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[2023] ZAKZPHC 118
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RML Lighting (Pty) Ltd v Vangiflash (Pty) Ltd (13682/22) [2023] ZAKZPHC 118 (19 October 2023)
FLYNOTES:
CIVIL PROCEDURE – Power of attorney – Challenge to
authority –
Challenges
to authority to be raised and dealt with under Rule 7 and not by
way of application papers – Dicta in ANC
Umvoti apply
whether the challenge to authority is substantive or whether in
the nature of technical challenge which can
be met merely by
production of power of attorney – Nature of challenge is not
basis upon which ANC Umvoti can be avoided
– Uniform Rule
7(1).
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
KWAZULU-NATAL,
PIETERMARITZBURG
CASE NUMBER: 13682/22
RML
LIGHTING (PTY) LTD
APPLICANT
and
VANGIFLASH (PTY) LTD
RESPONDENT
JUDGMENT
ANNANDALE A.J:
[1]
The
applicant
seeks to eject the respondent from commercial premises at 2[...]
A[...] Avenue, Springfield Park. The applicant owns the
premises from
which the respondent runs the business it bought from the applicant
some years ago. The parties concluded a written
lease which the
applicant cancelled after the respondent fell into arrears with its
rental obligations in April 2021 and failed
to remedy its breach. As
the premises are commercial property, the Prevention of Illegal
Eviction and Unlawful Occupation of Land
Act 19 of 1998 does not
apply.
[1]
[2]
Beyond bald denials of non-payment of rental and
receipt of the notice of cancellation, the respondent raises no
challenge to the
substantive merits of the eviction application, and
at the hearing expressly abandoned other technical grounds of
opposition raised
in its answering affidavit.
[3]
That, one might think, would be the end of the
matter. But it is not. The respondent challenges the applicant’s
authority
to institute the present proceedings and instruct its
attorneys to act (the authority challenge). It asserts that the
resolution
authorising the institution of proceedings and mandating
the applicant’s attorneys is invalid because one of the
applicant’s
two directors was improperly excluded from the
directors’ meeting at which the resolution was passed.
[4]
The respondent relies on Uniform rule 7(1) which
currently reads as follows:-
‘
Power
of attorney
Subject
to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfies the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application.’
[5]
The respondent did not issue a notice in terms of
rule 7(1). It raised the authority challenge in its answering
affidavit and did
so well outside the ten-day period envisaged by the
rule. The applicant submits that this is fatal as challenges to
authority must
be pursued in terms of the rule and cannot be
ventilated in the application. The respondent, on the other hand,
contends
that a notice under rule 7(1) is merely one of the
ways an authority challenge can be mounted, and as the rule itself
does not
prescribe a procedure, nothing precludes the issue of
authority being raised squarely in an answering affidavit with
reference
to the rule.
[6]
The issue in this application is thus whether the
authority challenge falls to be disregarded because of the manner in
which it
was raised. That issue arises in the following context.
The factual and legal
context of the authority challenge
[7]
The applicant has only two directors and
shareholders, Mr Richard Longford and Ms Tracy Robinson. It is common
cause that until
at least 17 July 2022 Ms Robinson was also the sole
shareholder and director of the respondent. On that date she resigned
as director
and appointed Mr Ahmed, until then the respondent’s
accountant, as its sole director, and sold her shares to him.
[8]
The respondent’s deponents, Mr Ahmed and Ms
Robinson, did not explain the reason for the sale and change in
directorship,
adduce the agreements they concluded., or disclose the
consideration, if any, paid by Mr Ahmed for the shares.
[9]
A printout from the Companies and Intellectual
Property Commission (CIPC) reveals that there are 1 000 issued shares
in the respondent.
Under cover of an email dated 25 July 2022, Ms
Robinson transmitted to Mr Longford a share certificate which
reflects Mr Ahmed
as the holder of 120 of those shares.
[10]
The date of Ms Robinson’s resignation and
the share sale is significant because it occurred less than a week
after she received
notice of a directors’ meeting to be held on
26 July 2022 to consider, and if deemed fit, pass an ordinary
resolution (the
proposed resolution) in the following terms:-
‘
1.
Hadar Inc. and its Attorneys are authorised to do or cause to be
done whatsoever shall
be requisite as fully and
effectively, for all intents and purposes, to recover all debts owed
by Vangiflash to the Company; and
to eject Vangiflash from the
premises; and
2.
Ratify all steps/actions already taken by Hadar Inc. and its
Attorneys to recover all amounts owed by Vangiflash,
which
includes but is not limited to, the action instituted out of the
Durban High Court under case number D5381/2022.’
[11]
The notice of the meeting raised Ms Robinson’s
conflict in respect of the subject matter to be discussed. It
recorded that
as the sole director of the respondent she had unduly
enriched that company at the applicant’s expense by failing to
take
action against the respondent or assisting her co-director to
take any action against the respondent for its failure to pay amounts
owing to the applicant in respect not only of arrear rental,
but also the payment of the purchase price of the applicant’s
business, which had been sold to the respondent as a going concern in
2013.
[12]
The notice of the meeting was sent under cover of
a letter which drew Ms Robinson’s attention to section 75 of
the Companies
Act, 71 of 2008 (the Act) which requires
directors to disclose any personal financial interest in any matter
to be discussed
at a directors’ meeting before the matter is
considered and then recuse themselves from the meeting.
[13]
Section 75(5) of the Act is central to the
authority challenge. It reads in relevant part as follows:-
‘
If
a director of a company …..has a personal financial interest
in respect of a
matter
to be considered at a meeting of the board, or knows that a related
person
[2]
has a personal
financial interest in the matter, the director-
(a) must
disclose the interest and its general nature before the matter is
considered at the meeting;
(b) must
disclose to the meeting any material information relating to the
matter, and known to the director;
(c) may
disclose any observations or pertinent insights relating to the
matter if requested to do so by the other
directors;
(d) if
present at the meeting, must leave the meeting immediately after
making any disclosure contemplated in paragraph
(b) or (c);
(e) must not
take part in the consideration of the matter, except to the extent
contemplated in paragraphs (b) and (c);
(f)
while absent from the meeting in terms of this subsection-
(i)
is to be regarded as being present at the meeting for the purpose
of
determining whether sufficient directors are present to constitute
the meeting; and
(ii)
is not to be regarded as being present at the meeting for the purpose
of determining whether a resolution has sufficient support to be
adopted.’
(footnote added)
[14]
Ms Robinson attended the meeting which was held on
a virtual platform on 26 July 2022. The minutes record that she
refused to recuse
herself. She contended that her resignation and the
sale of her shares in the respondent removed the conflict so she was
entitled
to be present throughout the meeting and to vote on the
proposed resolution.
[15]
Mr Longford and two attorneys from Hadar Inc (who
had performed work for the applicant in the past and were present at
the meeting)
took issue with Ms Robinson’s stance both because
the share certificate she had provided read with the CIPC records
revealed
that she had not disposed of all her shares, and because a
CIPC printout procured on the day of the meeting still
reflected
Ms Robinson as the sole director of the respondent. She was
therefore required to leave the meeting and precluded from voting on
the proposed resolutions.
[16]
Before she left however, she was asked to state
how she would have voted if she had been allowed to do so. She
indicated that she
would have voted against the proposed resolution.
When asked the reasons for her stance, Ms Robinson’s response
was that
Mr Longford essentially wanted to close the respondent down,
and if he did so he would have no prospect of recovering any money.
Her verbatim response as recorded in the minutes is: ‘so then
you are going to close
us
down’ (emphasis in the original).
[17]
Mr Longford states that after Ms Robinson exited
the meeting he voted in favour of the proposed resolution and signed
it. The effect
of section 75(5)(f) of the Act is that a simple
majority of those eligible to vote is sufficient to pass an ordinary
resolution.
As the applicant has only two directors and Ms Robinson
was
not to be regarded as being present at the meeting for the
purpose of determining whether a resolution had sufficient support to
be adopted, the requisite simple majority required for the passage of
a valid resolution would have been achieved by Mr Longford’s
vote alone, if Ms Robinson had been correctly excluded.
[18]
There is something of a disjunct between the
minutes and the signed resolution. The minutes record that ‘Mr
Longford voted
in favour of passing the resolution to try and recover
the money on behalf of the Company.’ The respondent submits
that this
means that only the resolution relating to the pending debt
recovery was passed, not the resolution relating to the respondent’s
eviction.
[19]
In my view, nothing turns on these differences.
The minutes must be read in context. The notice of the meeting
referred to a proposed
resolution in the singular, although it had
two parts. The minutes reveal that the proposed resolution was read
out in full before
it was a discussed and put to the vote. The
resolution which was signed by Mr Longford on the same day as the
meeting is identical
to the proposed resolution and deals with both
the existing recovery and the proposed ejectment proceedings. In
addition, loss
of occupation of the premises from which the
respondent’s business is run is consistent with Ms Robinson’s
fears that
the resolutions would close the respondent down.
[20]
A signed copy of the resolution so passed was sent
to the respondent’s attorneys in August 2022, a month before a
letter of
demand and a subsequent notice cancelling the lease were
sent to the respondent. The present proceedings were instituted in
October
2022. In its answering affidavit deposed to on 13 January
2023, the respondent indicated that Ms Robinson intended instituting
proceedings to set the resolution aside and that the court would be
finished with a copy of those application papers when they became
available. No explanation was proffered for why those proceedings had
not yet been brought. I was informed by both counsel that
Ms Robinson
instituted proceedings to set aside the resolution out of the Durban
High Court in the first half of July 2023, some
two weeks prior to
this matter being heard as an opposed motion.
[21]
At the commencement of the hearing, Mr Temlett,
who appeared for the respondent, applied from the bar for a
postponement of this
application pending the finalisation of the
proceedings relating to the resolution. Mr Temlett was commendably
frank about the
difficulties posed by moving the application in this
fashion. Without a substantive application counsel was unable to deal
with
matters such as: why the application was not launched
immediately the resolution came to Ms Robinson’s attention, or
at the
very least at the same time the answering affidavit was filed,
why it was launched in a different seat of the High Court than that
in which the eviction proceedings were pending, on what basis it was
brought, its prospects of success and the timeframes within
it which
it was likely to be finalised. Quite correctly, Mr Temlett did not
attempt to address these matters by testifying from
the bar. I
refused the application, as it was not properly motivated, and could
not be, given the form in which it was brought.
The authority
challenge
[22]
The
founding affidavit in the eviction application dealt only with the
conclusion of the lease, the respondent’s breaches,
and the
applicant’s compliance with the contractual notice provisions.
The authority challenge was mounted in answer and
therefore dealt
with by the applicant only in the reply. The respondent did not
deliver an additional affidavit to deal with the
matter raised in
reply, although it could have sought leave to do so.
[3]
[23]
There is there is thus no evidence to controvert
the printout from CIPC that there are 1 000 issued shares in the
respondent. Ms
Robinson’s version is that she sold 120 of those
shares to Mr Ahmed. On the face of it therefore, accepting her
resignation
and share sale as alleged, Ms Robinson still has an
interest in the respondent and was correctly excluded from the
meeting, and
the authority challenge is therefore without merit.
[24]
I
do not however make a finding in this regard, as binding authority in
this division precludes me from considering the authority
challenge
in the form in which it has been brought. In
ANC
Umvoti Council Caucus and others v Umvoti Municipality
2010
(3) SA 31
(KZP)
(ANC
Umvoti),
a
full court of this division held that challenges to authority had to
be raised and dealt with under the rule and not by way of
the
application papers.
[4]
[25]
Counsel for the respondent sought to
distinguish
ANC Umvoti
on
three bases. First, that the rationale in
ANC
Umvoti
did not apply to substantive
challenges to authority which could not be cured by the production of
a power of attorney. Here, the
challenge to the validity of the
resolution authorising proceedings and mandating the applicant’s
attorneys would affect
the validity of any power of attorney
produced on the strength of that resolution. Second, in
ANC
Umvoti
authority had not been
challenged in terms of rule 7. Third, in cases where rule 7 is
invoked, the rule does not prescribe the procedure
by which authority
must be challenged, and it is appropriate for a substantive challenge
to authority to be raised in an answering
affidavit and dealt with on
the papers.
[26]
Whilst there may be much which could be said for
the pragmatism of the approach suggested by counsel for the
respondent, the legal
validity of his submissions needs to be
considered in the light of the purpose and history of rule 7 and the
judgment of
ANC Umvoti
as
a whole.
[27]
Rule 7 assumed its current form following an
amendment in 1987.
Prior to its amendment rule 7(1) read as
follows:
'Before summons is issued
in any action at the instance of the plaintiff's attorney, the
attorney shall file with the registrar
a power of attorney to sue.
Such power of attorney shall state generally the nature of the
particular action authorised to be instituted,
the nature of the
relief to be claimed therein and the names of the party to be sued.'
[28]
The
original object of rule 7 was to have the mandate of a party’s
attorney established beyond question.
[5]
This served to ‘
prevent
a person whose name is being used throughout the process from
afterwards repudiating the process altogether and saying he
had given
no authority, and to prevent persons bringing an action in the name
of a person who never authorized it’.
[6]
[29]
Before
its amendment, the rule applied only to actions, as in
motion
proceedings there is an affidavit signed by the applicant or someone
on their behalf whose authority appears from the papers.
[7]
[30]
Given
these origins, Jansen J in
Allied
Workers' Union and Others v De Klerk NO and Others
1990
(3) SA 425
(
De
Klerk
)
held
that the type of authority contemplated by rule 7 is the type of
power given by a client to their attorney authorising them
to
institute or defend legal proceedings on the client’s behalf,
and does not contemplate the general authority by one person
to
another to represent them in legal proceedings which must be
established by evidence.
[8]
[31]
The
approach of the court in
De
Klerk
drew
on the longstanding line of authority in cases such as
Mall
(Cape) (Pty) Ltd v Merino
Ko-operasie
Bpk
1957
(2) SA 347 (C)
(
Merino
Ko-operasie)
which
held that
where
the applicant in motion proceedings was an
artificial
person,
evidence
was required in the founding affidavit that ‘
the
applicant
has
duly resolved to institute the proceedings and that the proceedings
are instituted at its instance.’
[9]
[32]
The
amendment of rule 7
did away with the need to file a power of attorney in all actions,
but it expanded the reach of the rule to
motion proceedings. The
amended rule employs broader language than its predecessor, as it no
longer refers only to attorneys but
to ‘the authority of anyone
acting on behalf of a party’.
[33]
De Klerk
held
that despite
these changes, the ambit of
the rule remains the same because :-
‘
it
could not have been contemplated by the lawgiver that a refutation by
a respondent as to the existence of general authority to
act could be
met by the filing of an unsworn piece of paper. Rule 7(1) is, in
essence, merely a means of achieving production of
the ordinary power
of attorney in order to establish the authority of an
attorney to act for his client. It may be called
for simply by notice
and without an evidentiary challenge to such authority.
[10]
[34]
The
full
court in
ANC
Umovti
however
took a contrary view. It attributed significance to the change in
language brought about by the amendment,
[11]
and held that
the
amended rule was intended to apply to all types of challenges to
authority.
[12]
In consequence,
it held that ‘whether or not the litigation has been properly
authorised by the artificial person named as
the litigant should not
be dealt with by means of evidence lead in the application. If
clarity is required, it should be obtained
by means of rule
7(1)’.
[13]
[35]
It is therefore clear that the
dicta
in
ANC
Umvoti
apply
whether the challenge to authority is, as here, substantive, or
whether it is in the nature of a technical challenge which
can be met
merely by production of a power of attorney. The nature of the
challenge is therefore not a basis upon which
ANC
Umvoti
can be avoided.
[36]
I
am alive to the fact that reading rule 7 as having such breadth of
application may be seen to somewhat undermine the rationale
of the
rule in amended form which
is
to avoid a ‘costly and wasteful investigation, which normally
leads to the conclusion that the application was indeed
authorised’.
[14]
The
full court in
ANC
Umvoti
drew
on that rationale in finding that if clarity on authorisation was
required it should be obtained by means of rule 7(1), since
it was a
procedure that freed an applicant from having to produce proof of
what may not be in issue, and saved ‘an inordinate
waste of
time and expense involved in attaching resolutions, delegations and
substitutions to applications’.
[15]
[37]
Where
the challenge to authority is in the nature of a technical objection,
it can usually be easily addressed by the production
of a power of
attorney or a company resolution. Where however, as here, the
challenge is substantive, it will need to be motivated
and met on
affidavit, because it cannot, by its nature, be refuted ‘merely
by the filing of an unsworn piece of paper’.
[16]
The requirement that even such challenges be pursued outside of the
application in respect of which they are raised will almost
inevitably lead to two sets of opposed proceedings,
[17]
with the application relating to authority needing to be
finalised before the main application could proceed, with all the
implications for costs and delay that entails. Be that as it may,
there is no means of reading down the breadth of the clear language
of
ANC
Umvoti
in
this regard.
[38]
The respondent highlights that the challengers in
ANC Umvoti
did
not invoke rule 7 by name or by issuing a notice in terms of the
rule, whereas, in the present case, the respondent specifically
relied on rule 7 and laid an evidential basis for the authority
challenge in its answering affidavit. Counsel submitted that this
serves to make
ANC Umvoti
distinguishable.
[39]
It is so that rule 7 was not relied on in
ANC
Umvoti
, but attempting to distinguish
it on that basis would be to put form above substance and ignore the
gravamen of the judgment.
[40]
In
ANC
Umvoti
,
the appellants asserted that they had an election whether to employ
rule 7. They had not done so
[18]
and sought instead to challenge the authority of the respondent to
institute proceedings in the court below on the
Merino
Ko-operasie
and
De
Klerk
lines
of authority
discussed
in paragraphs [30] and [31] above.
[19]
[41]
The
substantive authority challenge in
De
Klerk
was
raised in the answering affidavit. Jansen J rejected the argument
that this was impermissible as rule 7 had to be employed and
upheld
the challenge on the evidence.
ANC
Umvoti
held
that the legal position articulated in
Merino
Ko-Operasie
had
changed with the amendment of the rule and doubted the correctness of
De
Klerk
.
[20]
This was the basis on which the full court held that authority need
not be proved on the papers and that ‘whether or not
the
litigation has been properly authorised by the artificial person
named as the litigant should not be dealt with by means of
evidence
lead in the application.’
[21]
[42]
That
finding of the full court also puts paid to the last basis upon which
the respondent seeks to sustain its authority challenge
despite
the form in which it has been mounted, which is that the rule itself
does not prescribe a procedure by which such challenges
must be
made.
[22]
The respondent’s
reliance on statements in Erasmus
Superior
Court Practice
,
[23]
that authority challenges can be dealt with in an answering affidavit
are misplaced in the light of the unequivocal findings of
ANC
Umvoti
that
this is impermissible. The case from this division to which the
authors refer and which could serve as authority for that
proposition
[24]
predates the
amendment of the rule and was therefore implicitly overruled by
ANC
Umvoti
.
[43]
It follows that the manner in which the respondent
has chosen to raise its authority challenge is fatal. The respondent
was legally
represented even prior to the institution of the eviction
proceedings. Its attorneys no doubt knew what the correct procedure
was
but elected not to follow it. The respondent therefore has only
itself to blame.
Relief
[44]
It
also follows that the applicant is entitled to the eviction order
which it seeks as the court has no equitable discretion to
refuse an
ejectment order if an applicant has established the grounds
therefor.
[25]
It is however
necessary for me to determine an appropriate date by which the
respondent must vacate the premises.
[45]
Counsel for the applicant stresses that the
premises are commercial, the applicant has been deprived of the right
to deal with its
property for an extended period and the respondent
has been aware for some considerable time that it was required to
vacate. He
submitted that the applicant should have arranged its
affairs accordingly and moved for an eviction order effective
immediately.
[46]
The respondent has been aware for more than a year
that its eviction was being sought. Whilst it might not initially
have arranged
its affairs in anticipation of an order being made in
the applicant’s favour by virtue of the various defences it
raised,
the lease terminated by the effluxion of time at the end of
July 2023. The respondent must therefore have been aware for at least
the past two months that it remained in occupation when there was no
legal basis for it to do so, even if its defences to the present
eviction proceedings were upheld. It should therefore have been
seeking alternative premises. I am however mindful of the fact
that
the respondent is running its business from the premises and that
leases usually run from the first of the month. I therefore
find that
it would be appropriate to grant the eviction order effective at the
end of the month in which this judgment is handed
down, which is some
two weeks hence.
[47]
There remains the question of costs. The applicant
seeks costs on an attorney and client scale. The lease agreement does
not provide
for costs on that scale as a matter of contractual right.
The applicant however submits that costs on a punitive scale are
warranted
by virtue of the manner in which the respondent has opposed
and delayed the eviction proceedings.
[48]
The respondent did not proffer a substantive
defence to the eviction. Its answering affidavit raised a bald denial
of the allegations
that it was in arrears and it adduced no proof of
payment. Similarly, it denied receipt of the notice to remedy its
breach and
the cancellation letter in the face of the applicant
attaching email notification and a sheriff’s return to the
founding
affidavit. Apart from the authority challenge, the balance
of its opposition comprised technical defences, all of which were
correctly
abandoned. The only ground in which the respondent
persisted was the authority challenge, which required proceedings to
vitiate
the resolution. Despite such challenge being averted to in
the respondent’s answering affidavit in January 2023, it was
not
brought until seven months later, on the eve of the hearing of
the opposed motion in the eviction proceedings and nearly a year
after the respondent’s attorneys had received a copy of the
resolution.
[49]
All of this conduct speaks to the respondent
seeking to delay its eviction and the finalisation of the present
proceedings on specious
grounds. In those circumstances, I find it is
appropriate to grant costs against the respondent on the scale as
between attorney
and client.
[50]
I consequently make the following order:-
1.
The respondent and all persons in occupation by,
through or under it are ordered to vacate the premises at 2[...]
A[...] Avenue,
Springfield Park, Durban (the Premises) by 31 October
2023.
2.
Should the respondent and all persons occupying
the premises by, through or under it not vacate the premises by 31
October 2023,
the Sheriff, or his lawful deputy, is authorised
to evict such persons from the premises.
3.
The Respondent is ordered to pay the costs of this
application on the scale as between attorney and client.
ANNANDALE A.J.
JUDGMENT
RESERVED:
28
JULY 2023
JUDGMENT
HANDED DOWN:
19
OCTOBER 2023
COUNSEL
FOR APPLICANT:
T Q
REDDY
Instructed
by:
HADAR
INCORPORATED
Ref:
N Shaik/G Lidchi/M2321
Email:
nshaik@hardarinc.co.za
c/o
SOUTHEY ATTORNEYS INC
PIETERMARITZBURG
Tel:
034 315 1241
Email:
gail@southeys.co.za
Ref:
MAT15993
COUNSEL
FOR RESPONDENT:
J W
TEMLETT
Instructed
by:
Derek
Sathenna Attorneys
Email:
derek@dsalaw.co.za
litigation@dsalaw.co.za
Tel:
(031) 207 7046
c/o
Stowell
& Company
Pietermaritzberg
(Ref:
Sumaya Norgot)
[1]
Shoprite
Checkers (Pty) Ltd v Jardim
2004
(1)
SA
502
(O)
para
14.
[2]
Section
75(1)(b) defines ‘related person’ as including a second
company of which the director is also a director.
[3]
A
fric
Oil (Pty) Ltd v Ramadaan Investments CC
2004
(1)
SA
35
(N)
at
38J - 39A.
[4]
Para
22.
[5]
Hills
and Others v Taxing Master and Another
1975
(1) SA 856
(D) at p. 859 A -B.
[6]
Estate
Matthews v Ells
,
1955
(4) SA 457
(C)
at p. 459.
[7]
Unlawful
Occupiers of the School Site v City of Johannesburg
2005
(4) SA 199
(SCA) para 15.
[8]
At
p 436F to 437B.
[9]
At
p
351
H – 352 A.
[10]
At
p 436 I – 437 A.
[11]
Para
22.
[12]
Para
22.
[13]
Paras
26 – 27.
[14]
Unlawful
Occupiers
note
7 above, para 16.
[15]
Para
27.
[16]
De
Klerk
at
p 436 I – J.
[17]
Dollar
Rent a car and another v Moolla NO
2023
JDR 2712 (GJ) paras 4, 5 and 16.
[18]
Para
29.
[19]
Para
11.
[20]
Paras
28 and 22.
[21]
Paras
22 and 27.
[22]
Gainsford
and others NNO v Hiab AB
2000
(3) SA 635
(WLD) p 639 J to 640 A.
[23]
At p
D1-94 – D1-95.
[24]
Creative
Car Sound v Automobile Radio Dealers Association 1989 (Pty) Ltd
2007
(4)
SA
546
(D)
at
553I–554D.
[25]
AJP
Properties CC v Sello
2018
(1) SA 535
(GJ) at p 539 D -F.