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[2023] ZAFSHC 228
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Mallett v Firstrand Bank Ltd t/a First National Bank and Others (A128/2022) [2023] ZAFSHC 228 (7 June 2023)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal number:
A128/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES: YES/NO
In the matter between:
WENDELENE
MALLETT
Appellant
and
FIRSTRAND
BANK LTD t/a FIRST NATIONAL BANK
First
Respondent
HOKANANG
COMMUNICATION SOLUTION
Second
Respondent
LOURENS
JACOBS VISSER
Third
Respondent
CORNELIA
JOHANNA ALETTE VISSER
Fourth
Respondent
CORAM:
MATHEBULA, J
et
RANTHO, AJ
HEARD
ON:
23 JANUARY 2023
JUDGMENT
BY:
RANTHO, AJ
DELIVERED
ON:
The judgment was
handed down electronically by circulation to the parties’ legal
representatives by email and release to SAFLII
on 07 JUNE 2023. The
date and time for hand-down is deemed to be 07 JUNE 2023 at 10H00.
Introduction
[1].
This
is an appeal
against the whole judgment and order granted by the Magistrates’
Court for the District of Bloemfontein. It concerns
the summary
judgment granted against the appellant on 26 August 2022.
Facts
[2].
On 19 April 2021, the
respondent
(“the bank”) issued summons against the appellant, who
was cited as the fourth defendant in the
court
a quo
, for payment of the amount of R
189 003.00 plus interest and costs. Summons were issued on the basis
of a suretyship agreement
allegedly signed between the bank and the
appellant, which was annexed to the particulars of claim marked
annexure “A”.
[3].
Following
the
delivery of the appellant’s plea on 11 May 2022, the bank
proceeded to apply for summary judgment, which application was
opposed by the appellant.
[4].
The
relevant
allegations contained in the bank’s particulars of claim were
that:
(a).
On or
about 13 August 2018 and at Bloemfontein it entered into a written
overdraft facility agreement with the first defendant,
Hokanang
Communications Solutions CC (“
Hokanang
”),
in terms of which it advanced money to the amount of R130 000.00 to
the Close Corporation as an overdraft facility;
[1]
(b).
The
second and third defendants signed a Consent in terms of the
provisions of Matrimonial Property Act, 1984 (Act 88 of 1984) and
a
copy of the said consent is annexed to the particulars of claim.
[2]
(c).
In
concluding the agreement, it was represented by its duly
representative and Hokanang was allegedly represented by the
appellant
together with the second and third defendants (“
jointly
referred to as defendants
”);
[3]
(d).
Defendants
allegedly entered into a suretyship agreement with the bank whereby
they bound themselves as sureties and co-principal
debtors jointly
and severally
in
solidum
with Hokanang, for the repayment of the overdraft facility advanced
by the bank;
[4]
(e).
The
suretyship agreement provides for a term that a certificate issued by
any manager of the bank would constitute
prima
facie
proof of the correctness of any amount due and owing by Hokanang to
the bank;
[5]
(f).
The
agreement between the bank and Hokanang was not subject to the
provisions of the National Credit Act 34 of 2005 (“NCA”)
for as far as Hokanang was a juristic person with an annual turnover,
at the time of agreement was concluded, exceeding the threshold
as
defined in the NCA;
[6]
(g).
For
as long as the NCA did not apply to Hokanang as a principal debtor,
the NCA furthermore did not apply to any sureties in terms
of section
4(2) of the NCA;
[7]
(h).
In
abundance of caution and only as far as it may be found to be legally
required, it delivered the notices in terms of section
129 of the NCA
to the Defendants on 1 December 2020.
[8]
[5].
On 11
May 2022
the
appellant filed her plea raising two special plea defences. The first
one was non-compliance with
sections 72(1)
and
129
of the
National
Credit Act
(“NCA”)
[9]
.
The second was that the aforesaid agreement was regulated by the NCA
and because the bank was charging interest thereto, the required
NCR
certificate was not attached. The centrepiece defence was that she
did not sign in any form or was she ever party to overdraft
facilities as alleged by the bank.
Arguments in the court
a quo
[6].
The
bank
contended in the application for summary judgment that the
appellant’s special plea in relation to
section 72(1)of
the NCA
cannot be sustained in law because it was unclear as to what ‘notice’
should have been served on the appellant.
It further stated that it
was not legally obliged to dispatch any notice in terms of
section
72(1)
prior to enforcing its claim against the defendants or to
complete its cause of action.
[10]
[7].
With
regard to the second special plea, the bank contended that the
appellant failed to plead the grounds relied upon for her assertion
and that her plea amounted to bare denial.
[11]
[8].
It
was
also
contended that, notwithstanding the fact that the suretyship
agreement contained a signature in the space allocated for it
next to
her name, the appellant pleaded that she did not sign the said
agreement with Hokanang. It specifically pointed out that:
[12]
(i).
Firstly, the agreement signed by the
appellant was not with Hokanang but rather with the bank, and
(ii).
Secondly, the appellant failed to plead any
reason for her denial.
[9].
In
addition thereto, the bank contended that the remainder of the
apppellant’s plea consisted of bare denials.
[13]
[10].
The
appellant
opposed the summary judgment application on the following
grounds:
[14]
(a).
That the bank failed to comply with
sections 129
and
130
of the NCA. She stated that she never received
the notice issued in terms of
section 129
of the NCA because, at the
time when it was allegedly served on her, she had just relocated to
Bloemfontein and resided at a different
address from the one used for
the said service;
(b).
That the summons was not properly served on
her;
(c).
That she was not in Bloemfontein (i.e.
the
place where the suretyship was
signed at) at the time when the suretyship was signed;
(d).
She did not give consent for the deceased
to sign the suretyship and was not aware of it until receiving the
summons;
(e).
She was never involved in the business of
Hokanang and had no knowledge of the overdraft facility; and
(f).
That the signature appearing on the
suretyship was not hers and her deceased husband’s and
therefore did not know who forged
their signatures on the said
documents.
[11].
It
is common
cause that the appellant was married in community of property to her
deceased husband, who was involved in the dealings
with Hokanang at
some point. Therefore, her supposed liability in respect of the claim
brought by the bank arose from the fact
that she allegedly co-signed
the suretyship agreement with her deceased husband in favour of
Hokanang.
Findings by the court a quo
[12].
The court a quo considered the defences
raised by the appellant. The learned magistrate was well conversant
with the provisions
of the rules and case law dealing with the
application of this nature. Regrettably, the judgment is unclear as
to how he dealt
with the points that were raised by both parties in
the case he was called upon to adjudicate. What is also unclear is
the court
a quo
’s
basis for rejecting the arguments advanced on behalf of the
appellant.
Grounds of appeal
[13].
The appellant launched an appeal against
the whole judgment of the court
a quo
based on the following grounds:
(a).
That the court erred in finding that the
appellant did not raise triable issues in her plea and/or affidavit
resisting summary judgment;
(b).
That the court erred in finding that the
appellant did not fully disclose her defences in her plea and
affidavit resisting summary
judgement;
(c).
That the court erred in not considering the
non-joinder point
in limine
regarding the deceased estate of Clint Mallett, alternatively erred
in dismissing the non-joinder point;
(d).
That the court erred in finding that the
appellant is bound by the terms of the suretyship agreement which she
prima facie
proves she did not sign;
(e).
That the court erred by finding that the
appellant agreed that the certificate of balance may be produced as
prima facie
proof of indebtedness whereas she has
prima
facie
proved that she did not sign the
suretyship agreement;
(f).
That the court erred by not finding that a
factual dispute
was raised by the appellant in that she
prima
facie
proved that she did not sign the
suretyship agreement;
(g).
That the court erred by not referring the
matter to oral evidence or dismissing the application for summary
judgement on the basis
that a factual dispute exists;
(h).
That the court erred by not considering the
visual differences in signatures attached to the appellants affidavit
as annexures D2
– D3 when compared to page 6 of the suretyship
agreement, and furthermore erred by not finding that the signatures
differ;
(i).
That the court erred by finding that the
main reason why the appellant denies signing that agreement was
because she was not in
Bloemfontein at the time when it was signed
whereas this was ancillary to the main defence of the appellant
(which is that she
did not sign the agreement, period);
(j).
That the court erred by finding that the
appellant did no more than make an assertion that there was a forgery
of signatures when
the appellant proved that her signature had been
forged by putting up evidence of her signature to be juxtaposed with
the signature
to be found on the suretyship agreement;
(k).
That the court erred by not considering
that the appellant had no knowledge of the main contract and
suretyship agreement in order
to put evidence before court and has no
knowledge of the forgery of her signature, save to state that she did
not sign the suretyship
agreement;
(l).
That the court erred in not considering the
fact that there are witnesses, who signed next to the alleged
signatures of the appellant
and the deceased, who may be called as
witnesses, and furthermore erred by not calling for those witnesses
to give evidence;
(m).
That the court erred by not considering
that the plaintiff failed to prove that consent was provided, in
terms of
Section 15(2)(h)
of the
Matrimonial Property Act of 1984
, by
either the appellant or the deceased and furthermore by finding that
the plaintiff had made out a proper case despite not having
any proof
that the appellant or the deceased signed the consent form as
required by the plaintiff’s own contract;
(n).
That the court erred by finding that the
appellant did not dispute the certificate of balance, whereas the
appellant disputed same
by denying same in her plea and affidavit;
(o).
That the court erred by placing emphasis on
the certificate of balance which was not attached to the particulars
of claim at all;
(p).
That the court erred by not considering
that the plaintiff failed to prove that it complied with clauses 5,
6, 7 and 8 of the terms
and conditions applicable to the overdraft
facility, alternatively the court erred by finding that the plaintiff
complied with
the abovementioned clauses;
(q).
That the court erred by not considering
that the plaintiff failed to prove proper cancellation of the
overdraft agreement in light
of the lack of evidence as well as
clauses 5, 6, 7 and 8 of the terms and conditions applicable to the
overdraft facility;
(r).
That the court erred by not considering
that the plaintiff failed to bring the
section 129
notice to the
attention of the appellant;
(s).
That the court erred by not invoking its
inherent discretion to dismiss summary judgement given the particular
circumstances of
the matter;
(t).
That the court erred by finding that the
appellant is liable in the amount of R189 003.00, together with
interest as ordered and
costs, whereas the application should have
been dismissed with costs.
Legal
principles applicable to summary judgment
[14].
Rule 14
of Rules Regulating the
Conduct of the Proceedings of the Magistrates' Courts stipulates
that:
“
(1).
The plaintiff may, after the defendant has served a plea, apply to
court for summary judgment on each of
such claims in the summons as
is only—
(a).
on a liquid document;
(b).
for a liquidated amount in money;…
together with any
claim for interest and costs.
(2) …
(a)
Within 15 days
after the date of service of the plea, the plaintiff shall deliver a
notice of application for summary judgment,
together with an
affidavit made by the plaintiff, or by any other person who can swear
positively to the facts.
(b)
The plaintiff
shall, in the affidavit referred to in subrule 2(a), verify the cause
of action, the amount claimed, if any, identify
any point of law
relied upon, state the facts upon which the plaintiff's claim is
based, and explain briefly why the defence as
pleaded, does not raise
any issue for trial.
(c)
If the claim is
founded on a liquid document, a copy of the document shall be annexed
to such affidavit, and the notice of application
for summary judgment
shall state that the application will be set down for hearing on a
stated day, not being less than 15 days
from the date of the delivery
thereof.
(3)
The defendant may-
(b)
satisfy the court by affidavit (which shall be delivered five days
before the day on which the
application is to be heard), or, with the
leave of the court, by oral evidence of such defendant, or of any
other person who can
swear positively to the fact that the defendant
has a bona fide defence to the action, and such affidavit or evidence
shall fully
disclose the nature, grounds of the defence and the
material facts relied upon therefor…”
[15].
The
procedure provided by the rules relating to summary judgment has
always been regarded as one with a limited objective, that
is, to
enable a plaintiff with a clear case to obtain swift enforcement of a
claim against a defendant who has no real defence
to that claim.
[15]
[16].
The
courts have stressed the fact that the remedy provided by summary
judgment rule is of extraordinary and drastic ‘nature’
which is ‘very stringent’ in that it closes the door to
the defendant, and that ‘the grant of the remedy is based
on
the supposition that the plaintiff’s case is unimpeachable and
that the defendant’s defence is bogus or bad in law’.
[16]
It is only where the court has no reasonable doubt that the plaintiff
is entitled to judgment as prayed, that the plaintiff has
an
answerable case, that summary judgment will be granted.
[17]
Whether to interefe with the
court
a quo
’s decision?
[17].
It is
trite that when it appears that the lower court had not exercised its
discretion judicially, or that it had been influenced
by wrong
principles or misdirection on the facts, or that it had reached a
decision which in the result could not reasonably have
been made by a
court properly directing itself to all the relevant facts and
principles, a court of appeal may interfere with the
decision of the
lower court.
[18]
[18].
As already pointed out above, the three
main defences raised by the appellant in her plea concerned the
issues of alleged non-compliance
with the NCA, her denial of being
present when the suretyship was signed as well as having any
knowledge of such agreement.
[19].
The
court
a
quo
did not deal with the issue of non-compliance with the NCA on the
basis that the appellant abandoned the said issue during the
hearing
of summary judgment application.
[19]
I am, however, of the view that the issue of non-compliance with
section 129
the NCA is of no substance to the issues at hand. This is
so, because the appellant admitted in her affidavit that a copy of
section 129
notice annexed to the bank’s particulars of claim
bore the same address as the one she used as her
domicilium
prior to relocating to Johannesburg.
[20]
[20].
Having
considered the facts presented before it during the hearing of the
application for summary judgment, the court
a
quo
came to the conclusion that the appellant set out an incomplete
defence lacking of particularity.
[21]
[21].
In
paragraph 16 of the judgment, the learned Magistrate held that the
appellant ‘
danced
around
’
the issue as to whether, objectively on the facts of this matter, she
was liable or not. It then concluded that the certificate
of balance
was not disputed.
[22]
However, the court
a
quo
ignored the fact that the appellant denied having signed or formed
part of the agreement in the first place. By concluding that
the
certificate of balance in relation to the agreement was not
disputed,
[23]
the court
a
quo
misdirected itself and came to a conclusion that was not informed by
the facts and/or evidence.
[22].
What remains to be examined is whether
appellant’s denial of signing the suretyship agreement and her
alleged lack of knowledge
pertaining to its existence constitute
triable issues that should have militated against the granting of
summary judgment in favour
of the bank.
[23].
In
Tumileng
Trading CC v National Security and Fire (Pty) Ltd
[24]
the court
had the following to say:
“
[23]
It seems
to me, however, that the exercise is likely to be futile in all cases
other than those in which the pleaded defence is
a bald denial. This
is because a court seized of a summary judgment application is not
charged with determining the substantive
merit of a defence, nor with
determining its prospects of success. It is concerned only with an
assessment of whether the pleaded
defence is genuinely advanced, as
opposed to a sham put up for purposes of obtaining delay. A court
engaged in that exercise is
not going to be willing to become
involved in determining disputes of fact on the merits of the
principal case. As the current
applications illustrate, the exercise
is likely therefore to conduce to argumentative affidavits, setting
forth as averments assertions
that could more appropriately be
addressed as submissions by counsel from the bar. In other words, it
is likely to lead to unnecessarily
lengthy supporting affidavits,
dealing more with matters for argument than matters of fact.
Content of the opposing affidavit
...
As has always been the position, the opposing affidavit must
"disclose fully the nature and grounds of the defence and
the
material facts relied upon therefor".
The
purpose
of the opposing affidavit also remains, as historically the case, to
demonstrate that the defendant "has a
bona
fide
defence
to the action". There is thus no substantive change in the
nature of the "burden", if that is what it is,
placed on a
defendant in terms of the procedure. However, the broader form of
supporting affidavit that is contemplated in terms
of the amended
rule 32(2)(b)
, will in some cases require more of a defendant in
respect of the content of its opposing affidavit than was the case in
the pre-amendment
regime, for the defendant will be expected to
engage with the plaintiff's averments concerning the pleaded defence.
In this regard
I anticipate that we shall also see much argumentative
matter in the opposing affidavits under the new regime, for argument
will
be met with counter-argument.”
[24].
As
stated in
Maharaj
v
Barclays National Bank Ltd
[25]
the remedy afforded by summary judgment should only be resorted to
and accorded only where the plaintiff can establish his claim
clearly
and the defendant fails to set up a
bona
fide
defence.
[25].
The
bank submitted correctly that, in summary judgment proceedings, it is
insufficient for a defendant to merely allege that she
has no
knowledge of the plaintiff’s allegations or that she regards
those allegations with suspicion.
[26]
[26].
The
bank also raised an issue that the appellant’s defence of her
signature having been forged was dealt with in the opposing
affidavit
and not in the plea.
[27]
What cannot be disputed, however, is the fact that
,
the appellant alleged in paragraph 13.2 of her plea that ‘
she
did not sign any document relating to Hokanang and that Annexure D to
the particulars of claim (suretyship) is denied
’.
This fact was conceded by the responded too.
[28]
[27].
Furthermore,
the
appellant pointed the court
a
quo
to the fact that the signature affixed to the opposing affidavit and
the one she annexed to her affidavit bore similarities and
strikingly
in contrast with the one appearing on the documents annexed to the
particulars of claim. She further placed evidence
before the court
a
quo
,
disputing the signature appearing on the suretyship agreement annexed
to the particulars of claim.
[29]
This
should have sufficed for the court
a
quo
to refuse the summary judgment in order to allow the appellant to
produce extrinsic evidence in rebuttal thereto before a trial
court.
[28].
In my view, the fact that the appellant
made no mention of forgery and/or fraud in her plea is neither here
nor there because she
specifically denied having signed the agreement
or ever being a party to it in the first place.
[29].
It
has been held by the court in
Mowchenson
and Mowchenson v Mercantile Acceptance Corporation of SA Ltd
[30]
that if there is nothing inherently incredible in the defendant’s
answer that which, if proved, would support a defence that
is good in
law, the court would be obliged to dismiss the application and to
give the defendant leave to defend the action.
[30].
In
dismissing the appellant’s point of denying the signature, the
court
a
quo
relied on
Kgotlakgomang
v Joubert
[31]
and
put emphasis on the fact that the assertion made by appellant about
forgery of her signature was not alleged in both the plea
and
opposing affidavit.
[32]
The distinct nature of the facts involved in
Kgotlakgomang
and the present case was dealt with aptly in the appellant’s
heads of argument and thus need not to be regurgitated.
[33]
[31].
In addition thereto, the court
a
quo
ignored the wording used by the
appellant in paragraph 13.2 of her plea when she alleged that she did
not sign any document relating
to the First Defendant and Annexure
“D” to the particulars of claim is denied, as the
‘
purported signature’
on the suretyship is not hers. This in itself points to the fact that
the appellant attributes the signature appearing on the agreement
to
someone else, other than herself or her late husband. Whether the
alleged signature was achieved by means of forgery or fraud
was
irrelevant for the purpose of the summary judgment application.
[32].
The
court
a
quo
also placed emphasis on the fact that the appellant abandoned the
submission that she was not in Bloemfontein during the time when
the
agreement was allegedly signed.
[34]
It would therefore appear as though the learned Magistrate took a
view that, by not denying to have been in Bloemfontein when the
agreement was allegedly signed, the appellant abandoned her entire
defence about the signature. This conclusion by the court
a
quo
cannot
be correct because it is clear from reading paragraph 6 of the
appellant’s plea what her defence is. Apart from denying
being
in Bloemfontein when the agreement was signed, she also denied that
she had anything to do with it whatsoever.
[35]
This constitutes a clear bona fide defence to the action.
[33].
I
therefore find that the apppellant’s denial of the signature on
the agreement raises a triable issue that requires to be
properly
ventilated in a trial court.
[34].
The appellant further raised a point that
the bank failed to provide sufficient evidence relating to the
consent required in terms
of the
Matrimonial Property Act 88 of 1984
.
The bank correctly submitted that that the appellant did not raise
this issue in her plea. However, this is an issue that emerged
from
undisputed facts before this Court.
[35].
The
bank alleges in its particulars of claim that, during the signing of
the surety agreement, the second and third defendants signed
a form
confirming their marriage to be in community of property. In support
thereof, the bank annexed to its particulars of claim
confirmation of
Marriages in Community of Property Form signed by the said
defendants.
[36]
No such allegations are made in relation to the appellant and her
deceased husband.
[36].
Relying
on an earlier decision on the issue of the raising of point of law on
appeal, the Supreme Court of Appeal (“SCA”)
had the
following to
say
in
Nwafor
v Minister of Home Affairs
:
[37]
“
[29]
The law and principles applicable to the raising of points of law on
appeal are trite. The position was aptly described
by Wallis JA
in Minister of Justice and Constitutional Development and Others
v Southern African Litigation Centre and
Others as follows:
‘
That
is not to say that merely because the High Court determines an issue
of public importance it must grant leave to appeal. The
merits of the
appeal remain vitally important and will often be decisive.
Furthermore, where the purpose of the appeal is to raise
fresh
arguments that have not been canvassed before the High Court,
consideration must be given to whether the interests of
justice
favour the grant of the leave to appeal. It has frequently been said
by the Constitutional Court that it is undesirable
for it as the
highest court of appeal in South Africa to be asked to decide legal
issues as a court of both first and last instance.
That is equally
true before this Court. But there is another consideration.
It
is that if a point of law emerges from the undisputed facts before
the court it is undesirable that the case be determined without
considering that point of law
. The
reason is that it may lead to the case being decided on the basis of
legal error on the part of one of the parties in failing
to identify
and raise the point at an appropriate stage. But the court must be
satisfied that the point truly emerges on the papers,
that the facts
relevant to the legal point have been fully canvassed and that no
prejudice will be occasioned to the other parties
by permitting the
point to be raised and argued’.” (own emphasis”)
[37].
In applying the principle enunciated by the
SCA in
Nwafor
,
I am of the view that the point raised by the appellant in relation
to Matrimonial Consent should be considered on the basis of
the
following:
(a).
it is
a point of law stemming from the undisputed facts before the
court;
[38]
(b).
the point was canvassed fully during the
arguments before the court
a quo
and this Court; and
(c).
no
prejudice will be occasioned to the
bank
because it will have an opportunity to deal with the said issue fully
during trial.
[38].
Having considered the relevant principles
outlined above and the facts presented before this Court, I find that
the appellant raises
the issues that are triable and thus this appeal
should succeed.
Costs
[39].
The general rule is that the costs should follow the result,
being the successful litigant. I find no reason to deviate from this
general rule in the circumstances of this matter.
Order
[40].
Accordingly, I propose the following order:
1.
The appeal is upheld with costs.
M. RANTHO, AJ
I concur and it is so ordered,
M.A.
MATHEBULA, J
APPEARANCES:
On
behalf of appellant:
Adv.
K. Naidoo
Instructed
by:
Salley’s
Attorneys, Bloemfontein.
On
behalf of respondent:
Adv
H.J. van der Merwe
Instructed
by:
Jay
Mothobi Incorporated, Bloemfontein
[1]
Index
page 14:
para
6 of the POC.
[2]
Index
page 14:
para
7 of the POC.
[3]
Para
8 of the POC:
Index
page 14
[4]
Para 15.1 of POC:
Index
page 17
[5]
Para 15.2 of POC:
Index
page 18
[6]
Para 15.3 of POC:
Index
page 18
[7]
Para 15.4 of POC
:
Index page 18
[8]
Para
15.5 of POC
Index
page 18
[9]
Paras 1 and 2: Fourth defendant’s plea
:
Index page 71:
[10]
FA to summary judgment: Index pages 8 to 9 at paras 5.2 to 5.2.2.
[11]
FA to summary judgment: Index pages 10 to 11 at paras 6.1 to 6.3.2.
[12]
FA to summary judgment: Index page 11 at paras 7.1 to 7.1.2.
[13]
FA to summary judgment: Index page 11 at para 8.
[14]
Affidavit opposing summary judgment: Index pages 25 to 28 at paras 3
to 6.5.
[15]
Herbstein & van Winsen: the Civil Practice of the High Courts of
South Africa (5
th
Ed), Vol. 1 on pp 516-517.
[16]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A); Tesven CC v SA
Bank of Athens 2000 (1) SA 268 (A).
[17]
Edwards v Menezes
1973 (1) SA 299
(NC) at 304 -5.
[18]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others (CCT10/99) [1999] ZACC 17; 2000
(2) SA 1; 2000
(1) BCLR 39 (2 December 1999) at para 11;
See
also
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Limited and another
(CCT198/14)
[2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (26
June 2015) at para 88.
[19]
Index – Notice of Appeal: page 12 at para 5.1 of the judgment.
[20]
Index: p 25 to 26 : Para 3.4: Opposing affidavit.
[21]
Index-
Notice of Appeal: page 15 at
para
15 of the judgment.
[22]
Index - Notice of Appeal: page 16 at para 16 of the judgment.
[23]
See also
Index-
Notice of Appeal:
page 3 at para 3 of the judgment.
[24]
2020
(6) SA 624
(WCC) at paras 23 to 24.
[25]
Supra
at
para 18.
[26]
Para
5.6 of respondent’s heads of argument.
[27]
Para 8.1 of respondent’s heads
of
argument
.
[28]
Para 8.2 of respondent’s heads
of
argument
[29]
Index
pages 27 at para 6.1 of
opposing
affidavit
and
pp 48 – 49:
Annexure
“D1” to “D2”.
[30]
1959 (3) SA 362 (W).
[31]
[2014] ZAFSHC 143
(4 September 2014).
[32]
Index
– Notice of Appeal:
pages
16 – 19 at paras20 - 22 of judgment.
[33]
Appellant’s heads of argument at para 12.1 – 12.7.
[34]
Index – Notice of Appeal: pages 12 and 16 at paras 6 and 17 of
judgment.
[35]
See also respondent’s heads of argument at para 8.2.
[36]
Para 7 of the POC: Index page 14.
[37]
(1363/2019) [2021] ZACSA 58 (12 MAY 2021).
[38]
Index: page14: POC at para 7.