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[2023] ZAFSHC 28
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Highpoint Manufacturing (Pty) Limited v Emerson Assets Holdings (Pty) Ltd and Others (3963/2021) [2023] ZAFSHC 28 (6 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:3963/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
HIGHPOINT
MANUFACTURING (PTY) LIMITED
Applicant
and
EMERSON
ASSETS HOLDINGS (PTY)
LTD
1
st
Respondent
ERMELO
TRUCK AND TRACTOR CENTRE (PTY) LTD
2
nd
Respondent
UD
TRUCKS SOUTH AFRICA (PTY)
LTD
3rd Respondent
HEARD
ON:
17 NOVEMBER 2022
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down are deemed to be 8h30 on 6 February 2023.
Introduction
[1]
The applicant seeks leave of the court to serve and file a
third-party notice on the
third respondent in terms of Uniform Rule
13(3)(b) which provides that after the close of pleadings, a third
party may only be
served with the leave of the court. The third
respondent is the only party that opposes the application.
[2]
The claim against the third respondent (who is also the second third
party) stems from
the plaintiff’s (the first respondent in this
application) action against the applicant (the defendant in the main
action)
for damages arising from the sale of a truck, a new white ED
Trucks E26 CWE 6x4 Rigid F/C Quester with external throttle control
model E26001 425, engine number [....] and chassis number (VIN)
[....] fitted by the third respondent with an HPVR-1000 10 000
litre combination jetting and vacuum body.
[3]
The thrust of the annexure to the third party notice reads as
follows:
“
If
it is held that:
(a)
The chassis and/or cab was not manufactured
with reasonable skill and care; alternatively
(b)
Was not fit for the purpose it was designed
and manufactured for; and/or
(c)
That the gearbox or any other part of the
chassis and cab provided by the First Third Party, as negotiated and
agreed with the plaintiff,
received by the Defendant for the
manufacturing and fitment of the HPVR-1000 10 000 liter
combination jetting and vacuum body
on the specific instance and
request of the Plaintiff, is and/or was defective, then the
Defendant:
(i)
Received
a defective chassis and cab from the First Third Party; and/or
alternatively
(ii)
That
the Second Third Party warranted against defectiveness of the chassis
and cab supplied and is thus liable for the damages and
repairs.
(iii)
Having
regard to the terms of and indemnity as detailed in the warranty
against. defectiveness by the Second Third Party on supply
of a new
chassis and cab, and if the Defendant is held liable to the Plaintiff
in terms of the plaintiff’s claim as set out
in the particulars
of claim attached hereto, then the Defendant is entitled to and prays
for an order against the Second Third
Party in the following terms:
(a)
A full indemnity of any amount
(including interest) for which the Defendant is held liable to the
Plaintiff, in accordance with
the Plaintiff’s claim against the
defendant;
(b)
Cost of suit, including the cost
of the Defendant in defending the action against the Plaintiff.”
[4]
The essence of the third respondent’s opposition is based on
the following:
4.1
the application is an indulgence that is sought
belatedly from this court, with no good cause or reasonable
explanation
for the extensive delay in bringing the application.
4.2
It is without merit, since the alleged claim against UD
Trucks has prescribed and the joinder of UD Trucks to the
main action
would therefore be a futile exercise in causing further delay and
distraction in the main action, in addition to being
a waste of this
court’s resources.
4.3
It is without merit and appears to be predicated on an
alleged warranty that does not find application in the present
instance.
4.4
It is an attempt to join UD Trucks on the basis of a
third-party notice that is excipiable when the test as set
out by
case law precedent is applied to the third-party notice.
4.5
It does not make out a
prima facie
case against
UD Trucks.
Background
[5]
On 2 August 2018, the second
respondent delivered a truck to the applicant who effected
an
alteration to the truck by modifying and fitting it with a 10 000
litre combination jetting and vacuum body. The alteration
was fitted
to the cab and chassis of the truck. The third respondent
manufactured the cab and chassis of the truck. The applicant
delivered the modified truck to the first respondent on 27 May 2019.
[6]
At the instance of the first respondent, a letter of demand was
dispatched to the
third respondent, stating that the truck’s
gearbox was materially defective and legal remedies would be pursued
against the
third respondent in relation to the truck.
[1]
The third respondent was required to replace the truck of the same
model with a different gearbox, in good working order and condition
which was subject to a minimum two-year warranty by 26 March 2021.
[2]
It was stated in this letter that a letter of demand was also
dispatched to the applicant.
[3]
[7]
The third respondent replied to
the first respondent’s letter of demand on 1 April
2021 and
indicated that it had investigated the history and nature of the
repairs to the truck and the parts to be replaced and
had found that
the damage caused had been as a result of driver conduct. The first
two repairs were warrantable due to a factory
fault. However, the
subsequent five failures of the truck’s gearbox or any other
component were not materially defective
or defective in any manner
that would necessitate continuous further repairs.
[4]
[8]
The first respondent issued a
summons against the applicant on 27 August 2021, alleging
amongst
others, that the truck was not manufactured with reasonable skill and
care, alternatively, had a defective gearbox on delivery
to the
applicant, subsequently to the Standard Bank
[5]
and the first respondent.
[6]
The
applicant filed its Plea in the action together with a third party
notice against the second respondent. The applicant pleaded
that it
did not manufacture the cab and chassis, which included the engine
and gearbox, nor was it the underwriter of the manufacturer’s
warranty as accepted by the first respondent.
[7]
The cab and chassis, including the engine and gearbox, were supplied
as a new vehicle subject to the manufacturer’s warranty
by the
second respondent as per the respective agreements between the first
respondent and the second respondent and the first
respondent and the
applicant as pleaded.
[8]
[9]
Pleadings closed on 23 December
2021.
[9]
The first respondent
filed its discovery affidavit on 25 February 2022. The applicant’s
attorneys inspected the discovered
documents on 28 March 2022.
[10]
In both written and oral arguments, the applicant submitted that the
application should succeed as the claim against the third
respondent
had not prescribed as:
9.1
A claim for indemnification, as sought by the applicant
in terms of Rule 13, does not constitute a debt for the
purposes of
the Prescription Act;
9.2
The third respondent wilfully prevented the applicant
from coming to know of the existence of the admitted factory
faults
to the cab and chassis of the truck, specifically in relation to the
gearbox;
9.3
The applicant only became aware of and obtained
knowledge of the admitted factory fault on 28 March 2022, which
gave
rise to the first respondent’s claim against the applicant.
9.4
The third respondent had attended to at least two of the
“warrantable” remedial repairs and five repairs
under the
warranty. The third respondent relied on the terms of the warranty to
exclude further repairs.
[11]
The
Legal position
[10]
Rule
13 (1) and (2) of
the Uniform Rules of Court (which regulates the third-party party
procedure) provide as follows:
“
(1)
Where a party in any action claims—
(a)
as against any other person not a party to the action (in this rule
called a “third party”) that
such party is entitled, in
respect of any relief claimed against him, to a
contribution
or indemnification
from such third party, or (b) any question
or issue in the action is substantially the same as a question or
issue which has arisen
or will arise between such party and the third
party, and should properly be determined not only as between any
parties to the
action but also as between such parties and the third
party or between any of them, such party may issue a notice,
hereinafter
referred to as a third party notice, as near as may be in
accordance with Form 7 of the First Schedule, which notice shall be
served
by the sheriff.
(2) Such notice shall
state the nature and grounds of the claim of the party issuing the
same, the question or issue to be determined,
and any relief or
remedy claimed. In so far as the statement of the claim and the
question or issue are concerned, the rules with
regard to pleadings
and to summonses shall mutatis mutandis apply.
[11]
The
test to be applied in applications of this nature was stated as
follows in
Wapnick
and Another v Durban City Garage and Others
[12]
:
“
It
seems to me that an application for leave to give a third party
notice is also one of the same genus. Although good cause is
not in terms required to be shown the Court would obviously not grant
leave if it should appear that the applicant's claim is patently
unfounded. Whilst I am not prepared to say that it is a sine qua
non to the success of the application that the applicant
should
make out a prima facie case on the merits, I do believe it
correct to state that it is
in general
required of such an applicant to furnish a satisfactory explanation
for his failure to give the notice before close of
pleadings and to
make out a prima facie case against the person he seeks to
sue by alleging facts which, if established
at the trial, would
entitle him to succeed.”
[12]
In
Mercantile
Bank LTD v Carlisle and Another,
[13]
the court’s approach was that,
it
should be a sine qua non to the success of such an application that
the applicant should make out a prima facie case on the merits,
in
the sense of alleging facts, which if established at the trial, would
entitle it to succeed. If no prima facie case is made
out in the
claim as set out in the notice and annexure, it would be excipiable
in that it would not disclose a cause of action
and inconceivable
that a court would permit the third party joinder. It was stated
further that:
“
The
prima
facie case, or absence of excipiability, must of course be
weighed in the light of the totality of the available
facts. The
applicant may, for instance, present a technically correct pleading,
whereas the common cause facts as they emerge from
the affidavits may
make it clear that the case against the third party, if pleaded
according to those facts, could never succeed.
To that extent,
the prima facie case, or absence of excipiability, must be
qualified by having regard to the totality
of the facts. In this
exercise, it must be borne in mind that the purpose of the Rule is to
prevent a multiplicity of actions (MCC
Contracts (Pty) Ltd v Coertzen
and Others
1998
(4) SA 1046 (SCA)
at
1049J - 1050A), the Court is given a wide discretion (Wapnick v
Durban City Garage (supra at 423E)), and a lenient approach
is
called for. Accordingly, if on the totality of the facts, the case
against the third party is totally unfounded, the joinder
would be
refused. It must be a clear case, for it is the function of the
trial Court to decide disputes, and joinders should
in my view
not be refused save in the clearest of cases.”
[13]
In P
adongelukkefonds
v Van den Berg
[14]
the court held that although the applicant had clearly failed to make
out a
prima
facie
case, it would in the circumstances of the case not be a proper
exercise of the Court's discretion to slam the door in the
applicant's
face, particularly in view thereof that such a step would
in all probability leave him without any remedy against the second
respondent.
The application was granted. In
Pitsiladi
and Others v Absa Bank and Others,
[15]
contrary to
Mercantile
Bank Ltd,
[16]
the view was expressed that
a
draft third party notice annexed to an application under subrule (3)
is not a pleading, at least not until such time as the applicant
has
been granted
leave
as envisaged by the said subrule. The purpose thereof is to satisfy
the Court that the applicant has a
prima
facie
case
vis-à-vis
the
third party and not that it constitutes a legally valid pleading. To
dismiss the application on the basis that the draft
third party
notice is excipiable would deny the applicant the opportunity to
amend the notice and remove the cause of complaint,
as he may
otherwise have been able to do if an exception was delivered in terms
of Rule 23. This may leave the applicant remediless
against the
third party or may result in a multiplicity of actions, exactly what
Rule 13 is intended to avoid.
[17]
[14]
The court
[18]
stated that
to
establish a prima facie case for purposes of Rule
13(3)(b) means that the applicant's case on the merits must
not
be totally unfounded, and should be based on facts mentioned in
outline, which, if proved, would constitute a claim. Unless
the Court
is satisfied on a conspectus of all the facts that the
applicant's case is clearly without merit, factual
and legal
issues raised by an application in terms of subrule (3) are rather to
be determined at the trial or left to be addressed
in the pleadings
which the third party is entitled to file in terms of Rule 13.
[15]
Having considered the above, it is evident that an applicant must,
firstly, furnish a satisfactory explanation
for his/her failure to
issue the notice before the close of pleadings and, secondly, the
applicant’s case on the merits must
not be totally unfounded,
and should be based on facts mentioned in outline, which, if proved,
would constitute a claim. The court
should be satisfied on a
conspectus of all the facts that the applicant’s case is
clearly without merit before rejecting
it.
The parties’
submissions
[16]
It was submitted in the applicant’s written
heads of argument that the test was “
merely
to provide a satisfactory explanation
”
[19]
as to why the notice was not served before 23 December 2021. The
summary of the explanation, it was contended, was that the applicant
only became aware of the admitted factory fault on 28 March 2022 on
perusal of the discovered documents.
[20]
The third respondent contended that the applicant’s version
under oath was clearly and blatantly belied and contradicted
by the
papers and correspondence before the court. Any information that the
applicant was desirous of obtaining at any point prior
to the close
of pleadings, was within reach of its fingertips as it was aware of
the third respondent’s involvement as a
manufacturer of the
original cab and chassis.
[21]
[17]
The third respondent argued that the applicant and
its attorneys had this knowledge throughout the main
action
proceedings, and it was set out in the correspondence
[22]
addressed to the applicant by the first respondent’s attorneys
on 22 July 2022. In its answering affidavit,
[23]
the third respondent stated that:
‘’
71.
In particular,
and on or about 22 July 2022, the attorneys acting on behalf of the
first respondent addressed correspondence to
the applicant’s
attorneys, wherein the first respondent emphasised that the intended
cost order was unfounded and without
lawful basis since, inter alia:
71.1 The applicant had
already been aware since 12 March 2021 that the first respondent had
dispatched its letter of demand to UD
Trucks, which date was before
the main action had even commenced.
71.2 The applicant
should have pleaded misjoinder in the main application, but instead
elected to delay and is only now attempting
to advance a claim for
indemnification against UD Trucks at this late stage.
71.3 The applicant has
been “well aware” of UD Trucks’ involvement since
even before the action was instituted
and is therefore seeking an
indulgence with the present application.
71.4 The applicant is
not entitled to any costs in this application, even if it were
opposed by any party, unless the opposition
was unreasonable.
71.5 This letter is
annexed hereto as “AA1”.
[18]
This letter to the applicant by the first respondent was prompted
when the applicant sought a
cost order against the former but not
against the second and third respondents in the application for the
joinder of the third
respondent. The first respondent indicated its
opposition to the application solely on the basis of the envisaged
cost order against
it as it viewed it as unfounded and without a
lawful basis. The applicant capitulated and an agreement was reached
with the first
respondent that the applicant would not persist in
seeking a cost order against the first respondent in which event the
first respondent
would not oppose the application.
[24]
The attorneys of the third respondent, in reaction to the third party
notice served on it, addressed a letter to the applicant’s
attorneys on 2 August 2022 and informed them that:
“
73.1
Any claim against UD Trucks on the basis of the manufacturing of the
cab and chassis has already prescribed.
73.2 Any claim which
may have arisen under the warranty is similarly time-barred,
prescribed and of no force and effect.
73.3 The application
does not make out a prima facie case against UD Trucks.
73.4 The joinder of UD
Trucks will be a fruitless exercise and a waste of this Court’s
resources.
73.5
This letter is annexed hereto as annexure “AA2”.
[25]
[19]
In response, the applicant encouraged the third
respondent to oppose the application and to deliver its
answering
affidavit.
[26]
[20]
In support of its argument that the claim had
prescribed, the third respondent relied on
Duet
and Magnum Financial Services CC (in liquidation) v Koster
[27]
where it was held that while a debt for purposes of the Prescription
Act entailed both a right and a corresponding obligation,
the
converse of a right would be better described by the word ‘liability’
because at times the exercise of a right
calls for no action on the
part of the ‘debtor’, but only for the ‘debtor’
to submit himself or herself
to the exercise of the right.
[28]
The third respondent’s debt or liability to the applicant was
extinguished by prescription as the debt or the third respondent’s
liability towards the applicant started to run on 2 August 2018 when
the latter accepted the delivery of the truck to effect repairs
to it
being fully aware that the third respondent had manufactured the
truck’s cab and chassis. Since February 2018, the
applicant was
already aware that it would be required to fit its alteration to the
cab and chassis of the truck as manufactured
by the third
respondent.
[29]
[21]
The applicant contended that the claim had not
prescribed as section12(2) of the Prescription Act provides
that if
the debtor wilfully prevents the creditor from coming to know of the
existence of the debt, prescription shall not commence
to run until
the creditor becomes aware of the existence of the debt. Although the
applicant was aware who the manufacturer of
the cab and chassis was
at the time of the delivery of the truck to the applicant, it could
not have reasonably been aware that
the third respondent admitted the
defectiveness of the truck as indicated in the discovered documents.
The third respondent wilfully
prevented the applicant and the first
respondent from coming to know of the factory fault and consequently,
of the claim against
the third respondent.
[30]
[22]
It was stated as follows in the Replying Affidavit:
“
Having
taken reasonable care in the matter, and when the problems
experienced by Emerson was brought under attention of the Applicant,
numerous discussions and meetings were held between the Applicant,
having been represented by myself, and Awie Pistorius, an employee
of
UD Trucks, the Third Respondent, being the manufacturer of the cab
and chassis, including the gearbox.
It was at all times
Awie Pistorius expressed the opinion to myself that the cause of the
problems was rooted in the driver’s
technique, further alleging
that the vehicle itself had been inspected by the Third Respondent
and/or representatives thereof,
finding it in good order.
The
opinion and advice of Awie Pistorius were at all times accepted by
the Applicant, myself included, to such an extent that an
assessment
of the usual driver of the vehicle was arranged at the premises of
the Applicant on 19 March 2021.
[31]
The
only conclusion is that UD Trucks, the Third Respondent, wilfully
withheld the information from the Applicant, furthermore wilfully
prevented the Applicant from coming to know thereof and deliberately
attempted to mislead the Applicant, and Emerson, as to the
true cause
of the issues.”
[32]
[23]
In its Heads of Argument and oral address, the
applicant submitted that the indemnification sought by it
in terms of
the provisions of Rule 13, did not fall within the definition of a
debt and had thus not prescribed. A debt contemplated
in the
Prescription Act did not cover the indemnification sought by the
Applicant and the provisions of the Act did not therefore
apply.
Relying on the narrow interpretation of a debt as suggested in
Makate
v Vodacom (Pty) Ltd
,
[33]
the applicant submitted that the indemnification sought was not a
debt and there was no corresponding debt or liability until the
court, at trial, found that the applicant was liable to the first
respondent and subsequent thereto, that the third respondent
must
indemnify the applicant against such liability.
[24]
The applicant stated that it first became aware of the repairs that
the truck and specifically
the gearbox required repairs on 10
September 2019.
[34]
Although
it was aware that the third respondent was the manufacturer of the
cab and chassis as at the date of the delivery thereof
to the
applicant, it could not reasonably have been aware of the fact that
the third respondent admitted the defectiveness thereof.
[35]
When the problems experienced by the first respondent were brought to
its attention, numerous discussions and meetings were held
between
the applicant and the third respondent.
[36]
When the truck was delivered to the applicant on 02 August 2018 nor
at the time of the subsequent delivery to the first respondent
on 27
May 2019, nor at the time of the first repairs on 10 September 2019,
nor for the period thereafter, the warranty had not
expired.
[37]
The warranty was therefore in full force and effect during the period
that the cause of action arose.
[38]
[25]
The applicant does not deny that when a letter of demand was
dispatched to the third respondent,
it also received one. It is
therefore evident that the applicant was well aware of the action
envisaged by the first respondent
before litigation started. The
third respondent stated that the warranty was only valid for the
period of twelve (12) months, including
an additional period of
twelve (12) months for a driveline warranty following the delivery of
the cab and chassis. This time period
had already expired for
purposes of enforcing the warranty.
[39]
The applicant was therefore time-barred from attempting to enforce
the warranty due to it having prescribed as calculated from
the date
of delivery of the cab and chassis by the third respondent.
[40]
The joinder of the third respondent as a second third party to the
main action proceedings would be a fruitless and wasteful exercise
as
the warranty did not apply to any of the parties and even if it did,
any of the parties would have been time-barred from relying
on
it.
[41]
Has the applicant
furnished a satisfactory explanation?
[26]
The first question that arises is whether the
applicant has furnished a satisfactory explanation for its
failure to
issue the notice before the close of pleadings? In its heads of
argument, the applicant admitted that it ought to have
reasonably
been aware that the third respondent was the manufacturer of the cab
and chassis and was aware since 12 March 2021 of
the letter of demand
that was dispatched to the third respondent by the first respondent
prior to the summons being issued against
itself.
[42]
In the letter, the replacement of the truck with a new engine and a
warranty of two years was demanded. The applicant does not
deny that
a letter of demand was at the same time dispatched to itself by the
first respondent. During March 2021, after the problems
experienced
by the first respondent came to its attention, it had meetings on two
occasions with the third respondent. The particulars
of claim mention
specifically that the engine was defective. If the applicant ignored
the contents of the letter of demand, surely
the contents of the
summons should have flickered red lights pointing in the direction of
the third respondent.
[27]
Beside the various meetings it had with the third
respondent pertaining to the allegedly defective truck,
the
applicant
first became aware on 10 September 2019 that the truck, and
specifically the gearbox, required repairs.
[43]
This
makes the applicant’s version that it only became aware of the
factory faults to the cab and chassis after the discovery
of
documents on 28 March 2022 after the third respondent had
deliberately and wilfully withheld and prevented the applicant to
coming to know thereof, to be contradictory and false. The
explanation for the late filing of the third party notice is not
satisfactory
at all.
Do
the facts alleged entitle the applicant to succeed at the trial?
[28]
The applicant seeks a full indemnity of any amount
for which it is held liable to the first respondent,
having
regard to the terms of and indemnity as detailed in the warranty
against defectiveness by the third respondent on the supply
of a new
chassis and cab, and if the applicant is held liable to the first
respondent in terms of the first respondent’s
claim as set out
in the particulars of claim. The warranty (styled the UD Trucks
Warranty) covered defects in material and faulty
workmanship existing
at the time of delivery or coming into existence during the warranty
period. The warranty period was for a
period of two years
[44]
and lapsed on 2 August 2020.
[45]
The applicant’s version is that the third respondent attended
to certain repairs under the warranty and that at the time
of the
discovery of the defects the warranty was still valid.
[29]
The applicant stated in its written heads of
argument
[46]
that the third
respondent relied on the terms of the warranty to exclude further
repairs. The point is that the applicant also
relied on the warranty
for the success of its claim against the third respondent as “
the
warranty relied upon is applicable as: The warranty provides that the
Third Respondent undertook to remedy free of charge, those
established defects in material or faulty workmanship existing at the
time of delivery or coming into existence during the warranty
period;”
[47]
The
applicant conceded that the warranty lapsed on 2 August 2020.
[30]
The authorities state that the courts have a wide
discretion and that a lenient approach is called for so
that joinders
are not refused save in the clearest of cases. In
Padogelukkefonds,
[48]
the court granted the application because it discovered an affidavit
deposed to by the second respondent that was filed in the
original
action during its preparation for the case. The court was of the
opinion that the allegations contained therein might
be relevant to
the adjudication of the case as they had a bearing on the negligence
of the second respondent. The counsel for the
second respondent
argued unsuccessfully that it was trite that an applicant in motion
proceedings was confined to the allegations
in its founding papers
and that the Court was accordingly barred from taking any notice of
the allegations in the affidavit. This
case is distinguishable from
the current one.
[31]
In
Pitsiladi,
[49]
it
was stated that where the applicant's case against the third party is
undoubtedly without any merit, the granting of leave to
join the
third party would be pointless and be prejudicial to the plaintiff,
whose claims would be unnecessarily delayed, and to
the proposed
third party, who would unnecessarily become a party to the
proceedings and incur costs.
Conclusion
[32]
I have come to the conclusion that the applicant
has failed to furnish a satisfactory explanation for its
failure to
issue the notice before the close of pleadings and on a conspectus of
all the evidence and facts
that the
applicant’s case is clearly without merit.
The application can therefore not
succeed. In the result I make the following order:
Order:
The
application is dismissed with costs.
MHLAMBI,
J
On
behalf of the plaintiff:
Ms M Thessner
Instructed
by: Rossouws Incorporated
119
President Reitz Avenue
Westdene
Bloemfontein
On
behalf of the respondent:
Adv. M Scheepers
Instructed
by:
Symington & De Kok Attorneys
169B
Nelson Mandela Drive
Westdene
BLOEMFONTEIN
[1]
Page 187 of the indexed papers.
[2]
Page 188 of the indexed papers.
[3]
Page 190 of the indexed papers.
[4]
Page 184 of the indexed papers.
[5]
The financier.
[6]
Paragraph 6 of the Particulars of Claim.
[7]
Paragraph 4.2 of the defendant’s Plea.
[8]
Paragraph 4.3 of the defendant’s Plea.
[9]
Paragraph 6.6 of the Founding Affidavit.
[10]
Paragraph 6.7 of the Founding Affidavit.
[11]
The applicant’s Heads of Argument.
[12]
!984 (2) SA 414 (D) at 424 B-C.
[13]
2002 (4) SA 886 (W)
[14]
1999(2) SA 876 (O).
[15]
2007 (4) SA 478
SE para 12.
[16]
Supra.
[17]
Paragraph 13.
[18]
Pitsiladi, supra.
[19]
Paragraph
4.40 of the Applicant’s Heads of Argument.
[20]
Paragraph 4.41 of the Applicant’s Heads of argument.
[21]
Paragraphs 26 and 27 of the Third Respondent’s Heads of
argument.
[22]
Annexure “AA1” Pages 380-382 of the indexed papers.
[23]
Paragraph
71.
[24]
Paragraph
70 of the Answering Affidavit.
[25]
Paragraph
73 of the Answering Affidavit.
[26]
Paragraph 74 of the Answering Affidavit.
[27]
2010 (4) SA 499 (SCA).
[28]
Paragraph 24 of the judgment.
[29]
Paragraphs 5.4-5.7 of the Founding affidavit.
[30]
Paragraphs 2.4-2.6 of the Founding Affidavit.
[31]
Paragraphs 2.9-2.11 of the Replying Affidavit.
[32]
Paragraph 4.8 of the Replying Affidavit.
[33]
2016(4) SA 121 (CC)
[34]
Paragraph 2.2.3 of the Replying Affidavit.
[35]
Paragraph 2.6 of the Replying Affidavit.
[36]
Paragraph 2.9 of the Replying Affidavit.
[37]
Paragraph 12.2 of the Replying Affidavit.
[38]
Paragraph 12.3 of the Replying Affidavit.
[39]
Paragraph 24 of the Answering Affidavit.
[40]
Paragraph 26 of the Answering Affidavit.
[41]
Paragraph 27 of the Answering Affidavit.
[42]
Paragraphs 4.42 and 4.43 of the Applicant’s Heads of Argument.
[43]
Paragraph 2.2.3 of the Replying Affidavit.
[44]
Page 173 of the indexed papers.
[45]
Paragraph 6.3.1 of the Applicant’s Heads of Argument.
[46]
Paragraph 6.3.5.
[47]
Paragraph 3.2 of the Applicant’s Heads of Argument.
[48]
Supra.
[49]
Supra; Melane vs Santam Insurance Co. Ltd
1962 (4) SA 531
(A)