]
[2010]
4 All SA 347
(SCA) at para [33].
[4]
Gilbey
Distillers & Vintners Pty Ltd vs Morris NO
1990
(2) SA 217
at 225J-226A.
[5]
See
also Harms LTC,
Amler’s
Precedents of Pleadings
7 ed. LexisNexis, Durban .
[6]
Ibid
at
215.
[7]
Ibid
at
215-6.
[8]
1956 (4) SA 150E
at 154F.
[9]
Pahad
Shipping CC v Commissioner, SARS
[2010] 2 All SA 246
(SCA).