About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 510
|
|
Ramalephatso Industries CC and Another v Nyumba Mobile Homes & Offices (Pty) Ltd - Application for Leave to Appeal (1719/2015) [2023] ZAFSHC 510 (29 December 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
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable: YES/NO
Case No: 1719/2015
In
the matter between:
RAMALEPHATSO
INDUSTRIES CC
First
Applicant
SIZAMPILO
PROJECTS CC
Second
Applicant
[1]
And
NYUMBA
MOBILE HOMES & OFFICES (PTY) LTD
Respondent
In
re
NYUMBA
MOBILE HOMES & OFFICES (PTY) LTD
Plaintiff
And
MEC
FOR THE FREE STATE DEPARTMENT OF HEALTH
First
Defendant
[2]
FEZILE
DABI DISTRICT MUNICIPALITY
Second
Defendant
MAZIBUKO
WESSELS ARCHITECTS
Third
Defendant
RAMALEPHATSO
INDUSTRIES CC
Fourth
Defendant
SIZAMPILO
PROJECTS CC
Fifth
Defendant
GRAHAM
TAKATSO LEHETLA
Sixth
Defendant
CARLTON
PULE SHAKWANE
Seventh
Defendant
Coram:
Opperman J
Heard:
27
October 2023
Delivered:
29 December
2023.
This judgment was handed down in
court and electronically by circulation to the parties’ legal
representatives
via
email and released to SAFLII on 29 December 2023. The date and time
of hand-down is deemed to be 15h00 on 29 December 2023
Judgment:
Opperman J
Summary:
Application
for leave to appeal
JUDGMENT
[1]
This case may not be allowed to go on appeal because
there is no
reasonable prospect that another court would reach a different
conclusion. There does not exist any compelling reasons
before this
court why an appeal of the case should be heard and the application
for leave to appeal be granted.
[2]
Mr Graham Takatso Lehetla (“Mr
Lehetla” or “TK”) and Mr Carlton Pule Shakwane (“Mr
Shakwane”)
are the sole members of the applicants. They
conducted their business as a
joint
venture
in the cause that brought the
matter to litigation. They have done nothing but displayed a contempt
for the litigation, the process,
the respondents, and the court in
the case
a quo
in which the default judgment was granted.
[3]
In the current application that now lies for leave to appeal
t
he applicants did not show good cause for their
default to exist, nor a prospect of success should the matter be
allowed to go on
trial. It was, furthermore, pointed out in the
application for rescission judgment that the applicants allegedly
committed the
same legally unbecoming conduct during the contracts
inter partes
and towards their obligations in terms thereof, as to the justice
system. The alleged breach of their contractual obligations formed
the basis for the case and a subsequent series of similar behavior
followed; but this time aimed against the justice system.
[4]
Commercial certainty is the unfettered
right of the respondent to claim compliance with contracts and court
orders and be aided
with access to swift justice in assertion
thereof. The sustenance of a democratic economy is crucial. In
Basson
v Chilwan and Others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 762H, Eksteen JA referred to: “The paramount importance
of upholding the sanctity of contracts, without which all
trade would
be impossible ...”.
[5]
Justice
Ackermann in
Ferreira
v Levin NO; Vryenhoek v Powell NO
1996
(
1
)
SA
984
(
CC
)
at paragraph [26] described equal protection under the law as: “a
central consideration in a constitutional state”.
These
statements aim for reasonable certainty, so that parties can go about
their business knowing the rules of the game; constitutional
economic
integrity is vital.
[6]
The constitutional right of the applicants
lies in the use of courts to settle disputes; the right to access to
courts in terms
of section 34 of the Constitution of the Republic of
South Africa, 1996. Furthermore, to have any dispute that can be
resolved
by the application of law decided in a fair public hearing
before a court.
The respondent has the
same right and it may not be obstructed by the unexplained or willful
absence of the other party at a trial
.
[7]
The above sets the atmosphere in which the
norm of “good cause” must be applied on the facts of this
case. The criteria
includes at least both a reasonable and acceptable
explanation for the default and a
bona
fide
defence on the merits which
prima
facie
carries some prospect of success.
[8]
Each case must be adjudicated on its own
merits and there is no
numerus clausus
of factors. The law is that the court has a wide discretion in
evaluating good cause to ensure that justice is done. The explanation
for default must be stated and be reasonable. The default may not be
willful and an attempt to delay justice.
[9]
The
right to appeal is not there just for the taking. Slotting in with
the above is the fact that: …On the contrary, it would
be
inimical to the interests of justice to permit or encourage the
applicants to continue on their misguided path in the current
litigation. It is purposeless, and nothing more than an abusive
imposition on the court's resources and an unwarranted derogation
from the
prima
facie
rights of those of the respondents who are applicant's judgment
creditors.
[3]
[10]
The right to appeal is, among others, managed by the
application for leave to appeal. It may not be abused but the hurdle
of an
application for leave to appeal may never become an obstacle to
justice in the post-constitutional era. Access to justice is access
to justice.
[11]
The Supreme Court of Appeal in
Ramakatsa and others v
African National Congress and another
[2021] JOL 49993
(SCA)
ruled in March 2021 that:
[10]
Turning the focus to the relevant provisions of the Superior Courts
Act (the SC Act),
leave to appeal may only be granted where the
judges concerned are of the opinion that the appeal would have a
reasonable prospect
of success or there are compelling reasons which
exist why the appeal should be heard such as the interests of
justice. This Court
in Caratco, concerning the provisions of section
17(1)(a)(ii) of the SC Act pointed out that if the Court is
unpersuaded that there
are prospects of success, it must still
enquire into whether there is a compelling reason to entertain the
appeal. Compelling reason
would of course include an important
question of law or a discreet issue of public importance that will
have an effect on future
disputes. However, this Court correctly
added that "but here too the merits remain vitally important and
are often decisive".
I am mindful of the decisions at High Court
level debating whether the use of the word "would" as
oppose to "could"
possibly means that the threshold for
granting the appeal has been raised. If a reasonable prospect of
success is established,
leave to appeal should be granted. Similarly,
if there are some other compelling reasons why the appeal should be
heard, leave
to appeal should be granted. The test of reasonable
prospects of success postulates a dispassionate decision based on the
facts
and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court. In other words,
the
appellants in this matter need to convince this Court on proper
grounds that they have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of succeeding.
A sound rational basis for the
conclusion that there are prospects of success must be shown to
exist.
(Accentuation added)
[12]
The
fact remains that the judicial character of the task conferred upon a
presiding officer in determining whether to grant leave
to appeal is
that it should be approached on the footing of intellectual humility
and integrity, neither over-zealously endorsing
the ineluctable
correctness of the decision that has been reached, nor over-anxiously
referring decisions that are indubitably
correct to an appellate
court.
[4]
[13]
As
I said in the judgment for rescission; litigants may not be allowed
to turn their backs on the justice system and the court and
walk away
as, and when, and how it suits them. It should not be necessary for
the court to protect the rule of law against litigants.
Access to
courts in terms of section 34 of the Constitution of the Republic of
South Africa, 1996 is a basic human right. The Constitutional
Court
[5]
was
clear and unyielding when it was ruled that:
[2]
In this matter, this Court is being asked to rescind the judgment and
order that it handed down in respect of contempt of court proceedings
launched against former President Jacob Gedleyihlekisa Zuma
for his
failure to comply with an order of this Court. Ironically, the
judgment now impugned, contains a thorough exposition
of the rule of
law and its fundamental importance to South Africa’s
constitutional democracy. Indeed, it says, “[n]o
one
familiar with our history can be unaware of the very special need to
preserve the integrity of the rule of law” in South
Africa.
Yet, with the finality of its decision questioned, this Court, once
again, finds itself tasked with defending
the integrity of the rule
of law.
[103]
…
If our law, through the doctrine
of peremption, expressly prohibits litigants from acquiescing in a
court’s decision and then
later challenging that same decision,
it
would
fly in the face of the interests of justice for a party to be allowed
to willfully refuse to participate in litigation and
then expect the
opportunity to re-open the case when it suits them. It is simply not
in the interests of justice to tolerate this
manner of litigious
vacillation
.
(Accentuation
added)
[14]
The
applicants have, wisely so, abandoned their grounds for leave to
appeal that attacked the default judgment on the basis that
it was
granted erroneously in terms of rule 42(1) of the Uniform Rules of
Court. The grounds for leave to appeal as per paragraphs
2.1 to 2.11
were thus abandoned. They now base their application for leave to
appeal on paragraphs 2.12 to 2.26 that rely on the
rescission of
judgement as directed by common law principles.
[6]
I will not repeat the basis of their arguments as I have dealt with
it in the judgment previously during the application for rescission.
[15]
To reiterate; this is what happened that
caused the default judgment:
1.
On 13 November 2022 Mr Lehetla, according
to him, was advised that
the matter was on the roll for March 2023.
2.
The notice of set down for the trial was served
on the applicants’
attorney on 30 November 2022.
3.
On the same day the attorney addressed an
email to Mr Lehetla to
inform him of the trial.
The attorney confirmed that he
attached the notice of set down to the email.
Mr Lehetla
had to have full knowledge and understanding of the dates.
4.
Although Mr
Shakwane alleges that he never received the notice of withdrawal the
respondent’s attorney made enquiries with
the erstwhile
attorneys of the applicants and was informed that the joint venture
was at all times represented by Mr Lehetla. Mr
Lehetla informed the
erstwhile attorney that he is the responsible person, and all contact
and communication should be with him.
The erstwhile attorney’s
invoices were always sent to Mr Lehetla but paid by both applicants.
This information was confirmed
under oath by said attorney in
annexure “AA23” on pages 270 to 271 (paragraph 3) of the
bundle indexed on 14 June 2023.
[7]
…
I specifically
confirm that although I legally represented the 4
th
to 7
th
defendants in the matter, my only communications were with the sixth
respondent, known to me as TK. TK informed me that he was
authorised
to instruct me on behalf of all the mentioned defendants, and I had
no reason to doubt his assurance.
5.
At
paragraph 8.5 of his statement
[8]
Mr Shakwane admitted that: “There was however little
communication between my attorney’s and myself as the sixth
defendant
occasionally informed me what the progress of the matter
was.”
It
is trite that a litigant must take responsibility for the management
of his case; he may not sit back and wait for news.
He paid the invoices submitted by the attorneys and must have had
some inquiries as to the detail of the services rendered.
6.
Mr Shakwane stated his address in his confirmatory
affidavit to be at
32 Mostert Street, Nelspruit, Mpumalanga Province. The address that
his attorney had of him according to the
notice of withdrawal is
Stand 30, Kabokweni and Sizampilo Projects CC at 119 Nkhohlakalo
Trust, Kabokweni.
7.
It is vital
to realize that Ramalephatso Industries CC and Sizampilo Projects CC
entered into the contracts that caused the action
as a joint venture.
The one’s business was the business of the other. “GTL03”
at page 42 of the bundle shows
the letterhead of “Sizampilo
Projects & Ramalephatso Industries” as one entity with
email
t[...]@yahoo.com
.
It is also undisputed that Mr Lehetla took the lead in the
communications with the attorneys. The notice of withdrawal as per
page 269 of the bundle “AA22” was served on this address.
Perusal of the papers before the court shows that communication
was
to this address.
8.
In
addition, “GTL03” shows that the joint venture has only
one physical address, one landline number, one fax number,
one cell
phone number and one email address:
t[...]@yahoo.com
.
The joint venture operates under one registration number namely:
1998/[…]. The address is “Suit No: 140 CALTEX BUILDING,
32 BELL STREET, NELSPRUIT”. If the applicants wanted service
and communication at any other address, they had to indicate
this to
their attorney and in the contract.
9.
In an email of 30 November 2022, the legal
representative requested
Mr Lehetla that counsel be appointed, and consultations be finalized.
10.
Mr Lehetla responded immediately and as follows:
Your email is noted.
But as I explained to you
earlier via our telephone conversation, I suggest I should get my Own
Affordable Advocate to work with
you on this matter, I can pay your
Fees directly.
11.
On 19 January 2023 the attorney had not received any further
instructions from Mr Lehetla and addressed another email to him
wherein he enquired about the appointment of an advocate and in
addition, requested him to make payment of the deposit in respect of
the attorney’s fees as was agreed.
12.
Later in the day on 19 January 2023 Mr Lehetla responded that
he will
visit Bloemfontein “sometime next month to understand the
attorney’s account”. No mention was made of
the
appointment of an advocate. “Next month” was February
2023; the trial was to commence on 7 March 2023.
13.
The legal representative send a second email on the same day
to Mr
Lehetla and explained the account. The legal representative
emphasized the following:
You did not yet get an
advocate as promised. May I remind you that we are in Court in March.
Advocates are running a busy schedule
and I truly hope you find an
advocate in time. I wanted to book an advocate during November 2022,
but you said the deposit is extravagant.
You must very URGENTLY
give me instructions if you want to proceed with the matter.
The bottom line is that I
will Withdraw as attorney of record timeously, in order for you to
get a new attorney on this case ASAP.
14.
Mr Lehetla responded on 20 January 2023:
Your mail was noted but I
took the Decision to
terminate your mandate
because of
your exorbitant costs which small companies like us can’t
afford.
I will be in Bloemfontein
second week of February to search someone who can take over from you
with reasonable fees as you’re
aware that this is a shit case
with no MERITS. Furthermore if there is any justified funds I still
owe you it can be arranged how
it can be sorted out but to my little
knowledge I paid all your invoices you provided
to us
unless there’s extra work you done
for us
which I
am not aware of.
If there is any clarity
my line is open.
G.T. Lehetla
(Accentuation added)
15.
The services of the attorneys were summarily terminated by the
applicants
. The attorneys did not withdraw on their own volition.
The applicants were now aware, and very well so, that they are
without legal representation and cannot hide behind any notice of
withdrawal that was allegedly not issued in accordance with rule 16
of the Uniform Rules of Court.
16.
Their attorney of record withdrew after the termination of
their
mandate, and they did not appoint new legal representatives. They did
not attend the trial.
17.
It is not
known to this court on what basis the court granted the default
judgment on 7 March 2023. It is not known whether the
court had
information that is not available to this court and how the plaintiff
convinced the court of proper service. It is therefore
impossible to
infer that the court made a mistake. The parties elected not to put
the information forth in this application. In
applying the provisions
of rule 42 it should always be borne in mind that the court cannot
sit as a court of appeal and that it
cannot review the order.
[9]
18.
Mr Lehetla confessed that:
8.15
I do however acknowledge that there was an obligation on the fourth
defendant to appoint
a different attorney when it could not afford
the services of Mr. Van Vuuren and that is (sic) should have enquired
about the exact
trial date. What really mattered was the court date
and the appointment of an attorney. I therefore admit that the fourth
defendant
was negligent in this regard.
[16]
The cause of action came from a contract
awarded in 2011 for the construction of temporary wards and a new
forensic mortuary at
the Metsimaholo District Hospital, in Sasolburg,
Free State Province, to the Sizampilo/Ramalephatso Joint Venture as
the main contractor
by Fezile Dabi District Municipality.
1.
The respondent was appointed by the joint
venture as subcontractor on
22 November 2011 for the construction of prefabricated general wards
and a temporary mortuary at the
hospital. The contract price is R 5
107 547.00. The contract apparently specified a specific term of the
appointment and payment
would be made to the respondent within 30
days after receipt of an invoice approved by the site engineer.
2.
The appointment was accepted by the respondent
on 13 December 2011
and subject to specified amendments to the initial quotation and
specified payment terms. These payment terms
were reflected in the
acceptance letter as a percentage that the joint venture had to be
paid upon the completion of the building
and during different stages
of the contract.
3.
Construction of the temporary structures commenced
during January
2012. As is evident from the affidavits, counter allegations are made
by the applicants and the respondent about
the delays and the
workmanship that resulted from the performance of the works.
4.
What however remains common cause is that
payment in the sum of R 4
920 615.12 of the initial contract price of R 5 107 547.00 was paid.
The balance was kept as retention
for certain specified snags
compiled by Mazibuko Wessels Architects, to be corrected.
5.
A dispute arose between the joint venture
and the respondent
regarding the liability to correct the snags and the respondent, as
subcontractor, requested the principal agent
to have the Municipality
make direct payments to it as it did not trust the joint venture.
This then culminated in the conclusion
of a cession agreement on 26
June 2013.
6.
The applicants, in terms of the cession agreement,
jointly ceded the
rights title and interest they had against the Municipality, to the
respondent in the amount of R 624 965.53
together with interest
thereon.
7.
The cession in addition provided that the
respondent, as cessionary,
undertook to repair any material latent structural defects
attributable to it, arising within three
months of the date of such
cession, without any further costs to the applicants.
8.
The applicants, as cedents, in turn undertook
to ensure that any
defects, whether latent or not, which is not exclusively attributable
to the cessionary, be repaired within
seven days after receipt of
notification of the said defects and take all such necessary steps as
to not further delay and/or prevent
any payment to the cessionary.
9.
Apart from the retention in relation to the
temporary mobile units,
there were certain monies that the Municipality owed to the joint
venture based on the main contract. On
12 September 2013 two snag
lists were issued by the architects, one for the joint venture and
the other for the respondent.
10.
The joint venture allegedly attended to its snag list and completed
the works which were accordingly approved. The joint venture was
subsequently paid its retention monies and left the site.
11.
The Municipality alleges that it was required to utilize a
third-party contractor to finalize the project and that it has fully
discharged its payment obligations to the joint venture.
12.
In April 2015 the plaintiff issued summons against the first
to
seventh defendants as cited in the main action. In terms of the
particulars of claim as they then stood, the plaintiff/respondent
pleaded that the applicants breached the terms of the cession
agreement in that apart from paying an amount of R 271 835.68 the
applicants neglected to pay the balance.
13.
The respondent, in addition, alleged that the Municipality,
despite
having knowledge of the cession agreement, breached its obligations
by failing and or refusing to make payment of the amounts
reflected
in the cession agreement.
14.
In their plea, the applicants denied that payment was to be
made by
the applicants and pleaded that the Municipality had to make payment
after all the obligations were met in terms of the
cession agreement.
15.
During November 2021, almost six years later, the respondent
amended
its particulars of claim, now relying on the applicants alleged
breach of the terms of the 'main agreement', in that the
latter
failed and/or refused to make payment to the respondent in the amount
of R313 268 09.
16.
According to counsel for the joint venture in
casu
the
applicants' erstwhile attorney
failed to seek instructions from
the applicants to make consequential adjustments
to the
initial plea consequent upon the respondent's amendment. This
therefore had the effect of the plea filed by the applicants,
as it
currently stands, being based on the cession as the cause of action
and not on the initial appointment as sub-contract. Notwithstanding
the averment that blames the attorneys for the oversight,
the
prelude to the default above shows that the applicants did not
co-operate fully with their attorneys.
[17]
The lackadaisical handling of the applicants of their case and their
defense
is of concern; if they had a
prima facie
defence on
the facts, they could have addressed the matter expeditiously and
avoided any delay.
[18]
Application
of the Plascon Evans – dictum
[10]
on the affidavit of one Pieter Le Roux for the respondent and the
facts that are common cause convinces the court that the applicants
have not proven, on the merits of the case, that a
bona
fide
defence which
prima
facie
carries a prospect of success, exists.
[19]
Rule 16 that was being used as a defense by
the applicants deals with the representation of parties by attorneys.
Its objective
is to provide the parties with a definite and
convenient address at which they are entitled to serve the further
processes in the
case. This smokescreen to obtain a rescission
judgment of the March – 2023 order serves as an example of the
dubious manner
in which the applicants operate. They have not
explained up until the writing of this judgment why they chose to
ignore the date
of the 7
th
of March 2023.
[20]
On the undisputed facts the notice of
set-down that depicted the dates for trial was already served and
procedurally correct. The
dates for trial did come to the notice of
the applicants; they had proper knowledge thereof. The notice of
withdrawal is also peripheral
due to the further fact that the
applicants ended the mandate of the attorneys, and the attorneys did
not withdraw on their own
volition.
[21]
The applicants had adequate and legally
appropriate knowledge of the dates of trial. The service in terms of
rule 16 of the withdrawal
of the attorneys is irrelevant to their
knowledge of the dates of trial. The order was not erroneously
granted. As counsel for
the applicants correctly pointed out in their
heads of argument; it is about knowledge of the dates. The notice of
set down was
properly served on the applicants by the email forwarded
by their own attorneys to them.
[22]
Their default was blatantly disrespectful
to the rule of law and the interest of the other litigants. The
default has caused a delay
in the case that is to the prejudice of
the respondent and the administration of justice; it is a delay of
months if not a year
and unacceptable. The default closed the doors
of access to justice in terms of section 34 of the Constitution to
the respondent.
[23]
The
application must be dismissed on the first leg already in that there
is not a reasonable explanation before this court for the
default;
the lack of prospects of a
prima
facie
defence bolsters the dismissal of the application for rescission and
with costs. Litigation started in 2015 and the interest of
justice
demands finality to be reached.
[11]
[24]
ORDER
The application for leave
to appeal is dismissed with costs and the applicants are ordered to
pay the costs of the application for
leave to appeal jointly and
severally.
M OPPERMAN J
APPEARANCES
On
behalf of the first & second applicants
L.B.J
MOENG
Gardee
Godrich Attorneys
Johannesburg
c/o
Stander & Associates Attorneys
Bloemfontein
On
behalf of the respondent
J
VORSTER
Van
Rensburg Koen & Baloyi
Pretoria
c/o
Hill McHardy & Herbst Incorporated
Bloemfontein
[1]
The
applicants operated as a joint venture in this case.
[2]
It
was ordered by Van Zyl J on 6 May 2016 that all references in the
combine summons to the first defendant as a party to the
action to
be struck out on the basis of a misjoinder of the first defendant as
a party to the action.
[3]
Mannatt
and Another v De Kock and Others
(18799/2018)
[2020] ZAWCHC 54
(22 June 2020) at paragraph [9].
[4]
S
v Smith
2012 (1) SACR 567
(SCA) at [7].
[5]
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State and Others
[2021] ZACC 28.
[6]
Applicants’
heads of argument at paragraphs 1.3 and 1.4.
[7]
“
The
Bundle”
[8]
Page
151 of the Bundle.
[9]
Rule
42 does not affect the substantive law; it goes to procedure. In
Civil Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 42 VARIATION AND RESCISSION OF
ORDERS, Grounds, Last Updated: August 2023 - SI 77,
https://www.mylexisnexis.co.za/Index.aspx,
Harms pointed out in footnote 2 at B42.2: “There are a number
of dicta that give the impression that this basic principle
does not
apply, forgetting that the rule is merely procedural and does not
affect the substantive law:
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E);
Nyingwa
v Moolman NO
1993 (2) SA 508
(Tk GD);
Suleman
v Minister of Interior
[1996] 1 All SA 553
(Tk) and
Njomane
v Lobi
[1996] 2 All SA 252
(Tk);
Mutebwa
v Mutebwa
[2001] 1 All SA 83
(Tk),
2001 (2) SA 193
(Tk). But see
Stander
v Absa Bank
1997
(4) SA 873
(E) 884
;
Dawson & Fraser (Pty) Ltd v Havenga Construction (Pty) Ltd
1993 (3) SA 397
(B GD);
Naidoo
v Somai and Others
2011 (1) SA 219 (KZP)”
[10]
Plascon-Evans
Paints LTD v Van Riebeeck Paints
(PTY)
LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A). The Plascon-Evans rule allows courts to make
determinations on disputes of fact in application proceedings
without hearing
oral evidence. The rule states that in motion
proceedings, a final order may be granted if the facts stated by the
respondent,
together with the admitted facts in the applicant's
affidavits, justify the order. There are exceptions to the rule,
such as
when allegations or denials are far-fetched or clearly
untenable. The Plascon-Evans rule applies only to final relief and
not
interlocutory matters.
[11]
Zuma
-case
supra
footnote
3 at paragraph [104] of the case.