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[2024] ZAKZPHC 3
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Yakaza Properties SA (Pty) Ltd v BTT Investment (Pty) Ltd (11338/2022P) [2024] ZAKZPHC 3 (30 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
11338/2022P
In
the matter between:
YAKAZA
PROPERTIES SA (PTY)
LTD
APPLICANT
(Registration
Number: 2018/035635/07)
and
BTT
INVESTMENT (PTY)
LTD
RESPONDENT
(Registration Number:
2017/489941/07)
Coram
:
Mossop J
Heard
:
25 January 2024
Delivered
:
30 January 2024
ORDER
The
following order is granted
:
1.
The respondent is granted condonation for the late delivery
of its
condonation application.
2.
The respondent is granted condonation for the late delivery
of the
answering affidavit deposed to by
Mr Muhammad
Saleem Khan on 14 February 2023
in the liquidation proceedings
instituted by the applicant against the respondent.
3.
In terms of the provisions of Uniform rule 6(5)
(e)
, the
respondent is granted leave to deliver the answering affidavit
deposed to by Mr Ali Mustafa Khan on 31 March 2023 in the liquidation
proceedings instituted by the applicant against the respondent.
4.
The respondent is granted condonation for the late delivery
of the
answering affidavit deposed to by Mr Ali Mustafa Khan on 31 March
2023.
5.
The applicant is granted leave to deliver a further affidavit,
if so
advised, in order to deal only with any differences that may exist
when the answering affidavit deposed to by Mr
Muhammad
Saleem Khan and the answering affidavit deposed to by
Mr Ali
Mustafa Khan are compared with one another.
6.
The respondent shall pay the applicant’s costs of opposition.
JUDGMENT
MOSSOP
J
:
[1]
The parties to this application have a litigious history with each
other.
Briefly stated, it comprises the following:
(a)
In August 2020, the applicant sought the eviction of the respondent
from certain
commercial business premises. The eviction application
was opposed by the respondent, was argued on the opposed roll of this
court
on 20 May 2021 and judgment was granted in the applicant’s
favour on 6 August 2021;
(b)
An application for leave to appeal was pursued by the respondent, was
opposed
by the applicant and was dismissed on 22 October 2021;
(c)
A petition to the Supreme Court of Appeal was also unsuccessful and
was
rejected by that court on 2 June 2022; and
(d)
On 25 August 2022, the applicant brought an application to liquidate
the respondent,
alleging that it is an unpaid creditor of the
respondent. It is alleged that the respondent owes it R765 000,
being unpaid
rental due by the respondent arising out of the
respondent’s occupation of the commercial business premises
mentioned above.
I shall refer to the liquidation application as ‘the
main application’.
[2]
What is before me is an application in which the respondent seeks the
following relief:
‘
1.
Respondent is granted condonation for the late delivery of its
answering affidavit.
2.
Respondent is granted condonation for the late delivery of this
condonation application.
3.
Respondent is granted leave to substitute, for the answering
affidavit that was
delivered on 15 February 2023, the affidavit a
copy of which is annexed hereto marked X.
4.
There is no order as to costs, provided that if Applicant opposes
this application,
it will be requested that it be ordered to pay the
costs of the application.’
I shall refer to this
application as ‘the condonation application’.
[3]
Notwithstanding that it is the applicant in the condonation
application,
I shall continue to refer to the respondent as ‘the
respondent’ because that is how it has described itself in its
notice of motion and in its founding affidavit in the condonation
application and it will accordingly avoid confusion.
[4]
From the wording of paragraph 3 of the notice of motion, it may be
discerned
that the condonation application involves two answering
affidavits. Why this is so will be considered in more detail shortly,
but
it may be helpful to first briefly give a thumbnail sketch of
what has occurred. An answering affidavit was deposed to on behalf
of
the respondent on 14 February 2023 (the first answering affidavit)
and was served on the applicant the next day. A second answering
affidavit was deposed to on 4 April 2023. It is not immediately
apparent from the papers whether it has been served, but a copy
of
the second answering affidavit is attached to the founding affidavit
in the condonation application. Save for the names of the
respective
deponents to the two answering affidavits, for each affidavit was
deposed to by a different person, the documents are
identical in
their content. The first answering affidavit was delivered out of
time. It follows that the second answering affidavit
is also out of
time for it was attested to after the first answering affidavit was
delivered. The respondent now seeks condonation
for the late delivery
of the second answering affidavit and at the same time seeks to
substitute the second answering affidavit
for the first answering
affidavit.
[5]
The answering affidavits are documents that have been filed in the
main
application. They constitute an answer to the applicant’s
attempts to liquidate the respondent. While the applicant has
insisted
on the respondent bringing the condonation application,
significantly, it has already delivered its reply to the first
answering
affidavit in the main application.
[6]
The
condonation application has been necessitated by what the deponent to
the respondent’s founding affidavit, Mr Carlos Miranda
(Mr
Miranda), an attorney of this court, describes as a ‘comedy of
errors’. The ordinary meaning of that phrase is
an
event or series of events made ridiculous by the number of errors
that have been made throughout.
[1]
The applicant
does not see the events in the same light and does
not recognise that any errors have been made. If I have understood
its case correctly, it asserts that the respondent has acted
purposefully and with design to delay the main application and that
no errors have therefore occurred.
[7]
The test to be applied when considering a condonation
application is not a thing of mystery and is well known. The Supreme
Court
of Appeal has noted that:
‘
.
. .
condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the court to understand clearly the reasons
and to assess the responsibility
.’
[2]
The
court went on to state that:
‘
.
. . if the non-compliance is time-related, then the date, duration
and extent of any obstacle on which reliance is placed must
be
spelled out.’
[3]
[8]
In
Van
Wyk v Unitas Hospital and another
,
[4]
the Constitutional Court stated that:
‘
An
applicant for condonation must give a full explanation for the
delay. In addition, the explanation must cover the entire
period
of delay. And, what is more, the explanation given must be
reasonable.’
[9]
A court
considering a condonation application has a discretion that it must
exercise judicially. In assessing the merits of such
an application,
the court makes a value judgment largely founded on the facts of the
matter.
[5]
Ultimately, the
consideration uppermost in the court’s mind will be the
interests of justice.
[6]
That
will require a consideration, inter alia, of the
nature
of the relief sought
,
‘the degree of non-compliance, the explanation therefor, the
importance of the case’, a respondent’s interest
in the
finality of the matter, ‘the convenience of the Court and the
avoidance of unnecessary delay in the administration
of justice’.
[7]
[10]
In support of its application, Mr Miranda states that by agreement
with the applicant’s
attorneys, the respondent was required to
deliver its answering affidavit in the main application by 22
November 2022, its notice
of intention to defend the main application
having been delivered by it on 1 November 2022 (which notice also
appears to have been
delivered out of time). The respondent had
previously been represented by another firm of attorneys in the
litigation relating
to the eviction of the respondent, mentioned at
the commencement of this judgment, and Mr Miranda’s firm took
the matter
over from those attorneys in late October 2022.
[11]
Mr Miranda
states in the respondent’s founding affidavit that he consulted
with the respondent’s director, a Mr Ali
Mustafa Khan (Mr
Ali),
[8]
regarding the main
application and that counsel was then briefed to prepare an answering
affidavit. Counsel was also instructed
to draw particulars of claim
in which the respondent intended to claim a refund of certain monies
from the applicant. When counsel
was briefed is never revealed by Mr
Miranda. Counsel advised Mr Miranda that he needed to consult with Mr
Ali in order to draw
the answering affidavit. This posed a difficulty
as Mr Ali had left for Pakistan, his country of origin, on 6 November
2022 and
was initially scheduled to only return to South Africa on 22
February 2023. However, whilst in Pakistan, Mr Ali deferred his
return
to this country until 24 March 2023. Mr Miranda states that he
was not initially aware that this was to occur, but later came to
know of this.
[12]
Counsel who had been briefed prepared the particulars of claim and
forwarded them to Mr
Miranda. The answering affidavit was not
prepared, presumably because counsel had not had the opportunity to
consult with Mr Ali.
I digress momentarily at this point to mention
the case made out by the respondent in the particulars of claim. They
reveal that
the respondent is the first plaintiff in that action,
that Mr Ali is the second plaintiff and that the applicant is the
defendant.
They go on to state that the first plaintiff and the
defendant concluded an agreement in terms of which the defendant
would reserve
certain business premises for a period of three days
for the first plaintiff and that the second plaintiff would pay to
the defendant
a refundable reservation fee of R600 000 to secure
that reservation (the reservation fee). For some reason, the second
plaintiff
only paid the defendant the amount of R500 000, but,
nonetheless, an agreement of lease was concluded in respect of the
reserved
business premises. The refund due arising out of that
agreement would be paid either to the first plaintiff or to the
second plaintiff.
As that refund had not been paid, the plaintiffs
demanded it from the defendant. An exception was subsequently taken
to the particulars
of claim by the applicant but I am informed that
it was dismissed by Olsen J after hearing argument. No plea has as
yet been delivered
by the applicant to the particulars of claim.
[13]
Reverting to Mr Miranda’s narration of the facts of the
condonation application,
the deadline for the delivery of the
answering affidavit in the main application, 22 November 2022,
neared, was reached, was then
passed and it was not delivered. Mr
Miranda states that he expected the draft answering affidavit from
counsel because he had received
the particulars of claim from him.
But the answering affidavit did not come.
[14]
What did come was a letter from the applicant’s attorneys,
dated 28 November 2022,
recording the non-delivery of the answering
affidavit by the agreed date and putting Mr Miranda on terms to
deliver it by close
of business of the next day, 29 November 2022. Mr
Miranda responded the same day by email stating that:
‘
Unfortunately
there has been some logistical issues and we will try and file our
client’s affidavit by tomorrow but if not
by the end of the
week.’
The
answering affidavit was not delivered the next day, nor by the end of
the week.
[15]
It is not clear to me how this assurance could have been given by Mr
Miranda. He knew that
counsel required to consult with Mr Ali before
he drew the answering affidavit but he also knew that Mr Ali was not
in the country
at the time that he responded to the applicant’s
attorneys. How this difficulty was to be overcome and therefore
permit the
delivery of the answering affidavit as promised by Mr
Miranda is not readily apparent.
[16]
Mr Miranda continues and states that the respondent admitted that it
owed the applicant
at least the amount of R265 000 and that this
was to be tendered to the applicant in the belief that the payment of
that amount
would bring a halt to the main application. But while
this amount was admitted by the respondent, Mr Ali had not placed Mr
Miranda
in the financial position to make the tender before he left
for Pakistan.
[17]
Because the respondent did not deliver its answering affidavit by the
agreed date and then
not as promised by Mr Miranda in his email of 28
November 2022, on 12 December 2022, the applicant’s attorneys
wrote to Mr
Miranda and informed him that the matter would now be set
down on the unopposed motion roll on 22 February 2023. The December
shut
down was then reached and the matter was not given the attention
that it undoubtedly required from Mr Miranda’s offices. It
was,
in fact, not given any attention at all for a substantial period.
[18]
On 25 January 2023, counsel forwarded a draft answering affidavit to
Mr Miranda for Mr
Ali to sign but it could not be signed because Mr
Ali was still out of the country. It is not explained how counsel
managed to
produce this work given his previous insistence that he
needed to consult with Mr Ali prior to drafting that document. Mr Ali
was
still in Pakistan and, according to Mr Miranda, he could not make
arrangements to sign and commission the answering affidavit at
the
South African High Commission in that country. Mr Miranda states that
Mr Ali indicated to him that it would be easier for another
Mr Khan,
being Mr Muhammed Saleem Khan (Mr Saleem), to sign the answering
affidavit. This idea was scotched by Mr Miranda as Mr
Saleem was at
that stage not a director of the respondent and could not positively
depose to any of the facts in that affidavit.
[19]
Mr Miranda then received the payment of R265 000 from the
respondent and tendered
it to the applicant on 30 January 2023 in the
certain, but mistaken, belief that such a tender would be accepted by
the applicant,
thereby putting an end to the main application. To his
apparent surprise, the tender was not accepted and the main
application
proceeded. I was advised by both counsel for the
applicant, Ms van Jaarsveld, and counsel for the respondent, Mr
Temlett, that
the amount of R265 000 has now been paid to, and
accepted by, the applicant. The balance of the alleged indebtedness
of the
respondent to the applicant is thus the amount of R500 000,
which is the amount claimed by the respondent from the applicant
in
its particulars of claim.
[20]
Meanwhile, Mr Ali, while still in Pakistan, resigned as a director of
the respondent and
Mr Saleem became a director on 9 February 2023. Mr
Miranda then sent the draft answering affidavit prepared by counsel,
and intended
for Mr Ali’s signature, to Mr Saleem in Microsoft
Word format. Why this was done is not explained in the papers. Mr
Saleem
unilaterally then amended the draft answering affidavit by
deleting Mr Ali’s name and inserting his name in the place
thereof
and then signed it and had it commissioned on 14 February
2023. Mr Saleem made no other changes to the answering affidavit. The
answering affidavit was then served on the applicant’s
attorneys the next day by a member of Mr Miranda’s staff,
apparently
in his absence.
[21]
As the applicant had indicated would occur, the main application was
enrolled on the unopposed
motion roll on 22 February 2023 when,
coincidentally, it came before myself. I granted the following order:
‘
1.
The matter be and is hereby adjourned to 13 April 2023.
2.
The Respondent is to deliver its condonation application within 10
days of this
order.
3.
The Respondent to pay the costs of this adjournment.’
[22]
Ultimately, that order was not complied with and the condonation
application was not delivered
within the time period ordered.
[23]
Mr Miranda states that he thereafter met with counsel on 3 March 2023
for the purpose of
preparing the required condonation application. At
this consultation, it emerged that counsel had not realised that Mr
Saleem,
and not Mr Ali, had deposed to the first answering affidavit
that had already been delivered to the applicant. Counsel was of the
view that this occasioned a difficulty for the respondent as the
first answering affidavit had been drafted with the intention
that Mr
Ali would sign it. Mr Miranda then had an epiphany and realised that
condonation for the late filing of the first answering
affidavit
signed by Mr Saleem would not cut the mustard: a second answering
affidavit deposed to by Mr Ali would have to be prepared
and
condonation for its late filing would have to be sought. That is what
this condonation application is designed to achieve.
[24]
Mr Miranda states that Mr Ali returned to South Africa on 24 March
2023 and met with him
on 31 March 2023, when he signed the second
answering affidavit. Mr Miranda then met with counsel on 5 April 2023
to prepare the
present condonation application. It was subsequently
launched on 11 April 2023.
[25]
All of this constitutes the respondent’s ‘comedy of
errors’. The applicant
opposes condonation being granted and
opposes the second answering affidavit being substituted for the
first answering affidavit.
[26]
As a general proposition, it would be fair to state that the
applicant holds the view that
the respondent has engaged in a
deliberate strategy of delay and that evidence of this foot dragging
is manifested by the delay
in the delivery of both the first and
second answering affidavits in the main application. This point of
view would appear to be
largely coloured by the respondent’s
conduct in the eviction application mentioned previously.
[27]
While the applicant may be anxious to finally resolve all the issues
between itself and
the respondent, there does not appear to me to be
any evidence of the strategy complained of by the applicant. The
steps taken
by the respondent that may have prevented a swift and
final resolution of the eviction matter were all steps that the law
countenances
and makes available to parties aggrieved by a decision
of the high court. The respondent cannot be criticised for taking
advantage
of that which the law permits. The fact that the respondent
did not succeed in its attempts to appeal does not mean it was not
entitled to attempt such appeal.
[28]
Indeed, it appears to me that the applicant has contributed somewhat
to the delay in finalising
the matter. While it is within its rights
to require the respondent to formally apply for condonation, sight
must not be lost of
the fact that the first answering affidavit was
delivered on 15 February 2023 and had already been replied to by the
applicant
on 1 March 2023. The papers were then at that stage
complete. Rather than set the matter down for argument on the opposed
roll,
the applicant took the principled stand that condonation should
be sought by the respondent. It must have realised that this would
delay the final adjudication of the main application. Moreover, the
condonation application was set down separately from the
consideration
of the main application. Had they been set down
together, they could have been determined together and some of the
delay that has
eventuated could have been averted. The longest delay
in the matter is the delay occasioned by the wait for a date on the
opposed
roll.
[29]
The applicant commences its opposition to the condonation
application by taking two
points in limine in its answering
affidavit. The first point taken is that while the respondent may
seek condonation for not delivering
its second answering affidavit in
the main application within the time prescribed by the Uniform Rules
of Court, condonation cannot
be sought for the failure to comply with
my order of 22 February 2023, wherein I directed that the condonation
application had
to be brought within ten days of that date. The
applicant submits that the court cannot condone non-compliance with
an order, only
non-compliance with a rule. The second point in limine
is that the respondent may seek leave to deliver a further affidavit
but
the Uniform Rules make no provision for the substitution of one
affidavit for another.
[30]
The first point is entirely without merit and was correctly abandoned
by Ms van Jaarsveld,
who appeared for the applicant. I need not say
anything further on this issue.
[31]
As
regards the second point in limine, it seems to me that there is some
merit in it. The Uniform Rules of Court do not deal with
the issue
and I have found only two matters
[9]
where the issue of substitution of affidavits was in issue. In
Ndlebe
v Budget Insurance Limited
,
[10]
there
was an application to file a supplementary affidavit and an
application to file a substituted affidavit. The court also had
to
deal with two applications in terms of rule 30. The court did not
rule on the substitution application as it was held that substitution
was not necessary where a supplementary affidavit was filed, with the
court stating that:
‘
It
is my firm view that the interest of justice would not be served by
discarding the supplementary affidavit and/or the substitution
of the
answering affidavit as sought by the applicant in both
applications.’
[11]
[32]
In
Umsobomvu
Coal Proprietary Limited v Transasia Mineral SA Proprietary
Limited
,
[12]
an application to substitute an affidavit was brought based on an
allegation that the answering affidavit was:
‘…
deposed to and delivered
fraudulently in this application as well as prior applications on
behalf of the respondent by a Ms Roytblat.’
[13]
However,
it appears that the application was not persisted in and no judgment
on it was therefore delivered.
[33]
There is no suggestion of a fraud having been committed in this
matter. It is simply a
question of who had direct knowledge of the
information contained in the answering affidavit and who was entitled
to depose to
the affidavit. The first affidavit is entirely regular
in its form and in its commissioning and has properly been delivered
and
received and replied to. It purports to record what the deponent
thereto states as being the truth. I am not persuaded that in those
circumstances I am entitled to allow its withdrawal. On the other
hand, the respondent is entitled to deliver what it regards as
a
properly commissioned answering affidavit deposed to by the person
that it claims has true and direct knowledge of the facts.
However,
before resolving what should occur, I consider whether condonation
should be granted for the late delivery of the answering
affidavits.
[34]
The explanation narrated by Mr Miranda is reasonably comprehensive
and permits the court
to understand, if not approve of, what has
happened in the matter. It covers the full period of the delay and
describes the difficulties
that he experienced in the absence of Mr
Ali from this country. That absence was unfortunate and could not
have happened at a worse
time when viewed in the context of the main
application. But it happened. The applicant has not been
seriously prejudiced
thereby and has been content to await the date
on the opposed roll to argue about condonation.
[35]
It appears
to me that the respondent has prospects of resisting the main
application. It states that it is entitled to the refund
of the
reservation fee. Whether this is a view shared by the applicant is,
unfortunately, not known at this stage as it has not
pleaded to the
respondent’s particulars of claim. If the reservation fee
refund is due to the respondent, then the balance
of the amount
claimed by the applicant from it would be extinguished by the
operation of set-off
[14]
and
the liquidation application would founder. If the refund is due to Mr
Ali, the R500 000 is tendered by him to the applicant,
again
extinguishing the respondent’s debt to the applicant. It is
difficult to understand why the applicant persists with
the main
application when payment of the indebtedness owed to it has been
offered or tendered.
[36]
The relief sought by the applicant in the main application is the
compulsory termination
of the legal persona of the respondent. It is
therefore a matter of some consequence to the respondent. The degree
of non-compliance
has not been slight but, as mentioned, the
respondent appears to have prospects of resisting the winding-up
order sought by the
applicant. The applicant has known since 15
February 2023 what the defence of the respondent is to the winding-up
application.
If condonation is given to permit the correct answering
affidavit, which is identical in content to the first answering
affidavit,
to be delivered, the applicant will not be taken by
surprise nor will it be prejudiced.
[37]
It seems to me that the interests of justice require me to condone
the late delivery of
both the first and the second answering
affidavits. I am, however, not prepared to allow the withdrawal of
the first answering
affidavit and to permit the second answering
affidavit to be substituted for it. I am, however, prepared to invoke
the provisions
of Uniform rule 6(5)
(e)
which provides that a
further affidavit may be delivered by a party with the leave of the
court. That rule reads as follows:
‘
Within
10 days of the service upon the respondent of the affidavit and
documents referred to in sub-paragraph (ii) of paragraph
(d) of
subrule (5) the applicant may deliver a replying affidavit. The court
may in its discretion permit the filing of further
affidavits.’
When
the main application is eventually argued, there will thus be two
answering affidavits, identical in content but deposed to
by two
different persons. The parties will have to decide how they address
this issue. To the extent that it is advised to do so,
the applicant
is given leave to deliver a further affidavit that deals only with
any differences that may exist when the two answering
affidavits are
compared with one another.
[38]
On
the question of costs, the respondent in bringing this application is
seeking an indulgence from the court. In
Premier,
Western Cape v Lakay
,
[15]
the Supreme Court of Appeal observed that:
‘
Ordinarily,
in applications for condonation for non-observance of court
procedure, a litigant is obliged to seek the indulgence
of the court
whatever the attitude of the other side and for that reason will have
to pay the latter's costs if it does oppose,
unless the opposition
was unreasonable.’
[39]
Given the facts of the matter and the length of the delay in the
delivery of the answering
affidavits, the applicant was entitled to
oppose the relief claimed by the respondent in the condonation
application. It would
be just in the circumstances therefore to
direct that the respondent shall pay the applicant’s costs
[40]
I accordingly grant the following order:
1.
The respondent is granted condonation for the late delivery
of its
condonation application.
2.
The respondent is granted condonation for the late delivery
of the
answering affidavit deposed to by
Mr Muhammad
Saleem Khan on 14 February 2023
in the liquidation proceedings
instituted by the applicant against the respondent.
3.
In terms of the provisions of Uniform rule 6(5)
(e)
, the
respondent is granted leave to deliver the answering affidavit
deposed to by Mr Ali Mustafa Khan on 31 March 2023 in the liquidation
proceedings instituted by the applicant against the respondent.
4.
The respondent is granted condonation for the late delivery
of the
answering affidavit deposed to by Mr Ali Mustafa Khan on 31 March
2023.
5.
The applicant is granted leave to deliver a further affidavit,
if so
advised, in order to deal only with any differences that may exist
when the answering affidavit deposed to by Mr
Muhammad
Saleem Khan and the answering affidavit deposed to by
Mr Ali
Mustafa Khan are compared with one another.
6.
The respondent shall pay the applicant’s costs of opposition.
MOSSOP
J
APPEARANCES
Counsel
for the applicant:
Ms M
E van Jaarsveld
Instructed
by:
Schabort
Potgieter Attorneys Incorporated
189
Soutpansberg Road
Riviera
Pretoria
Care
of:
Hay
and Scott Attorneys
Top
Floor, 3 Highgate Drive
Redlands
Estate, 1 George MacFarlane Lane
Pietermaritzburg
Counsel
for the respondent:
Mr J
W Temlett
Instructed
by:
Carlos
Miranda Attorneys
273
Prince Alfred Street
Pietermaritzburg
Date
of argument:
25
January 2024
Date
of judgment:
30
January 2024
[1]
Merriam-Webster
Online Dictionary.
[2]
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA);
[2003] 4 All SA 37
(SCA) para 6.
[3]
Ibid
para 6.
[4]
Van
Wyk v Unitas Hospital and another
(Open
Democratic Advice Centre as amicus curiae)
[2007]
ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) p
ara
22.
[5]
Grootboom
v National Prosecuting Authority and another
[2013]
ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC) para 35.
[6]
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) para 3.
[7]
Federated
Employers Fire & General Insurance Co Ltd and another v
McKenzie
1969
(3) SA 360
(A) at 362F-G.
[8]
Mr
Khan is referred to as ‘Mr Ali’ because there is another
person involved in these events by the name of Mr Muhammad
Saleem
Khan, and it would be unhelpful, and confusing, to refer to both
gentlemen as ‘Mr Khan’. Both will therefore
be referred
to by their forename. No disrespect is intended by such reference.
[9]
During argument, I indicated to Ms van Jaarsveld that I had found
only one judgment: I have subsequently found another.
[10]
Ndlebe
v Budget Insurance Limited
[2019]
ZAGPJHC 320.
[11]
Ibid
para 14.
[12]
Umsobomvu
Coal Proprietary Limited v Transasia Mineral SA Proprietary Limited
[2022] ZAGPPHC 893.
[13]
Ibid
para 6.
[14]
Standard
Bank of South Africa Ltd v Echo Petroleum CC
2012
(5) SA 283
(SCA)
para 33.
[15]
Premier,
Western Cape v Lakay
[2011] ZASCA 224
;
2012 (2) SA 1
(SCA) para 25.