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[2018] ZAECPEHC 35
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Skillfull 1059 (Pty) Limited v Eastern Cape Liquor Board and Another (2851/2017) [2018] ZAECPEHC 35 (31 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 2851 /
2017
Date heard: 26
June 2018
Date
delivered: 31 July 2018
In
the matter between
SKILLFULL
1059 (PTY)
LIMITED Applicant
And
EASTERN
CAPE LIQUOR
BOARD First
Respondent
THE
MEC, ECONOMIC DEVELOPMENT, TOURISM
AND
ENVIRONMENTAL
AFFAIRS Second
Respondent
JUDGMENT
GOOSEN,
J.
[1]
The
applicant seeks an order declaring that s 22 (11) of the Eastern Cape
Liquor Act, Act 10 of 2003 (hereinafter “the Liquor
Act”)
does not apply to the conversion of a close corporation to a company
pursuant to Schedule 2 of the Companies Act, Act
71 of 2008
(hereinafter “the Companies Act”). It also seeks an order
mandating the first respondent to place a copy
of the applicant’s
registration certificate on file and to amend its records
accordingly.
[2]
The
application is opposed by the first respondent. The second respondent
abides the decision of the court. The application raises
the question
of the proper interpretation of the provisions of the Liquor Act and
the Companies Act. The first respondent contends
that the Liquor Act
makes no provision for the amendment of the applicant’s
certificate of registration authorising the sale
of liquor, save by
way of transferring said rights in terms of s 22 (11) of the Liquor
Act. It therefore contends that the envisaged
conduct would be
ultra
vires
the provisions of the Liquor Act.
[3]
It
is common cause that Skillfull 1059 CC made application for
conversion of the close corporation to a company on 4 November 2014
in terms of Schedule 2 of the Companies Act; and that the conversion
was registered on the database of the Companies and Intellectual
Property Commission (CIPC) on 24 February 2015. The Certificate of
Registration in terms of Regulation 18 of the Companies Regulations,
2011 records the applicant as the converted entity.
[4]
It
is also common cause that prior to the conversion the first
respondent issued a certificate of registration in favour of
Skillfull
1059 CC authorising the retail sale of liquor for
consumption off-premises by the close corporation. Said certificate
has been
renewed from time to time.
[5]
Following
the conversion, the applicant’s attorneys notified the first
respondent of the conversion and requested it to update
its records
in accordance therewith. Following an exchange of correspondence and
discussions held between the parties (between
July 2015 and April
2017), the first respondent adopted the stance that the applicant is
required to follow the procedure set out
in s 22 of the Liquor Act.
This section provides for the transfer of registered rights to sell
liquor from the holder of such rights
to another person. The
applicant contends that such transfer of rights is not required and
that the first respondent must give
effect to the provisions of the
Companies Act.
[6]
Schedule
2 of the Companies Act provides for the conversion of a close
corporation to a company. Such conversion may be effected
at any time
and occurs by filing a notice of conversion in the prescribed manner
with the CIPC. The procedure is regulated by Regulation
18 of the
Companies Regulations. Item 1 (4) of Schedule 2 provides that:
(4) Upon
conversion of a close corporation in terms of this Schedule the
Commission must –
(a) cancel the
registration of that close corporation in terms of the Close
Corporations Act, 1984 (Act No. 69 of 1984);
(b) give notice in
the
Gazette
of the conversion of a close corporation into a
company; and
(c)
enable the Registrar of Deeds to effect the necessary changes
resulting from conversions and name changes.
[7]
Item
2 of Schedule 2 deals with the effect of conversion upon the legal
status of the entity concerned. Subsection (2) provides
as follows:
(2) On the
registration of a company converted from a close corporation –
(a) the juristic
person that existed as a close corporation before the conversion
continues to exist as a juristic person, but in
the form of a
company;
(b) all the
assets, liabilities, rights and obligations of the close corporation
vest in the company;
(c) any legal
proceedings instituted before the registration by or against the
corporation, may be continued by or against the company,
and any
other thing done by or in respect of the close corporation, is deemed
to have been done by or in respect of the company;
(d) any
enforcement measures that could have been commenced with respect to
the close corporation in terms of the Close Corporations
Act, 1984
(Act No. 69 of 1984), for conduct occurring before the date of
registration, may be brought against the company on the
same basis,
as if the conversion had not occurred; and
(e)
any liability of a member of the corporation for the corporation’s
debts, that had arisen in terms of the Close Corporations
Act, 1984
(Act No. 69 of 1984), and existed immediately before the date of the
registration, survives the conversion and continues
as a liability of
that person, as if the conversion had not occurred.
[8]
Based
on these provisions the applicant argued that, in the first instance,
the legal entity created by the incorporation of Skillfull
1059 CC
continued to exist through conversion, albeit in the form of a
company. The conversion accordingly did not create a new
or separate
legal entity. It was further argued that all of the rights which
vested in the close corporation immediately before
the conversion,
vest in the converted company. Accordingly, the rights conferred upon
Skillfull 1059 CC to engage in the retail
sale of liquor in terms of
the registration certificate issued by the first respondent, vest in
the applicant.
[9]
The
first respondent argued that the applicant is, on the face of it, a
separate legal entity. It was submitted that there is no
provision in
the Liquor Act which permits the conversion of a close corporation to
a company. Since the shareholding of the company
may change without
notice to the first respondent, “simple” registration of
the new entity may contravene s 34 of the
Liquor Act. In the light of
the absence of any provision in the Liquor Act the first respondent
would be acting
ultra
vires
its powers to effect the registration in the name of the applicant.
It can only do so in terms of 22 (11) of the Liquor Act.
[10]
Ms
Rawjee
,
on behalf of the first respondent, argued that to permit registration
of the converted company as a purveyor of retail liquor
in the
circumstances, would defeat the purposes of the Liquor Act. The
purpose of the Liquor Act as set out in s 2 thereof is to
regulate,
inter-alia
,
the sale of liquor by providing for registration of approved persons
or entities. The registration process seeks to manage and
reduce the
socio-economic and other costs of excessive alcohol consumption. The
first respondent is required, to this end, to regulate
the industry
by facilitating new entrants thereto, take into consideration
community considerations and to determine whether the
entity or
person seeking registration is a disqualified person. Section 19 of
the Liquor Act renders registration of persons wishing
to sell liquor
compulsory. The procedure for such registration is set out in ss 20
and 22. Once registration is approved the first
respondent is
required, in terms of s 25 (1) (b) of the Liquor Act to issue a
certificate of registration in the applicant’s
name, which
certificate is valid for a prescribed period.
[11]
In
terms of s 22 an applicant company or close corporation is required,
in its application, to provide details of its full name,
registration
number and address, and must provide the names and identity numbers
of its shareholders or members. Its application
must state that none
of these shareholders or members is disqualified from registration in
terms of s 21. Notice of the application
must be given to the ward
committee in whose area the premises are situated and the governing
body of every educational institution
with in a prescribed radius. An
opportunity is given for public comment and the lodging of
objections. Upon consideration of the
application and any objections
thereto the Board is required to give notice of its decision and to
provide reasons therefore.
[12]
Section
22 (11) makes provision for the holder of a registration certificate
to apply for the transfer thereof to another person
or entity. In
terms of s 22 (14) (a) the procedure and consultation process set out
in s 22 is applicable to an application for
the transfer of a
certificate of registration. Sections 28 and 29 of the Act deal with
non-compliance with the terms of registration
and the effect thereof.
[13]
Ms
Rawjee
argued that there is no provision in the Liquor Act which deals with
the position of a close corporation converted to a company.
She
pointed out that the applicant is a “regulated person or
entity” i.e. an entity which has been granted authority
to
conduct business by a “regulatory authority”. A
“regulatory authority” is an entity “established
in
terms of national or provincial legislation responsible for
regulating an industry, or sector of an industry”. The first
respondent is such an authority. Public regulation is defined to
include authorisation in terms of national, provincial or local
government legislation and includes the issuing of a licence.
[1]
[14]
The
first respondent’s argument proceeded along the lines that
since the applicant’s authority to conduct business as
a
retailer of liquor is to be determined by the first respondent, the
provisions of the Liquor Act are determinative. The applicant
can
only obtain such authority in the manner prescribed. It is
accordingly required to apply for a transfer of rights in terms
of s
22 (11). In support of the submission that the applicant is, for
purposes of the Liquor Act, to be treated as a separate legal
entity,
Ms
Rawjee
relied on
s 2
(2) of the
Close Corporations Act 69 of 1984
, as it has
been amended. That section provides as follows:
(2) A corporation
formed in accordance with the provisions of this Act is on
registration in terms of these provisions a juristic
person and
continues, subject to the provisions of this Act, to exist as a
juristic person, notwithstanding changes in its membership,
or its
conversion to a company in terms of Schedule 2 of the Companies Act,
until it is deregistered or dissolved –
(a) in terms of
this Act; or
(b)
in terms of the Companies Act, in the case of a juristic person that
has been converted to a company.
[15]
It
was submitted, therefore, that the applicant is either deregistered
or dissolved as a close corporation.
[16]
The
first respondent’s argument is founded upon two fundamental
assertions. The first is that the applicant as a converted
company
is, for the purposes of the Liquor Act, a separate legal entity. The
second is that there is no provision in the Liquor
Act to cater for a
converted company. The only procedure available to the converted
company is that provided for in s 22 (11),
i.e. a transfer of
registration. The two assertions are inter-related on the basis that
any conflict between the provisions of
the Liquor Act and any other
law, apart from the Constitution, is to be resolved on the basis of
the Liquor Act.
[2]
[17]
The
nature and legal status of an entity incorporated in terms of the
Companies Act is determined by that Act. The definition of
a
“company”, as set out in s1 of the Act, extends to a
converted company i.e. a close corporation converted in terms
of
Schedule 2. Schedule 2 provides in clear and unambiguous language
that the legal entity created by registration in terms of
the
Close
Corporations Act continues
to exist as a legal entity upon its
conversion to a company. The converted company is, upon an ordinary
construction of Item 2
(2) of Schedule 2, the same legal entity as
that which existed in the form of a close corporation prior to its
conversion.
[18]
The
“conversion” of the entity relates to its form. It
addresses the internal relations of participants in the company,
i.e.
shareholders and directors. It also addresses regulatory aspects of
the company and its governance. Schedule 2 specifically
provides for
the external legal effect of conversion.
Section 2
(2) of the
Close
Corporations Act, referred
to above, is consistent with the
provisions of Items 1 (4) and 2 (2) of Schedule 2. Item 1 (4)
requires the cancellation of the
registration of the close
corporation upon its conversion. This gives expression to the
requirement in
s 2
(2) (b) of the
Close Corporations Act. However
,
both
s 2
(2) of the
Close Corporations Act and
Item 2 (2) of Schedule
2 of the Companies Act provides for the continued existence of the
juristic person.
[19]
Section
1 of the Interpretation Act, Act 33 of 1957 (which is rendered
applicable to the definition of “person” in the
Liquor
Act), defines a “person” to include any company
incorporated or registered as such under any law.
[20]
The
ordinary meaning of Items 1 and 2 of Schedule 2 of the Companies Act,
as read with
s 2
(2) of the
Close Corporations Act is
that the
converted company is
the
same juristic person
or entity as existed prior to conversion in the form of a close
corporation. Item 2 (2) of the Schedule, furthermore, makes it
plain
that all of the rights and obligations which vested in that juristic
person in the form of a close corporation continue to
invest in the
juristic person in the form of a company. There is accordingly a
continuity of,
inter-alia
,
rights and obligations.
[21]
Section
22 of the Liquor Act deals with three types of application, i.e.
registration
by a person, company or close corporation as a retailer of liquor
within certain categories;
transfer
of an existing registration; and
removal
of a registration certificate from one premises to another. Section
22 (11) provides that:
The
holder of a registration certificate may at any time make application
to the board for the transfer thereof to another person.
[22]
As
indicated earlier, a “person” is defined in the Liquor
Act to include a trust and a company incorporated or registered
in
terms of any law. Once a certificate of registration is issued to
a
person
such person is entitled to sell liquor, subject to such conditions as
may be imposed and in accordance with the category of registration
approved by the first respondent.
[3]
The rights conferred by a certificate of registration vest for so
long as the holder is in possession of a valid registration for
the
period approved, and subject to the registration being varied,
suspended or cancelled in terms of s 29 of the Act.
[4]
In this instance there is no dispute that immediately prior to
conversion the holder (Skillfull 1059 CC) was in possession of a
valid certificate conferring upon it the right to sell liquor. In
terms of the Companies Act, those vested rights now vest in the
applicant
[23]
Section
22 (11) deals with the transfer of rights from one person to
another
person
.
It is for this reason, no doubt, that the requirements for disclosure
of information; for public notice and objection; and the
related
registration procedures are made applicable to the process of
transfer. As Ms
Rawjee
quite correctly submitted, these procedures serve to meet the objects
and purposes of proper regulation of the industry.
[24]
Section
22 (11) however, cannot, in its ordinary grammatical meaning, apply
to a converted company since there is no other person
to whom rights
are to be transferred. It is difficult to conceive on what basis
rights, which invest in an incorporated juristic
person, can be
“transferred” to that same incorporated juristic person.
[25]
The
procedure provided for conversion of the form of the juristic person,
seeks to ensure that the conversion in form is consistent
with the
requirements for incorporation of a company in the ordinary course.
Thus Item 1 (3) of the Schedule makes s 14 of the
Companies Act
applicable to the conversion. Section 14 deals with the registration
of a company upon acceptance of a Notice of
Incorporation together
with a Memorandum of Incorporation. In the case of a conversion, the
Notice of Conversion is deemed to be
a Notice of Incorporation. The
registration certificate issued in terms of Regulation 18 of the
Companies Regulations serves, in
terms of s 14 (9), as conclusive
proof that the requirements of incorporation have been met.
[26]
The
argument that the s 22 registration procedure is necessary to ensure
that the “new entity” meets the requirements
of the
Liquor Act does not take into consideration that rights have already
been conferred in accordance with the prescribed application
procedure. Furthermore, s 34 of the Liquor Act, places an obligation
upon a registered person to obtain prior approval of the chairperson
of the first respondent for certain changes to the business to which
the registration relates. The section provides that:
(1) A registered
person must not permit any other person to procure a controlling
interest in the business to which the registration
relates, unless
the chairperson of the board has, on application by the registered
person, granted consent that the other person
may procure that
interest in the business.
(2)
The chairperson must not grant consent under subsection (1) where the
person who is the subject of the application, is disqualified
or
incompetent in terms of this Act to be registered.
[27]
The
first respondent’s contention that it is possible that the
shareholding of the company may change in conversion and that,
for
this reason, adherence to the s 22 (11) transfer would serve to
ensure that disqualified persons are not granted registration,
cannot
be upheld. There is no provision in the Liquor Act which
requires a company or close corporation holder of a registration
certificate to disclose shareholding or membership changes during the
currency of a valid registration. The disclosure obligation
applies
at registration and in relation to the acquisition of a controlling
interest in terms of s 34. In any event, the registration
is valid
for a specified period, subject to renewal and payment of annual
fees.
[28]
The
process of conversion of a close corporation to a company involves
the conversion,
inter
alia
,
of a membership interest into shareholding. Item 2 (1) of Schedule 2
provides that:
Every
member of a close corporation converted under this Schedule is
entitled to become a shareholder of the company, resulting
from that
conversion, but the shares to be held in the company by the
shareholders individually need not necessarily be in proportion
to
the member’s interests as stated in the founding statement of
the close corporation concerned.
[29]
The
notice of conversion which must be filed serves as a notice of
incorporation as is required in terms of ss 13 and 14 of the
Companies Act. It deals with the shareholding of the erstwhile
members of the close corporation. All members become shareholders.
[30]
Ms
Bands
,
on behalf of the applicant, submitted that a s 22 (11) transfer is
neither possible nor competent. It is not strictly possible,
since s
22 (11) requires the holder of a registration certificate to apply.
Since the holder, Skillfull 1059 CC, has been de-registered
as a
close corporation pursuant to the conversion, “it” cannot
apply. It is also not competent for a legal entity to
apply to
transfer rights to itself. I have already dealt with the latter
argument. As to the former, Ms
Bands
correctly points out that, on the first respondent’s
construction of the provisions of Companies Act, the “separate
entity” has in fact ceased to exist.
[31]
Ms
Bands
further argued that no purpose would be served by a transfer
application since the first respondent is possessed of all of the
information regarding the applicant and its shareholders as would be
required in the application for transfer, since that information
was
provided at the stage that registration was sought. I agree.
[32]
It
should be mentioned that the applicant relied on the fact that the
first respondent has apparently, on previous occasions, made
such
amendments to registration certificates without requiring a transfer
of rights in terms of s 22 (11). The first respondent
contended that
these were administrative errors. In my view the prior conduct of the
first respondent is not relevant in addressing
the legal question
raised in these proceedings.
[33]
I
turn now to the second leg of the first respondent’s argument,
namely that the Liquor Act does not provide for the amendment
of the
registration certificate in the case of a converted company and that
it would be acting
ultra
vires
were it to issue such certificate.
[34]
It
is so that the Liquor Act is silent in relation to a converted
company. What the applicant requires, in addition to the declaratory
relief, is that the first respondent place a copy of its certificate
of registration issued by the CIPC in terms of Regulation
18 of the
Companies Regulations on file, and to amend its records in accordance
therewith. It requires also that the first respondent
issue an
amended certificate of registration in terms of s 25 (1) (b) of the
Liquor Act. The ‘amendment’ is effectively
in relation to
the name of the holder, since all the information set out in the
certificate of registration would be the same as
that previously
issued.
[35]
The
first respondent submits that its powers are defined by the Liquor
Act and that there is no provision for the issuing of an
amended
certificate of registration in the name of the applicant. The first
respondent’s powers to vary any registration
is confined, so it
was submitted, to variation required consequent upon failure to
comply with a notice of non-compliance.
[5]
The first respondent therefore does not have the power to amend a
certificate of registration by changing the name of the registered
person. The applicant does not however, seek a variation of the
registration. It seeks merely that a certificate be issued reflecting
that the holder of the rights is the applicant i.e. the juristic
person which has been converted from a close corporation to a
company.
[36]
The
first respondent however placed reliance upon s 3 (2) which provides
that:
Subject
to sections 23 (a), 32 (1) and (2), 47 (1), 48 (2), 50 (2) (a) and
51, if any conflict relating to a matter dealt with in
this Act
arises between this Act and the provisions of any other law, save the
Constitution or an Act amending this Act, the provisions
of this Act
must prevail.
[37]
It
was submitted that there is a conflict between the Companies Act,
which makes provision for conversion, and the Liquor Act which
does
not deal with the position of a converted company. A conflict however
arises between legislative provisions when two legislative
instruments make different provisions for the same or a similar
matter. In this instance the Companies Act deals with the conversion
of a close Corporation to a company and provides for the legal status
of the juristic person so converted. The Liquor Act does
not deal
with this matter. The Liquor Act deals with registration, transfer
and removal of registrations. There is accordingly
no conflict
between the two Acts. At best for the first respondent the Liquor Act
is silent as to the procedure to give effect
to the provisions of
Schedule 2 of the Companies Act.
[38]
The
first respondent’s powers are defined by the Liquor Act. Its
authority, to consider applications for registration, transfer
or
removal, is as it is set out in the Act. These are adjudicative
functions performed by the first respondent to give effect to
the
legislation. The first respondent also performs certain regulatory
functions in enforcing the provisions of the Liquor Act.
It is, in
this regard, clothed with authority to vary a registration upon
non-compliance with its directives or to suspend or cancel
a
registration. It is entitled to grant a registration subject to
certain conditions and to determine the period for which a
registration
is valid.
[39]
The
Act does not however, define the first respondent’s authority
in relation to functions which do not involve the exercise
of its
adjudicative functions by which it gives effect to the legislation
but which are incidental to the performance of those
functions. What
the applicant seeks is an amendment of the certificate of
registration to give effect to the conversion to a company
pursuant
to the Companies Act. This does not engage the first respondent’s
adjudicative administrative decision-making authority.
The first
respondent is not required to exercise any of its statutorily
conferred powers by which it decides to grant a registration,
or a
transfer of registration. It has already exercised those powers and,
by its original decision to grant a registration certificate
to
Skillfull 1059 CC, conferred rights to sell liquor upon certain
conditions. What the applicant now seeks is that effect be given
to a
lawful process of conversion pursuant to legislation which governs
such process and which determines the legal effect of such
conversion
process. The first respondent is obliged, in accordance with the
principle of legality, to give effect to the lawfully
executed
conversion. There is no impediment to such conduct, and in effecting
the amendment to its records the first respondent
will not, in my
view, be acting
ultra
vires
its powers.
[40]
The
point may be illustrated by analogy with reference to
s 21
of the
Close Corporations Act. That
section deals with the effect of the
change of name of a close corporation. Subsection (2) provides that:
(2)
Upon the production by a corporation of a certified copy of a
founding statement reflecting a change of name of that corporation
to
any registrar or other officer charged with the maintenance of a
register under any law, and on compliance with all the requirements
pursuant to any such law as to the form of application (if any) and
the payment of any required fee, such registrar or other officer
shall make in his or her register all such alterations as are
necessary, by reason of the change of name in respect of the
corporation.
[41]
This
section clearly authorises a regulatory authority to effect
amendments to its records and to give effect to the name change.
The
fact that the Liquor Act does not make provision for such an
amendment to be made, would not preclude the amendment of a
registration
certificate pursuant to
s 21(2)
of the
Close
Corporations Act. Were
that to be so it would give rise to absurdity.
[42]
In
just the same way the first respondent, as a regulatory authority, is
obliged to give effect to the provisions of Schedule 2
of the
Companies Act. The fact that the Schedule does not in terms direct a
regulatory authority to amend its records, does not
alter the
essential obligation imposed upon a regulatory authority to act in
accordance with the principle of legality.
[43]
Legislative
provisions must be interpreted sensibly and in manner which does not
undermine the purpose of the legislation.
[6]
In this instance, effect must be given to the purpose of both the
Companies Act and the Liquor Act. To hold that the first respondent
is precluded from giving effect to a provision of the Companies Act
because the Liquor Act, enacted prior thereto, does not refer
to the
amendment of the certificate of registration in circumstances such as
the present, would lead to an insensible and un-businesslike
interpretation of the legislation. To hold, on the contrary, that the
first respondent is entitled in the exercise of its administrative
functions which do not engage its adjudicative or regulatory powers,
to amend the certificate of registration by issuing a certificate
in
the name of the converted entity would give effect to the purposes of
both the Companies Act and the Liquor Act.
[44]
It
follows from what is set out above that the applicant is entitled to
the declaratory order and the further order it seeks. There
is no
reason why the costs of the application should not follow the result.
I was informed that the parties were in agreement that
in respect of
the costs reserved by Eksteen J on 29 March 2018 regarding a
postponement of the matter, that there should be no
order as to
costs.
[45]
In
the result the following orders will issue:
1.
It
is declared that the requirements of section 22 (11) of the Eastern
Cape Liquor Act, Act 10 of 2003 do not apply to the amendment
of the
Certificate of Registration issued in terms of the said Act to a
close corporation which is converted to a company, pursuant
to
Schedule 2 of the Companies Act, Act 71 of 2008.
2.
The
first respondent is ordered to place a copy of the applicant’s
Certificate of Registration issued by the Companies and
Intellectual
Properties Commission on 24 February 2015 on file and to amend its
records, within a period of 21 days from the date
of this order, in
respect of the applicant in accordance therewith.
3.
The
first respondent is ordered to issue the applicant with an amended
Certificate of Registration in accordance with section 25
(1) (b) of
the Eastern Cape Liquor Act, Act 10 of 2003, within 21 days from the
date of this Order.
4.
The
first respondent is ordered to pay the costs of the application, save
that in respect of the reserved costs of 29 March 2018,
there shall
be no order as to costs.
_________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Adv.
I. Bands
Instructed
by BLC Attorneys
For
the First Respondent
Adv.
A. Rawjee, assisted by Adv. Gagiano
Instructed
by the State Attorney, Port Elizabeth
[1]
See
the definitions set out in s 1 of the Liquor Act
[2]
See
s 3(2) of the Liquor Act
[3]
Sections
19, 20 and 27 of the Liquor Act
[4]
Section
29 provides that a registration i.e. the rights to sell liquor
conferred by the Board upon a holder of a registration
certificate,
may be ‘varied’ in the event that the holder does not
comply with a notice of non-compliance issued
by the Board in terms
of s 28. It also provides for the suspension or cancellation of the
registration in certain circumstances.
[5]
See
fn 4 above.
[6]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] 2 All SA 262
(SCA)