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[2012] ZASCA 66
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Northern Metropolitan Local Council v Company Unique Finance (36/11) [2012] ZASCA 66; 2012 (5) SA 323 (SCA); [2012] 3 All SA 498 (SCA) (21 May 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
36/11
In the matter between:
Reportable
NORTHERN METROPOLITAN
LOCAL COUNCIL
...........................................
Appellant
and
COMPANY UNIQUE FINANCE
(Pty) Ltd
.............................................
First
Respondent
FIRST NATIONAL BANK OF
SOUTHERN AFRICA
LIMITED
.......................................................
Second
Respondent
JOHANNES JACOBUS DU
PLESSIS
.................................................
Third
Respondent
Neutral citation:
Northern Metropolitan Local Council v Company Unique Finance
(36/11)
[2012] ZASCA 66
(21 May 2012)
Coram:
MPATI P,
CLOETE, SNYDERS and BOSIELO JJA and NDITA AJA
Heard:
21 February
2012
Delivered:
21 May
2012
Summary: Estoppel –
by conduct – whether council estopped from denying authority of
one of its many employees –
authority of one employee to tell
the world that his subordinate had authority to bind council –
employees lowly ranked in
overall structure of council – no
evidence of trappings of positions held – impression gained by
third party on seniority
of employees during visits to council
premises not one created by employees’ appointments – no
liability attaching
to council.
_______________________________________________________________________
ORDER
_____________________________________________________________________
On appeal
from:
South Gauteng High Court, Johannesburg
(Blieden J sitting as court of first instance).
1 The appeal succeeds
with costs.
2 Paragraphs a, b and c
of the order of the court below are set aside and replaced with the
following:
‘
The plaintiffs’
claims against the first defendant are dismissed with costs.’
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
MPATI P (CLOETE,
SNYDERS and BOSIELO JJA, and NDITA AJA CONCURRING):
[1] The
third respondent, Mr Johannes Du Plessis (Du Plessis) was, at all
times relevant to the issues in this matter, employed
by the
appellant as a superintendent in its security services department. On
30 October 1998 he signed an agreement, purportedly
on behalf of the
appellant, in terms of which the appellant would rent from the first
respondent – which formerly traded
as Compufin Finance –
a Sharp photocopying machine at a monthly rental of R12 009.90 over a
period of 60 months.
1
(For convenience I shall refer to the first respondent
as ‘Compufin’.) Two further rental agreements were signed
by
Du Plessis, purportedly on behalf of the appellant, in terms of
which the latter would rent, from Compufin, radio phones and radio
stations, respectively, at a rental of R77 520 per month in respect
of each agreement over a period of 60 months.
2
The equipment was delivered to the appellant’s
security services section, but on 19 March
1999 and in circumstances
which shall become apparent later in this judgment, the appellant’s
Strategic Executive: Corporate
Services, Mr Rudolph Bosman (Bosman),
wrote
a letter to
Compufin advising that the appellant ‘was unaware of [the three
agreements]’;
3
that it had at no stage authorised the relevant
transactions and that they were accordingly null and void. Bosman
also demanded
payment of the total amount of R232 560, which appeared
to him to represent three payments of R77 520 each made by the
appellant
‘via bank debit orders on 15 February 1999, 22
February 1999 and 15 March 1999 respectively . . .’.
[2] Compufin
and the second respondent, First National Bank, to whom Compufin had
ceded all its rights, title and interest in the
third agreement,
subsequently issued summons against the appellant and Du Plessis as
first and second defendants respectively,
claiming payment, from the
appellant, of the sums of R971 703.96 and R6 272 032.80 to Compufin
in respect of the first and second
agreements
4
,
and R6 272 032.80 to the second respondent in respect of the third
agreement as damages for breach of contract. In the alternative
and
in the event that Du Plessis did not have the requisite authority to
sign the agreements on behalf of the appellant, Compufin
claimed from
the appellant and Du Plessis, jointly and severally, payment of the
sum of R6 861 816.29 as delictual damages suffered
by it as a result
of Du Plessis falsely representing that he had such authority. Du
Plessis’s false representation, so it
was alleged in the
particulars of claim, was intended to, and did in fact induce
Compufin ‘to pay the price of the equipment
to the supplier
thereof so as to supply the equipment to the [appellant’s]
employees and officials’.
[3] In its plea the
appellant denied liability and specifically denied that Du Plessis
was authorised by it to sign the rental agreements.
To this the
respondents replicated and pleaded, in the alternative, that the
appellant had represented that Du Plessis had authority
and that it
was therefore estopped from denying his authority. On the other hand,
Du Plessis denied, in his
plea, that he did not have the necessary authority to conclude
the first and second
agreements and pleaded that he did have the authority to do so. It
appears from the judgment
of the court a quo (Blieden J), however, that after all the evidence
was led and after each of the parties
had closed their cases, it was
conceded on behalf of the respondents that Du Plessis lacked actual
authority to conclude the rental
agreements. At the stage of argument
before Blieden J, therefore, and indeed in this court, the only issue
to be decided was whether
the appellant had created the impression
that Du Plessis was authorised to conclude the agreements on its
behalf, thus clothing
him with ostensible authority.
[4] Having found that
Compufin’s witnesses had ‘made it clear that as far as
they were concerned they were not relying
on any representation made
by Du Plessis, but on a proper and acceptable resolution confirming
Du Plessis’s authority to
sign the three contracts on behalf of
the [appellant]’, Blieden J concluded that Compufin ‘cannot
succeed in a [delictual]
claim for damages against Du Plessis. . . ’.
He accordingly dismissed Compufin’s claim against Du Plessis
with costs,
but granted the contractual claims against the appellant
(albeit in slightly lesser amounts) with interest and costs on the
scale
as between attorney and client (as provided for in the
contracts), including costs of two counsel. It is the order made in
favour
of the respondents against the appellant that is the subject
of this appeal, which is before us with leave of the court below.
[5] It would be
convenient, at this stage, to set out some facts, which appear to be
common cause or undisputed. Corporate services,
of which Bosman was
the Strategic Executive, is one of seven clusters within the
appellant. Within corporate services there are
seven sub-clusters,
one of which is security services. Each of the sub-clusters is headed
by an Executive Officer. Mr Billy Mosiane
(Mosiane) was the security
sub-cluster’s Executive Officer. At a level below him were the
positions of two managers, one
for operations and the other for
strategic services. Yet a level below the managers was the position
of senior superintendent,
which was occupied by a Mr Wimpie van Wyk
(Van Wyk). Du Plessis’s position of superintendent was a level
below Van Wyk and
the latter was his immediate superior. A
superintendent was one level above the lowest rank in the
security sub-cluster,
namely that of a security guard and law enforcement officer. Mosiane,
Van Wyk and Du Plessis were, according
to Bosman, housed in a
building known as the Metro Building, separate and diagonally across
the street from the appellant’s
main offices.
[6] Du Plessis testified
that during 1998 (he could not remember the date) he met two ladies,
Ms Ilse Krause (Krause) and Ms Karen
Willemse (Willemse), who sought
from him directions to the office of the Strategic Executive:
Finance. After he had directed them
and since they had introduced
themselves to him as ‘salespersons of office equipment’
he requested from them a business
card. He was interested in
procuring a photocopy machine (photocopier) for the security
department, because they had had to make
copies of documents
containing private and confidential information at other departments.
This, according to him, posed a security
risk. The following day he
telephoned Krause and requested an interview with her. She obliged
and after the interview she introduced
him to Mr Jeff Rahme (Rahme)
of Jeff Rahme Consultancy. It is not in dispute that Rahme was an
approved broker who discounted various
agreements to Compufin and
that Krause and Willimse were the owners of a company known as
Africon. (I shall henceforth refer to
them collectively as the
Africon owners.) There was an understanding between Compufin, Rahme
and the Africon owners that when Africon
had a sale agreement for
which they required financing, the sale would be processed through
Jeff Rahme Consultancy for discounting
with Compufin. This was
because Africon was not an approved broker with Compufin, although
the Africon owners were, according to
Mr Deon Blighnaut (Blighnaut),
the advances manager at Compufin at the relevant time, well-known to
Mr Anthony McLintock (McLintock)
who was Compufin’s managing
director.
[7] Du Plessis testified
further that after he had been shown a brochure, by Rahme, of Sharp
photocopiers with all the necessary
accessories he introduced the
Africon owners to his superiors, Van Wyk and Mosiane. He said that
the Africon owners ‘requested
that
we enter
into an agreement with African Bank that would enable us to get the
mentioned photocopier’. Van Wyk instructed him,
so he
testified, to purchase the photocopier after he had told the Africon
owners that he (Van Wyk) and Mosiane would not be available
as they
were to attend a security conference for a certain period.
5
Van Wyk ‘signed a resolution which gave [him]
signing powers with [the Africon owners]’. A few days after he
had signed
the agreement for the rental, the photocopier was
delivered by Rahme in the presence of both Van Wyk and Mosiane. The
photocopier
was installed in his office so as to avoid it being
abused. This was on the instructions of Van Wyk.
[8] During the
installation of the photocopier and having seen a radio supplier’s
business card on Du Plessis’s desk,
Rahme asked him if he was
looking for a radio system. His response was that the security
department wanted to upgrade their current
security system. Rahme
responded that he was selling a brand new system which comprised
radio communication, cellular phone accessibility
and a tracking
unit. By then Du Plessis knew, having been told this by Mosiane, that
the life of one of the appellant’s councillors
had been
threatened and that the councillor concerned had requested protection
from the security department. He saw this as an
opportunity and later
contacted Rahme and requested him ‘to get the necessary
documentation and authorisation in place in
order for him to supply
me with the radio phones’. After he had signed the necessary
documents the radio phones were delivered
to the appellant’s
premises. He ordered a Mr Frikkie Strauss, who worked in the stores,
to issue the radios ‘to all
the security personnel’. A
while later Mosiane telephoned him and summoned him to the office of
one of the councillors, Councillor
Nathan Jacobs (Councillor Jacobs),
with a radio phone. There Mosiane ordered him to issue the radio
phone to Councillor Jacobs.
[9] The three rental
agreements signed by Du Plessis contained a debit order authorisation
which he also signed. The signed debit
order authorised monthly
payments to be made from the appellant’s bank account with
Trust Bank in respect of each of the
three agreements to
Compufin or its cessionary. It is common cause that a total amount of
R60 049.42, including
VAT, was paid in respect of the first agreement and R232 560 in
respect of the second agreement. However,
the amount of R232 560,
including VAT was subsequently reversed and credited to the
appellant’s bank account.
[10] Du Plessis’s
purchasing spree came to an end in about February 1999 when he sought
to make further purchases totalling
R10.5 million. It appears from
the evidence of Mr Alexander Maclean (Maclean), head of the vendor
finance division of Wesbank at
the time of these transactions, that
the radio phones and radio stations delivered to the appellant’s
security clusters as
mentioned above did not comprise the complete
package. Wesbank were approached by Compufin to finance the balance
of the package,
ie the entire security system to the value of R10.5
million. In a facsimile letter dated 15 February 1999 addressed to
the appellant
for the attention of Mr C Lehmkuhl (Lehmkuhl), who was
a manager in the finance cluster, Maclean wrote:
‘…
The
Rental Agreement [for 30 base stations and 300 radios] has been
signed by Mr. J Du Plessis under authority of a resolution signed
by
Mr. W van Wyk (Head Manager: Services).
In
order that we may satisfy ourselves that these gentlemen are
authorised to transact on behalf of the Council we understand that
the only department that would be in a position to authorise
expenditure of this nature is the finance department.
This
information has been given to us by Mr. Basie Lombard of the Greater
Johannesburg Metro Council … who has suggested
that we need to
get the following information directly from the head of the Finance
Department at you Randburg offices:
*
Written authority whereby the Council has agreed to the renting of
such equipment. I
understand
that this would have been a part of the budget for the security
services department. * Confirmation from the Finance
Department that
Mr. van Wyk has the necessary authority
to
authorise Mr. Du Plessis to sign rental agreements.
.
. .’
After certain
correspondence had passed between Maclean and Rahme, who desperately
tried to convince the former that all was in
order, a meeting was
held on 18 March 1999 at
the appellant’s
premises, where the Africon owners , Rahme, Bosman, two internal
auditors of the appellant and representatives
of Wesbank (including
Maclean) and Compufin were present. It was at that meeting that
Bosman advised all present that neither Van
Wyk nor Du Plessis had
been authorised to sign the agreements on behalf of the appellant.
Following the meeting Bosman wrote the
letter of 19 March 1999
referred to in para 1 above, in which the addressees were advised
that the three agreements were null and
void.
[11] At the meeting just
referred to above Blighnaut and Mr Christo Olivier, an employee in
the internal audit section of the appellant,
were appointed to
investigate and establish, jointly, the true position relating to the
transactions. Those present at the meeting
were also informed that Du
Plessis had been suspended because he had had no authority to bind
the appellant and to conclude the
agreements on its behalf. A
disciplinary enquiry was subsequently held, chaired by Bosman, at
which Du Plessis was charged with
misconduct, it being alleged that
he, inter alia, had conducted himself in a disgraceful, unbecoming or
dishonest manner prejudicial
to the good and proper working of the
appellant’s service. He was found guilty and the disciplinary
committee recommended
his dismissal.
[12] It is common cause
that the resolution which purportedly authorised Du Plessis to
conclude the rental
agreements on behalf of the appellant was signed by Van Wyk on an
official letterhead of the appellant. It was
signed, on the face of
it, on 26 November 1998. The resolution purports to be an extract
from a meeting of the appellant held at
Randburg on 26 November 1998.
Its relevant portion reads:
‘
RESOLVED:
“That the Hirer enters into a Rental Agreement with Compufin
Finance (Pty) Ltd for the renting of the device as
specified in the
Transaction Schedule and any further Transaction Schedule(s) upon
such terms and conditions as are usually applicable
to Rental
Agreements and as may be agreed upon.”
That
Mr. J du Plessis
in his capacity as
Manager
of the
Hirer be and is hereby
authorised
to sign, endorse and execute all documents for and on behalf of the
Hirer to give effect to this resolution.’
Beneath the resolution
and to the right of the page appears Van Wyk’s signature, below
which are his full names: Willem van
Wyk, and the capacity in which
he appended his signature, viz ‘HEAD OF SECURITY’. To the
left of Van Wyk’s signature
is the date 26 November 1998,
written in manuscript and beneath it is an imprint of the appellant’s
official date stamp.
[13] During his
cross-examination Du Plessis testified that he never saw Van Wyk sign
the resolution, nor did he see him give it
(the document containing
the resolution) to the Africon owners, although he knew that ‘[t]hey
needed a document to say that
I had signing power . . .’. He
knew that at one stage they went to see Van Wyk without him. (He had
taken them to him on
a previous occasion.) But since he was giving
evidence eleven years after the event he said he was unable to
remember the date
on which the Africon owners went to see Van Wyk –
it could have been 26 November 1998. The Africon owners subsequently
brought
to him the documents relating to the first agreement, which
he signed.
[14] The process followed
by Compufin upon receiving a proposal for financing from a broker was
set out by McLintock, who testified
that he was involved in the
second and third agreements, as follows:
‘
What
would then happen, this would then go to our credit department who
would then forward that information to the various financial
institutions who[m] [we] had facilities with. After . . . examining
who it was for, they would then come back to us and request
certain
information before they would be able to approve the deal. They would
talk about a resolution, probably talk balance sheet,
insurance
information, a copy of a cancelled cheque, a debit order, various
aspects that the banks
would
ask for. So our credit control committee would then evaluate the
information. This would then
be
sent to the banks, who would then in turn evaluate the information
they requested. Thereupon, if
they
are happy with all the information, they would then approve the deal
and send us a deal approved.’
Compufin would then
consult with the supplier, who would receive payment after the
equipment had been delivered. When asked what
authority was required
as part of the standard procedure McLintock said:
‘
Well,
depending upon the clients, a resolution would be required, copies of
minutes of meetings would be required, in other words
where the
topics of discussion were actually discussed in the meetings. But a
resolution confirming that the person signing the
agreement had the
capacity to contract. This would have to be on an original document.’
[15] The extent of
McLintock’s involvement in the second and third agreements was
to attend a meeting at the appellant’s
premises. He testified
that at the meeting the appellant was represented by four people, to
whom he referred as ‘delegates
from the council’. These
were Du Plessis, Van Wyk and ‘two African gentlemen’
whose names he could not remember.
He later said he thought one of
them was Mosiane. The objective of the meeting ‘was to discuss
exactly what they were doing
regarding the two-way radios’.
According to him the appellant’s employees ‘came up with
a very good cost justification
and the reasons why [the appellant]
required these radios, we then obviously put a process into action to
finance the specific
deals and discount the deals with various
financial institutions’.
[16] Mr Eric Lundberg
(Lundberg), who had been employed at Compufin as advances manager,
but later moved to head the credit committee
at African Bank, also
testified to a meeting he had with either Van Wyk or Du Plessis at
their office at the appellant’s
premises. He had gone to that
meeting with McLintock ‘to go and obtain the financial
information that we needed and also
to form my own personal thing to
verify that there was in fact a deal in the offing’. He said
his involvement ‘was
purely to obtain credit information so
that a submission could be made’. At the meeting he was handed
a balance sheet reflecting
the financial details of the appellant’s
security department.
[17] Blighnaut signed the
third agreement on behalf of Compufin. He testified, however,
that he would have been
involved in organising the financing of the other two agreements
approved. The approval for each was given
by African Bank and
Wesbank, a division of the second respondent. He said he had
satisfied himself that the requirements in respect
of all three
agreements were met for further transmission to the banks. Blighnaut
said he was the person at Compufin who had to
be satisfied that the
requirements were met, including a proper resolution. When asked
during his evidence-in-chief whether he
would have approved the
second and third agreements without a separate resolution he answered
in the affirmative ‘because
we have got a resolution on the
first agreement that was done in November with Mr Du Plessis’s
signature and confirming that
he can do a specific and any future
transactions for the security division’. He thus relied on the
original document signed
by Van Wyk and dated 26 November 1998. It
will be recalled that the second and third agreements were concluded
in January 1999.
[18] Importantly,
Blighnaut testified that in respect of all three transactions he
received all documentation from Willemse and
Rahme and the resolution
from Rahme. He was never given any documents by any of the
appellant’s officials. He also agreed
that the persons who
signed the documents as witnesses for the appellant’s signatory
were the Africon owners. He met Du Plessis
when the latter called at
Compufin to sign the debit orders for the second and third
transactions.
[19] Ms Susan Hall
(Hall), who was at the relevant time an assistant advances manager
with Compufin, signed the second agreement
on behalf of Compufin. Her
duties were to ensure that everything that was required for approval
of a deal by the discounting bank
or financial institution was in
order. Hall testified that she would not have signed the agreement if
she had not been satisfied
with the required resolution authorising
Du Plessis as signatory for the appellant. She said the resolution
was on an original
letterhead and
there was no reason for
her ‘to question that it was not legal’. It contained the
standard wording used in the industry
and the banking environment and
at Compufin. There was therefore no reason for her to be suspicious.
[20] Another witness for
the respondents, Ms Alet McTaggart, did not take the matter any
further. She was an administrator with
Compufin and her function was
to check if all the documentation was in order, including a
resolution authorising a signatory to
a contract. Once she had done
that the documentation would be passed on to Compufin’s
signatory. She also testified that
she appended her signature on the
first agreement as a witness to the signature of a Mr Pete Hopwood
(Hopwood), who signed the
agreement on behalf of Compufin. Hopwood,
however, was not called as a witness.
[21] Besides Bosman, six
more witnesses testified for the appellant, namely Ms Maria Renney
(Renney) who was the appellant’s
committee officer, Mr Alwyn
Nortjé (Nortjé), a legal advisor, Mr Patrick Lephunya
(Lephunya), the acting Chief Executive
Officer, Ms Rashida Albertus,
Mosiane and Councillor Jacobs. (I shall refer to the evidence of
these other witnesses only when
it is necessary to do so.) As was
observed by the court a quo, Bosman was the most important witness.
He testified that the appellant
was governed in terms of legislative
enactments which determined how the appellant’s affairs had to
be conducted. The full
Council, which comprised elected Councillors,
was the appellant’s highest decision making body. Immediately
below the Council
was the Executive Committee, which was also a
decision making body in the absence of a Council meeting. The
Executive Committee
appointed a number of portfolio committees. The
administration was headed by the acting Chief Executive Officer,
Lephunya, and
below him were the clusters and sub-clusters referred
to above.
[22] According to Bosman
none of the appellant’s officials had the power, in their
individual capacities, to bind it without
specific authorisation. The
full Council, at its meetings, was the only body that could authorise
expenditure. In cases of lesser
expenditure the Executive Committee,
a body appointed by the full Council, could give the
authorisation. Where
individual officials sought to bind the appellant a member of the
public could telephone the legal department
for verification of the
official’s authority to act on behalf of the appellant.
[23] In the respondents’
heads of argument the question was posed whether Van Wyk
had actual authority, or
ostensible authority, to indicate to outsiders the contents of
resolutions of the appellant. Before us
counsel for the respondents
submitted that Van Wyk had actual authority to pass information
regarding persons with authority to
sign documents on behalf of, and
to bind, the appellant.
[24] Actual authority may
be express or implied. In
Hely-Hutchinson
v Brayhead Ltd & another
6
(referred to with approval in
NBS
Bank Ltd v Cape Produce Co (Pty) Ltd & other)
7
Lord Denning MR expressed himself
thus:
‘
[Actual
authority] is
express
when
it is given by express words, such as when a board of directors pass
a resolution which authorises two of their number to sign
cheques. It
is
implied
when
it is inferred from the conduct of the parties and the circumstances
of the case, such as when the board of directors appoint
one of their
number to be managing director. They thereby impliedly authorise him
to do all such things as fall within the usual
scope of that office.
Actual authority, express or implied, is binding as between the
company and the agent, and also as between
the company and others,
whether they are within the company or outside it.’
In support of his
contention that Van Wyk had actual authority counsel for the
respondents referred to the evidence of Nortjé,
who was
employed by the appellant as a legal advisor. Nortjé agreed
during cross-examination that there was no sign on Du
Plessis’s
office door, or on Mosiane’s, to alert a member of the public
to Du Plessis’s lack of authority to
bind the appellant. He
testified, however, that an official who would be approached by a
member of the public ‘certainly
has a duty of care to inform
the visitor . . . that he does not have that authority’. When
asked whether the appellant relied
on its own officials to warn
the public on the
limitation of their authority Nortjé responded:
‘
Yes
but I must say [the] public most certainly also know that the council
operates under delegation of powers, I mean everybody
knows that.’
He said that an ordinary
businessman who wanted to conclude an ordinary photocopier deal
‘would rely heavily on that official
that he is dealing with
and that official has a duty of care to explain exactly the inner
workings of the council and not sign
agreements well knowing that he
does not have authority’.
[25] Counsel also
referred to the testimony of Renney who also agreed that a member of
the public dealing with a particular cluster
or sub-cluster ‘could
expect to ask a senior person in the cluster as regards whether there
had been a resolution or not
and [that] he [the member of the public]
would expect that [senior] person to answer’ and that the
member of the public would
trust that answer. Reference was also made
to the evidence of Bosman, who said the channel of communication
about what had been
decided higher up in the appellant’s
structures would be vested in senior officials of the security
sub-cluster who would
be expected to tell members of the public as to
whether or not they had authority.
[26] What does emerge
from the evidence referred to is, in my view, that an official of the
appellant had a duty, when the issue
of authority came up, to tell
the truth to members of the public as to who had authority to bind
the appellant. Non constat, however,
that a failure to tell the truth
or the deliberate forgery of a document containing an untruth would
render the appellant liable
were a member of the public to contract
on the basis of the truth of what was conveyed by the official. As to
Van Wyk, there was
no evidence to the effect that the signing of
documents containing resolutions and extracts from the appellant’s
Council
meetings fell within the scope of the position to which he
had been appointed, viz senior superintendent, nor of the position of
acting manager, which Du Plessis suggested he held at the relevant
time. It follows that it was never established as a
fact that Van Wyk had
actual authority to tell the world, by signing the document
concerned, that Du Plessis had authority to bind
the appellant.
[27] As I have alluded to
above, the only issue the court a quo had to determine, which
is also the issue in this
appeal, was whether the respondents proved their case against the
appellant based on the ostensible authority
of Du Plessis and Van
Wyk. In
Hely-Hutchinson
Lord Denning MR said this on the
subject:
‘
Ostensible
or apparent authority is the authority of an agent as it
appears
to
others. It often coincides with actual authority. Thus, when the
board appoint one of their number to be managing director, they
invest him not only with implied authority, but also with ostensible
authority to do all such things as fall within the usual scope
of
that office. Other people who see him acting as managing director are
entitled to assume that he has the usual authority of
a managing
director. But sometimes ostensible authority exceeds actual
authority. For instance, when the board appoint the managing
director, they may expressly limit his authority by saying he is not
to order goods worth more than £500 without the sanction
of the
board. In that case his
actual
authority
is subject to the £500 limitation, but his
ostensible
authority
includes all the usual authority of a managing director. The company
is bound by his ostensible authority in his dealings
with those who
do not know of the limitation.’
Thus, where a principal
(representor) has created an impression in another’s mind –
though such impression might be
wrong – that his or her agent
(employee) has the requisite authority to transact on his or her
behalf he or she will be held
liable under that transaction.
8
[28] In order to hold the
appellant liable on the basis of ostensible authority the respondents
had to prove the following:
(a) A representation by
words or conduct.
(b) Made by the appellant
and not merely by Du Plessis and/or Van Wyk that they had authority
to act as they did.
(c) A representation in a
form such that the appellant should reasonably have expected that
outsiders would act on the strength
of it.
(d) Reliance by the
respondents on the representation.
(e) The reasonableness of
such reliance.
(f) Consequent prejudice
to the respondents.
9
[29] With reference to
the first two requirements Nienaber JA said the following in
Glofinco
v Absa Bank Ltd t/a United Bank:
10
‘
A
representation, it was emphasised in both the NBS cases
supra,
must
be rested in the words or conduct of the principal himself and not
only merely in that of his agent (
NBS
Ltd v Cape Produce Co (Pty) Ltd
(
supra
at
411H-I)). Assurances by an agent as to the existence or extent of his
authority are therefore of no consequence when it comes
to the
representation of the principal inducing a third party to act to his
detriment.’
11
It is common cause that
the document containing the resolution was fraudulent: no such
resolution was passed by the appellant’s
Council on 26 November
1998, nor on any other day. Secondly, the alleged capacity in which
Van Wyk signed the document was false;
he never held the position of
Head of Security. But these representations by Van Wyk, that is that
the appellant’s Council
had passed the resolution; that he held
the position of Head of Security and that he had authority to tell
the world as to who
had authority to sign contracts on behalf of the
appellant, are not the issue. Neither is Du Plessis’s
representation that
he had signing powers. The issue is whether the
appellant made any representation, by word or conduct, which induced
the respondents
to act to their detriment by concluding the
agreements with Du Plessis. I proceed to deal with that issue.
[30] There is no evidence
that any official in the security sub-cluster of the appellant had
authority to bind the
appellant to any extent, other than, possibly, making small purchases
for daily necessities. Indeed, the uncontested
evidence of Bosman on
this aspect is to the contrary. The question whether the transactions
on which the respondents rely can be
said to fall within the
parameters of ordinary security sub-cluster activities or procurement
transactions
12
does not arise. As was said in
Glofinco
,
no representation is made if the
representee is aware that
the transaction he is engaging in is not of the kind a particular
official will ordinarily transact with
an outsider.
13
When invited to clarify as to what the
alleged representation relied upon was, counsel for the respondents
listed four factors,
namely (a) the resolution; (b) two face-to-face
meetings at the appellant’s offices which certain
representatives of one
or both respondents had with what counsel
referred to as ‘very senior officials’ of the appellant
who were clothed
with authority; (c) that Lephunya, the appellant’s
acting Chief Executive Officer, had been party to negotiations and
thus,
being aware of the negotiations, there was representation by
silence; and (d) a number of factors mentioned by Blieden J in
paragraph
81 of his judgment, with which counsel agreed.
[31] All the respondents’
witnesses who handled the documentation relating to the three
transactions were clear in their testimony
that they were moved to
perform whatever function they had to perform regarding the
transactions once they had satisfied themselves
that a proper
resolution was in place authorising the signatory to bind the
appellant. Although it is not clear from the evidence
who signed the
first agreement on behalf of Compufin, Blighnaut said he would have
dealt with it and that he would have been satisfied
with the
resolution. He was the person who had to be satisfied that all the
requirements were met, including a proper resolution.
He signed the
third agreement after
he had satisfied himself
that the necessary requirements were met. Hall, who signed the second
agreement on behalf of Compufin,
said she would not have signed the
agreement if she had not been satisfied with the resolution
authorising Du Plessis as the appellant’s
signatory. Clearly,
the meetings that were attended by Lundberg and McLintock at the
appellant’s premises played no part
in their (Blighnaut and
Hall’s) decision to sign and
conclude the agreements
between Compufin and the appellant. They are the representatives of
Compufin to whom the representation
would have been made. Counsel for
the respondents submitted that the representation was made to
Blighnaut, Hall and Hopwood.
[32] As to the meetings
that took place at the appellant’s premises McLintock merely
wished to satisfy himself not with Du
Plessis’s or Van Wyk’s
authority but with a cost justification for the radios and the
reasons why they were required.
Similarly, Lundberg wanted to satisfy
himself that the appellant (or security sub-cluster) would be able to
pay for the equipment
and not to ascertain who had authority to sign
documents on behalf of the appellant. Counsel contended that these
meetings were
with ‘very senior officials’ in the
security sub-cluster. Apart from the fact that Du Plessis was only
one level above
the lowest rank and Van Wyk one level above him in
the security sub-cluster, positions that can hardly be categorised as
‘very
senior,’
14
there is no evidence that anything
that came out of the meetings in any way influenced those who signed
the agreements on behalf
of Compufin. The impression that Lundberg
and/or McLintock gained about the seniority of Du Plessis and Van Wyk
and any other employee
of the appellant who might have been present
at the meetings cannot be placed at the door of appellant, who had
employed them at
almost the lowest ranks in its administration, even
in its security sub-cluster.
[33] Lephunya’s
evidence took the matter no further. The sum total of his involvement
was his becoming aware of the security
sub-cluster’s desire to
procure radio phones when a report on the matter was placed on the
agenda of the Executive Committee
for approval by it. The report was
withdrawn from the agenda by Bosman and Lephunya had nothing further
to do with the matter.
There is no evidence of his involvement in any
representation. There is no evidence that he was aware that Van Wyk
and Du Plessis
proceeded to transact for the radio phones despite the
Executive Committee report having
been withdrawn from the
agenda.
[34] In its judgment the
court a quo listed twenty-two factors on which counsel for the
respondents relied in his submission to
it that the appellant had
created a façade of regularity. Some of these factors I have
already dealt with, eg the so-called
seniority of
Van Wyk and Du Plessis;
the meetings at the security sub-cluster offices at which Lundberg
was given financial statements (obviously
to prove that the appellant
would be able to afford the procurement) and Lephunya’s
involvement in the saga. The last two
factors relate to what occurred
after the radio phones had been delivered. They were distributed
amongst certain officials and
Councillors. Dealing with this aspect
the court a quo said:
‘
As
submitted by Plaintiff’s counsel the evidence of what occurred
after the conclusion of Agreements A, B and C which, whilst
not
constituting direct evidence of events that can be relied upon to
ground estoppel, since they occurred after the conclusion
of the
agreements, are nonetheless valuable as a source of inferential
reasoning as regards the apparent approval prevailing before
the
conclusion of [the agreements] . . .’
The court then concluded
that had the transactions been without the approval of a large number
of the appellant’s employees,
and had Du Plessis acted alone as
the appellant suggested, ‘it is inconceivable that it would
have taken approximately [two]
months from the delivery of such a
large number of radiophones, for the transaction to be rejected’.
[35] I am not sure to
what approval the learned judge a quo refers. It is true that the
document containing proposals to the Executive
Committee that a radio
phone system be hired and on which Lephunya’s name appears,
tend to indicate that someone –
possibly Lephunya and others –
was in agreement that radio phones should be acquired. But I fail to
see how that apparent
approval could, even after the document was
withdrawn by Bosman, either by itself or considered with other
factors, be said to
have created a façade of regularity which
gave the impression to Blighnaut and Hall that Van Wyk had authority
to tell outsiders
that Du Plessis had authority to bind the
appellant. There is no evidence that Lephunya had any knowledge of
Van Wyk and Du Plessis’s
dealings with the Africon owners, or
any of Compufin’s or the second respondent’s officials.
In my view, the court
a quo erred in this regard.
[36] In introducing these
factors I have just dealt with and others, the court a quo
referred to the following
extract from the decision of this court in
South
African Broadcasting Corporation v Coop & others
(
SABC
):
15
‘
As
in the
NBS
Bank
case (
supra
)
the plaintiff’s case was not limited to the appointment of the
various relevant officers who acted on the SABC’s behalf.
It
included their senior status, the trappings of their appointment, the
manner in which they went about their dealings with the
plaintiffs,
the use of official documents and processes, the apparent approval of
subordinate and related organisations, such as
the pension fund and
medical scheme, the length of time during which the Ludick option was
applied, the Board’s own financial
accounts and the conduct of
CEOs who were Board members.
As
in the
NBS Bank
case, the SABC created a façade of
regularity and approval and it is in the totality of the appearances
that the representations
relied on are to be found.’
In both
NBS Bank
and
SABC
the court had to deal with senior officials and the usual
authority that attached to their positions: in the former, a manager
of a branch of NBS Bank and, in the latter case, with successive
Chief Executive Officers and Group Heads of Human Resources.
[37] In
SABC
the
court below had ordered the South African Broadcasting Corporation
(SABC) to reinstate and continue to pay a 60% subsidy of
the
respondents’ monthly medical scheme contributions and also to
reinstate concessionary television licences. The respondents
were
formerly employed by the SABC and had retired with the benefits on
the strength of written assurances to the first person
to retire, Mr
Ludick (Ludick), by the SABC Group Head of Human Resources (HR), that
he could retire or resign with all the benefits.
Subsequently the
pension fund advisor in the HR office confirmed the benefits relating
to the pension fund, ie that Ludick could
withdraw the full value of
his pension. The Group Chief Executive also confirmed to Ludick in
writing that upon his resignation
he could
retain his membership of
the medical and group insurance schemes. After Ludick had left the
SABC’s employ many other employees
left on the same conditions.
When it felt the pinch on its finances the SABC sought to renege on
the undertakings and disputed
the authority of its own Chief
Executive Officers and HR. It is in this context that this court
observed that the respondents’
cases were not limited to the
appointment of the various
relevant officers but
‘included their senior status, the trappings of their
appointment’, etcetera.
[38] In
NBS Bank
the relevant senior official was a branch manager of NBS Bank, which,
the court said, ‘held out its branch managers as its
front to
the world and its local spokesmen’. In that case the manager
had devised a scheme with the help of an attorney in
terms of which
he would take deposits from clients for which he issued typed letters
in return. The deposits would not be entered
on the computer as the
bank’s rules required, and the money would then be diverted to
the account of a firm of attorneys
from where advances were made to
developers. Four plaintiffs instituted action against NBS Bank for
payment of a combined sum of
R31.5 million with agreed interest, on
the basis that the branch manager had authority, either actual or
ostensible, to bind NBS
Bank. NBS Bank was ordered by the trial court
to pay the monies to the plaintiffs. Certain ancillary orders were
also made. NBS
Bank had denied liability on the ground, first that
the branch manager was acting in his own interest in fraud of the
bank and,
secondly, that there were internal restrictions on the
actual authority of the branch manager.
[39] In this regard
Schutz JA said on appeal:
‘
What
emerges from the evidence is not a nude appointment [of the branch
manager], but an appointment with all its trappings, set
in a
context. The context was a bank, whose business was the taking of
deposits for a period at interest, and the lending of money
on
security at a higher rate of interest. It created branches to carry
on this business and it appointed managers to manage them.
[The
branch manager] was appointed the local head of this business at
Kempton Park. He commanded the staff, including his secretary,
who
typed the letters and then deleted them from her computer on his
instructions, keeping her qualms to herself, whether out of
fear, or
loyalty, or both.
The
letterhead on which the letters were typed was provided by the NBS.
The facility was created, and it functioned, for the NBS
to take Cape
Produce’s cheques into its bank account, and for its cheques to
be issued in repayment. The state of affairs
continued for some 18
months with numerous repayments, without the NBS’s own system
of control detecting the abuse.’
Clearly, then, what this
court has considered to be a façade of regularity where
ostensible
authority is in issue is
the appointment of the person who would have purported to act on
behalf of an entity sought to be held
liable for such act, the
position to which the appointment was made ‘with all its
trappings, set in a context’.
[40] In the present
matter Van Wyk and Du Plessis were lowly ranked officials in an
elaborate administrative structure where authority
below the full
Council was exercised in terms of delegation. It is true that Van Wyk
and Du Plessis were given offices, but these
were not even in the
main building – they were in a smaller side-building. There is
no evidence that they were provided with
secretaries, nor with
letterheads or stamps. It is not known where the letterhead on which
the so-called resolution was contained
came from, so also the stamp
whose imprint appears on it. But the fact that the two officials were
given offices and might even
have had letterheads and stamps does not
mean they were clothed with authority to bind the appellant. What
matters is their seniority
in the overall structure of the appellant
and what ordinarily goes with the senior positions they would have
held.
[41] One of the factors
mentioned by the court a quo as contributing to the creation of a
façade of regularity is that the
appellant provided its
employees with original letterheads, which allowed Van Wyk to use an
original letterhead when certifying
the existence of a non-existent
resolution. The court also observed that the appellant provided its
employees with official stamps
and allowed these to be used for its
official documents. That may be so, but surely were an institution
like the appellant to provide
one of its employees at its receiving
department, where letters and parcels are received, with an official
stamp so as to indicate
the date on which correspondence was
received, it could not be held liable,
without more, if another
employee were to borrow or steal the stamp for nefarious purposes.
Similarly, I do not believe that the
law would require a manager in a
bank to keep letterheads under lock and key and to take out one for
his secretary every time he
or she wants the secretary to type a
letter, so as to avoid unforeseen fraudulent acts by the secretary.
And where a secretary
uses letterheads in his or her possession to
commit fraud and purport to bind the employer it does not follow that
the manager
or the institution should be held liable.
[42] Another factor
mentioned by counsel as contributing to the creation of a façade
of regularity is that Mosiane drew up
Du Plessis’s job
description and allowed Van Wyk to sign it on his behalf. The job
description, so counsel argued, was drawn
up prior to the conclusion
of the three agreements and listed, as part of Du Plessis’s
functions, ‘Contracts and Tenders’.
I am not persuaded
that the ‘job description’ document had anything to do
with the conclusion of the agreements. There
is no evidence that it
formed part of the documents that were before Compufin’s
officials when the proposals to conclude
the agreements were
considered. The document only came up when McLean queried the
authority of Van Wyk to certify that Du Plessis
had signing powers to
bind the appellant. McLean testified that it was sent by the Africon
owners to Blighnaut on 18 March 1999
in preparation for the meeting
that was scheduled for that day at the appellant’s premises and
at which Bosman informed everyone
that neither Van Wyk, nor Du
Plessis, had authority to sign the so-called resolution and the
agreements, respectively.
[43] Yet another factor
referred to by counsel for the respondents is that subsequent to the
conclusion of the first agreement and
prior to the conclusion of the
second and third agreements a payment was made by the appellant via a
debit order signed by Du Plessis,
which indicated that even the
appellant’s bankers accepted Du Plessis’s signing powers.
Counsel accordingly submitted
that although the bank account was
checked regularly by the appellant’s Finance Department at
least on a monthly basis the
debit was not picked up, ’giving a
further appearance of regularity’. Had the debit been picked up
timeously it
could have prevented the
conclusion of the second and third agreements, so the argument
continued. To my mind that does not assist
the respondents. It is
true that the appellant’s Finance Department did not pick up
the debit payment timeously, but that
fact had no influence
whatsoever on any of the officials of Compufin, namely Hall and
Blighnaut, who signed the second and third
agreements respectively.
They made no mention at all in their testimony that the debit payment
was one of the factors they considered
when deciding to sign the
agreements on behalf of Compufin.
[44] But most
importantly, what is lacking in this matter is evidence of the
‘trappings’ of the positions held by Van
Wyk and Du
Plessis. Other than a suggestion by McLintock that they appeared to
be senior and that the meeting was held in their
offices, there is no
evidence as to what normally goes with the position of senior
superintendent (Van Wyk) and superintendent
(Du Plessis). Those were
their positions until Mosiane and Van Wyk attended a conference in
October 1998, when Du Plessis acted
as senior superintendent.
Mosiane, Van Wyk and Du Plessis may have been appointed ‘to the
top three positions in ranking
in the security sub-cluster
hierarchy’, as the court a quo found - although I disagree with
that finding because there were
the vacant positions of two managers
between Mosiane and Van Wyk’s position - but in the overall
administrative structure
of the appellant they ranked very low. There
is no evidence that the certification of any official document of the
appellant was
done by the security sub-cluster, which could have
given the impression that Van Wyk had authority to certify a
resolution of Council.
Nor is there any evidence that the
transactions in issue fell within the category of what may be termed
the security sub-cluster’s
‘usual business’. Thus,
other than the mere appointments and the fact that they occupied
offices and might have had
access to letterheads and stamps, and the
fact that outsiders such as Rahme, Compufin’s representatives
and the Africon owners
had access to them, sufficient evidence of a
façade of regularity was lacking before the court a quo. It
follows, in my
view, that agency by estoppel (ostensible authority)
on the part of the appellant has not been established on the
evidence. There
was no representation by it.
[45] But that is not the
only basis upon which the respondents should have failed in the court
a quo. In my view, the acceptance,
by Compufin’s officials, of
the resolution was unreasonable. I have already rejected the
submissions that the appellant had
created a façade of
regularity that could have led any member of the public to believe,
reasonably, that Van Wyk had authority
to tell the world that Du
Plessis had authority to bind the appellant. Although the resolution
was contained in a letterhead bearing
the name of the
appellant, it is
introduced as ‘EXTRACT OF MEETING OF THE
HIRER
’
(my underlining) and not as an extract of a meeting of the Northern
Metropolitan Local Council, being the name of the appellant.
In the
documents constituting the three agreements Compufin is referred to
as ‘HIRER’ and the appellant as ‘USER’.
The
discrepancy of the reference, in the resolution, to the appellant as
the hirer would have drawn the attention of business persons
whose
function it was to satisfy themselves that contracts to be entered
into by them or their employers are properly concluded,
particularly
that all documents relating to those contracts are in order.
Blighnaut, Hall and, it must be accepted, Hopwood failed
in their
duty to scrutinise the resolution, in my view. Indeed, when it was
put to him that the resolution did not come from the
appellant
Blighnaut replied:
‘
We
do not know we accepted that it did getting it from Jeff Rahme and
trusting him.’
And when asked earlier,
whether he did not think he should have telephoned someone from the
appellant to check that they knew Du
Plessis’s authority, he
said they had placed their faith in the operations of Rahme.
Blighnaut clearly abdicated his duty
of ensuring that the resolution
was genuine.
[46] Moreover, the
resolution purported to confer authority on Du Plessis to bind the
appellant as and when he wished and to conclude
agreements for any
amount and in respect of any item which may happen to be recorded on
a transaction schedule, such as, for example,
the schedules to the
rental agreements in issue, with the description of the equipment to
be purchased. I do not believe that any
reasonable businessman who
knows the operations of an entity such as the appellant, relating to
decision making (McLintock said
Compufin did discounting for a lot of
town councils around the country), could ever be satisfied with such
an open ended resolution.
To do so would, in my view, clearly be
unreasonable.
[47] Lastly, McLintock
testified as follows when asked, during his evidence-in-chief, what
proof of authority was required by Compufin
as part of standard
procedure (when considering a proposal for a rental agreement where
someone acted on behalf of a principal):
‘
Well
depending upon the clients, a resolution would be required, copies of
minutes of meetings would be required, in other words
where the
topics of discussion were actually discussed in the meetings. But a
resolution confirming that the person signing the
agreement had the
capacity to contract. This would have to be on an original document.’
Later, when shown the
undated document containing the proposals to purchase radiophones and
which was withdrawn by Bosman from the
agenda of the Executive
Committee of the appellant McLintock identified it as the minutes of
the meeting ‘extracted [from]
the general minutes of the
meeting . . .’. One of the recommendations made in the document
was that ‘the rental expense
be debited against vote number
280-010-2595 (Guarding, NMLC Property)’. When asked what the
significance of the vote numbers
was he said:
‘
Well
that is very important because those numbers would be allocated with
regarding the way I understand various councils work because
we did a
lot of discounting for a lot of the town councils around the country
and that was quite a crucial factor with regarding
minutes.’
From these extracts it
appears that the minutes of a meeting of a town council at which a
resolution was passed authorising one
of its officials to act on its
behalf in concluding agreements was quite important for Compufin. Yet
the resolution that authorised
Du Plessis to conclude any number of
agreements on behalf of the appellant was not accompanied by the
minutes, or at least that
part of the minutes, that related to it.
The undated document shown to McLintock was no such minutes.
[48] I can only conclude
that Compufin’s officials dealt very casually and superficially
with the question of Du Plessis’s
authority. Their acceptance
of the resolution was not reasonable.
[49] In view of my
conclusions on the requirements of the alleged representation and the
reasonableness of its acceptance, it becomes
unnecessary to consider
the other requirements necessary for estoppel to arise. But there is
one aspect that I should mention in
passing. The court a quo admitted
in evidence what it referred to as admissions
binding on the appellant.
The admissions were contained in evidence given at the disciplinary
hearings of Du Plessis and another
employee, Lehmkuhl, and statements
and affidavits made during the investigations in preparation for the
disciplinary proceedings.
The record of the disciplinary proceedings
had been discovered by the appellant and the parties recorded their
agreement in their
rule 37 minute that the documents ‘may be
received in evidence … upon their mere production’, but
‘without
any admission as to the truth of what was said’.
The statements were made by employees of the appellant and, as I have
mentioned
above, Bosman presided over the disciplinary proceedings.
The basis for the admission of the contents of the statements and
evidence
was a passage in
Lawsa
16
where the following appears on the
topic of informal admissions generally:
‘
Provided
the various requirements have been met, admissions are admissible
against a party irrespective of whether he elects to
give evidence.
The hearsay rule does not exclude evidence of an admission. The
reason for its admissibility is that whatever a
person says to his
detriment is likely to be the truth.’
Regrettably the court a
quo did not mention any of the requirements, one of which is that the
statement containing the admission
must have been made to a third
party. (See
In re SS Winton;
Avenue Shipping Co Ltd (in Liquidation) & others v South African
Railways and Harbours & another
1938
CPD 247
at 249 – 251.)
[50] When confronted with
this requirement counsel for the respondents contended that the
statements were indeed made to a third
party, viz Blighnaut, who was
not an employee of the appellant and who was mandated with Bosman to
conduct the investigations around
Du Plessis’s signing of the
agreements on behalf of the appellant. He submitted that all the
documents were made
available to Blighnaut, who, together with Bosman, compiled a joint
report. But making a statement to a third
party and an already made
statement being given to a third party are two different things. What
the law requires is that the admission,
to be admissible in evidence
in these circumstances, must have been made by its maker to a third
party. There is no evidence that
this is what occurred in the present
case. In my
view, the court a quo
erred in admitting the admissions as evidence against the appellant.
They were inadmissible.
[51] In the result, the
appeal must succeed and the following order is made:
1 The appeal succeeds
with costs.
2 Paragraphs a, b and c
of the order of the court below are set aside and replaced with the
following:
‘
The plaintiffs’
claims against the first defendant are dismissed with costs.’
___________________
L Mpati
President
APPEARANCES
For the Appellant: A E
Franklin SC
D L Wood
Instructed by: Moodie &
Robertson, Johannesburg
Claude Reid, Bloemfontein
For the First and Second
Respondents: G D Harpur SC
A Coutsoudis
Instructed by: Lynn &
Main Inc, Johannesburg
McIntyre & Van der
Post, Bloemfontein
1
The
agreement was signed on behalf of Compufin Finance on 2 December
1998.
2
The
two agreements were signed on behalf of Compufin on 21 January 1999.
3
The
latter refers to ‘four purported agreements’, which is
an obvious error.
4
The
agreement in respect of the radio phones is referred to as the
second agreement and the one in respect of the radio stations
as the
third agreement.
5
During
his testimony Mosiane confirmed that he and Van Wyk attended a
security conference over the period 26 to 30 October 1998.
6
Hely-Hutchinson
v Brayhead Ltd & another
[1968] 1 QB 549
(CA);
[1967] 3 All
ER 98.
7
NBS
Bank Ltd v Cape Produce Co (Pty) Ltd & others
2002 (1) SA
396
(SCA) ([2002]
2 All SA 262)
para 24.
8
Cf
NBS Bank
, fn 7
above, para 25.
9
See
NBS Bank Ltd
fn
7 above, para 26.
10
Glofinco
v Absa Bank Ltd t/a United Bank
2002
(6) SA 470
(SCA).
11
Para
13.
12
Cf
Glofinco v Absa Bank,
fn
9 above, para 20.
13
Ibid.
14
The
identity of the other persons who were present at one of the
meetings testified to by McLintock is not known.
15
South
African Broadcasting Corporation v Coop & others
2006
(2) SA 217
(SCA), paras 74 and 75.
16
9
Lawsa
First
Reissue para 531.