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[2023] ZAECMKHC 17
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Zimanga v Minister of Police (1743/2020) [2023] ZAECMKHC 17 (28 February 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE
NO: 1743/2020
In
the matter between:
MLUNGISI
ZIMANGA
Plaintiff
And
MINISTER
OF
POLICE
Defendant
JUDGMENT
LOWE J
INTRODUCTION
1.
In this matter plaintiff instituted action
against defendant arising from his alleged unlawful arrest and
detention on 5 June 2018.
2.
It is also alleged that the arresting
officers neglected and failed to exercise their discretion in favour
of not arresting plaintiff.
3.
It is further alleged that plaintiff was
detained for seven days whereafter he was transferred to the
provincial hospital in Port
Elizabeth for further treatment.
4.
The original claim B for assault was
abandoned at trial.
5.
The defendant delivered a plea to
plaintiff’s claim relying on sections 39 and 40 of the Criminal
Procedure Act 51 of 1977
(“CPA”). In essence, the
main defence, however, lay in the application of section 40(1)(h) of
the CPA. The defence
admitted the arrest by approximately six members
of the SAPS, it being alleged that plaintiff was arrested on a charge
of being
in possession of dependence producing drugs (Schedule 2 of
the CPA read with section 4 of the Drugs and Trafficking Act 140 of
1992). It was alleged that upon inspection of plaintiff’s
premises at the time, he was found to be in illegal possession
of
illicit drugs, in this instance marijuana.
6.
It was further pleaded that upon the
discovery of the said illicit drugs plaintiff fled the scene when it
was clear that an attempt
to arrest him was being made, and was
subsequently arrested when brought back to the premises.
THE LAW
7.
In
Duncan
v Minister of Law and Order
[1]
,
it
was held that the jurisdictional facts for a Section 40(1)(b) defence
are that (i) the arrestor must be a peace officer, (ii)
the arrestor
must entertain a suspicion; (iii) the suspicion must be that
the suspect (the arrestee) committed an offence
referred to in
Schedule 1; and (iv) the suspicion must rest on reasonable
grounds.
[2]
8.
The
suspicion that must be held must, in order to be a reasonable one, be
objectively sustainable, in the sense that it must rest
on reasonable
grounds.
[3]
9.
The
jurisdictional fact for an arrest without warrant in terms of these
provisions remains a suspicion. In
Mabona
& Another v Minister of Law and Order and Others
[4]
,
the
following was said in relation to how a reasonable suspicion is
formed:
“
Would
a reasonable man in the second defendant's position and possessed of
the same information have considered that there were
good and
sufficient grounds for suspecting that the plaintiffs were guilty
of conspiracy to commit robbery or possession of
stolen property
knowing it to have been stolen? It seems to me that in evaluating his
information a reasonable man would bear in
mind that the section
authorises drastic police action. It authorises an arrest on the
strength of a suspicion and without the
need to swear out a warrant,
ie something which otherwise would be an invasion of private rights
and personal liberty. The
reasonable man will therefore analyse
and assess the quality of the information at his disposal critically,
and he will not accept
it lightly or without checking it where it can
be checked. It is only after an examination of this kind that he will
allow himself
to entertain a suspicion which will justify an arrest.
This is not to say that the information at his disposal must be of
sufficiently
high quality and cogency to engender in him a
conviction that the suspect is in fact guilty. The section requires
suspicion
but not certainty. However, the suspicion must be based
upon solid grounds. Otherwise, it will be flighty or arbitrary, and
not
a reasonable suspicion.”
[5]
10.
In
Minister
of Police and Another v Du Plessis
[6]
Navsa
ADP stated as follows:
“
[14]
Police bear the onus to justify an arrest and detention. In
Minister
of Law and Order and Others v Hurley and Another
1986 (3) SA 568
(A) at 589E – F the following is stated:
'An arrest constitutes an
interference with the liberty of the individual concerned, and it
therefore seems to be fair and just
to require that the person who
arrested or caused the arrest of another person should bear the
onus
of proving that his action was justified in law.'
[15]
Our new constitutional order, conscious of our oppressive past,
was designed to curb intrusions upon personal liberty
which has
always, even during the dark days of apartheid, been judicially
valued, and to ensure that the excesses of the past would
not recur.
The right to liberty is inextricably linked to human dignity. Section
1 of the Constitution proclaims as founding
values, human dignity,
the achievement of equality and the advancement of human rights
and freedoms. Put simply, we as a society
place a premium on the
right to liberty.
[16]
In
Zealand
v Minister of Justice and Constitutional Development and
Another
[2008] ZACC 3
;
2008
(2) SACR 1
(CC)
(2008 (4) SA 458
;
2008 (6) BCLR 601)
para 24 the following is said:
'The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient in this case for the applicant
simply
to plead that he was unlawfully detained. This he did. The
respondents then bore the burden to justify the deprivation
of
liberty, whatever form it may have taken.'
[17] Justification for
the detention after an arrest until a first appearance in court
continues to rest on the police. Counsel
for the appellants rightly
accepted this principle. So, for example, if shortly after an arrest
it becomes irrefutably clear
to the police that the detainee is
innocent, there would be no justification for continued detention.”
11.
It
is trite that police officers purporting to act in terms of Section
40(1) of the CPA should usually investigate exculpatory explanations
offered by a suspect before they can form a reasonable suspicion for
the purpose of lawful arrest.
[7]
It is expected of a reasonable person to analyse and weigh the
quantity of information available critically and only
thereafter, and
having checked what can be checked, will he form a mature suspicion
that will justify on arrest.
[8]
12.
The
Supreme Court appeal recently held in
Biyela
v Minister of Police
[9]
that the suspicion need not be based on information that would
subsequently be admissible in a court of law. The court explained
that the standard of a reasonable suspicion is very low – it
should be more than a hunch, and should not be an unparticularized
suspicion. It must of course be based on specific and articulable
facts or information.
THE PROPER APPROACH
TO THE EVIDENCE, ITS ASSESSMENT AND
RELEVANT LINKED
ISSUES THERETO
13.
In respect of the analysis and resolution
of disputed issues in a civil trial a Court must consider the
credibility of witnesses
and their reliability against the inherent
probabilities and improbabilities of the matter.
14.
In
National
Employers General Insurance Co. Ltd v Jagers
[10]
it was stated as follows:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the evidence of the party on whom the onus
rests. In a civil case the onus is obviously not
as heavy as in
a criminal case, but nevertheless where the onus rests on the
Plaintiff as in the present case, and where there
are two mutually
destructive stories, he can only succeed if he satisfies the court on
a preponderance of probabilities that his
version is true and
accurate and therefore acceptable, and that the other version
advanced by the Defendant is therefore false
or mistaken and falls to
be rejected. In deciding whether that evidence is true or not
the court will weigh up and test the
Plaintiff’s allegations
against the general probabilities. The estimate of the
credibility of a witness will therefore
be inextricably be bound up
with a consideration of the probabilities of the case and if the
balance of probabilities favour the
Plaintiff, then the court will
accept his version as being probably true. If, however, the
probabilities are evenly balanced
in the sense that they do not
favour the Plaintiff’s case any more than they do the
Defendant’s, the Plaintiff can
only succeed if the court
nevertheless believes him and is satisfied that his evidence is true
and that the Defendant’s version
is false.”
[11]
15.
In
SFW Group
(supra)
the following was said:
“
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions.
So, too, on a number of
peripheral areas of dispute which may have a bearing on the
probabilities. The technique generally
employed by courts in
resolving factual disputes of this nature may conveniently be
summarised as follows. To come to a conclusion
on the disputed issues
a court must make findings on
(a)
the
credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the
probabilities. As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness' candour
and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established facts or with his own extracurial statements or
actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of
his performance compared to
that of other witnesses testifying about the same incident or events.
As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of
proof has succeeded in discharging it.”
16.
It is important to emphasise that “
an
analysis and evaluation of the probability or improbability of each
party’s version on each of the disputed issues”
is required in order to evaluate the effect of the probabilities on
the evidence of the witnesses. Only once all the above
is
considered can a decision be taken as to whether the requisite onus
has been discharged.
17.
One must of course have regard to a
conspectus of all the evidence. Probabilities must be
distinguished from conjecture and
speculation, within the four
corners of the proved facts.
18.
Mendacity must be considered.
19.
In
respect of a witness who has been mendacious this does not
necessarily warrant the rejection of the evidence in its entirety
as
false. It is permissible to either accept or reject the
evidence of a witness who has lied previously or in relation to
a
particular aspect of fact. As pointed out in Principles of
Evidence
[12]
, everything
depends on the particular circumstances of the case. In
S
v Oosthuizen
[13]
the following was said
and is equally applicable to a civil witness:
“
All
that can be said is that where a witness has been shown to be
deliberately lying on one point, the trier of fact
may
(not
must
)
conclude that his evidence on another point cannot safely be relied
upon ... The circumstances may be such that there is no room
for
honest mistake in regard to a particular piece of evidence:
either it is true or it has been deliberately fabricated.
In
such a case the fact that the witness has been guilty of deliberate
falsehood in other parts of his evidence is relevant to
show that he
may have fabricated the piece of evidence in question. But in
this context the fact that he has been honestly
mistaken in other
parts of his evidence is irrelevant, because the fact that his
evidence in regard to one point is honestly mistaken
cannot support
an inference that his evidence on another point is a deliberate
fabrication.”
20.
Principles
of Evidence points out
[14]
:
“
In
Goodrich
v Goodrich
[15]
it was also emphasised that a court should carefully guard against
the acceptance of the fallacious principle that a party should
lose
its case as a penalty for its perjury or lies under affirmation.
It was pointed out that the specific circumstances
of each case
should be considered and that in each case the court should ask
itself whether the fact that a party has attempted
to strengthen or
support its case with lies proves or tends to prove the belief of a
party that its case is ill-founded:
as a general rule a
carefully considered and prepared false statement (and
a
fortiori
a
conspiracy with others that they should give false evidence in
support of the case of the party concerned) would more likely be
an
indication of a party’s awareness of the weakness of its case
than a story contrived on the spur of the moment.”
THE FACTS
21.
The plaintiff gave evidence in support of
his claim, saying that whilst he normally resided in a particular
area, on the date in
question he was house sitting for a friend at
extension […] E[...] Makhanda. He explained that the friend
was a traditional
healer. During the night, sometime before midnight
on 5 June, 2018, he heard a knock on the door and attempted to call
his friends
on his cellphone as he feared for his safety, and
thereafter being advised by his girlfriend to do so, opened the door.
He immediately
saw that it was the police at the door, but he did not
know how many, but noted some were wearing police uniform. With his
permission
the police searched the one room in that part of the
premises, but he says then asked for permission to enter a further
room of
the premises from an outside door. He said that he did not
have the key for the room at which stage he was slapped and kicked by
the police. He said that due to the assault he ran away and hid until
the police left the premises to which he then returned. He
took his
bag to a neighbour’s house, but leaving that house saw a person
in pyjamas holding a firearm which was discharged
into the air. He
ran away again towards a stream in the valley. He said, although not
pursuing the claim, that he was severely
assaulted by the police at
the stream. He said that the assault continued until the community
members intervened by shouting and
that he was then put in a police
vehicle and taken to the hospital because he had been assaulted. He
said at the hospital he was
kept in handcuffs at all times. He said
in his evidence in chief that he did not know why he had been
arrested and that he had
not seen any marijuana at the place where he
stayed save traditional medicine and iimpepha.
22.
He did not fare well in cross-examination,
to say the least, save confirming that the search of the premises had
been with his permission
and that he had no complaint against the
police, except the alleged assault, and that he could not deny or
dispute that marijuana
was retrieved from the premises.
23.
In an effort to support plaintiff’s
evidence a neighbour relevant to where he was staying was called as a
witness. This witness,
N Krantz, stated that she was the traditional
healer’s neighbour and at about midnight heard a sound and a
person shouting
“
police, police
”.
She looked out of the door and saw people at the traditional healer’s
house in respect of which a door was open and
the police going into
the house. She said that a man came out wearing shorts covering
himself with a blanket (the plaintiff), as
well as a lady who was
carrying a child. She said the plaintiff was running, the police
giving chase. She said the police later
returned and spoke to Ms.
Krantz and then left. After a time she heard a call and found
the plaintiff outside. He requested
that she keep his identity
document and his bag with clothes and said he would not sleep at the
traditional healer’s home
as he was afraid the police would
return and find him there. She said that the police returned at
that stage and chased plaintiff
firing a shot in the air. She
heard a man crying and pleading for forgiveness in the valley, being
joined by community members
who noticed marked police vehicles.
The community shouted that the police should not assault the person
and rather arrest
him, but could not see as it was dark. Plaintiff,
she said was taken to the van, but they were not allowed closer. On 6
June 2018
a man arrived at her house claiming to be plaintiff’s
brother. He said he must enquire at the police station as to
what had happened and he wanted her to accompany him, which she did.
They were informed that plaintiff was at the hospital, they
then
proceeded to go to the hospital, finding plaintiff lying in bed in
handcuffs, something inserted in his right side draining
blood. She
visited the plaintiff again on 7 June 2018 as she had been asked to
bring his clothes. She found plaintiff at the hospital
alone in the
bed, there being a police official present. She disputed that it was
extension […] where she was staying, saying
that it was
extension […].
24.
Defendant, in turn, called Constable Masa,
who had been in service since 2012. He was on duty on 6 June 2018 and
said that he received
an instruction from his Captain that there was
a suspect that was dealing in marijuana and that the captain had made
the necessary
arrangements for him to charge the plaintiff who was in
Settlers Hospital. He said that he went to Settlers Hospital and
charged
plaintiff in the usual way. He identified the documents
that had been used and completed, including the giving to plaintiff
his rights. He said he found plaintiff in hospital, not handcuffed or
guarded, in bed on 6 June 2018. He confirmed that plaintiff
had
signed his statement and that they had conversed in plaintiff’s
home language. He also took photographs of plaintiff
doing so while
plaintiff was standing out of/not close to his hospital bed.
25.
The
second state witness was Constable Zuzani. The Constable was employed
in a Crime Intelligence Unit relevant to surveillance
duties and
investigations. On 5 June 2018 he was on duty on night shift starting
at 7 pm, and was involved in plaintiff’s
arrest. At about 10 pm
he received information that there was a drop-off at the traditional
healer’s house relevant to drug
sales. He undertook the
surveillance of the premises and saw three persons going in and out.
He then assembled a team to go to
the premises, arriving with
Constable Daniels and others. Constable Daniels knocked on the door
and they introduced themselves
to plaintiff. Daniels informed the
plaintiff why they were there, in a language he understood, and asked
permission to enter and
search the premises to which plaintiff
consented saying they were his premises. In the search, he
found a bowl next to the
bed containing “
bompies
”
of marijuana and money. He heard the alarm of his police vehicle and
went outside to investigate at which stage plaintiff
ran out of the
premises. He gave chase in the dark and eventually catching him in
the valley near a stream. He apprehended plaintiff
and returned to
the place of residence to continue with the search. Upon arrival at
the premises the second room was opened, searched,
and inside was
found a plastic bag containing marijuana. At this stage plaintiff was
informed that he was being arrested and his
rights were explained to
him. He said that the marijuana in the bag was clearly to be
identified as such, from its look and smell,
and that he had been
working in the drug section of the police for a long time and was
familiar with marijuana. He said that
a constable then took
plaintiff to the Pick and Pay to weigh the marijuana but got a call
from the constable to say they had not
in fact gone into Pick and Pay
as plaintiff could not breath well and he was taken then to the
hospital
[16]
.
26.
In respect of the marijuana in the second
room he said that this was packed in the usual way that drug dealers
utilized in order
that the marijuana dogs not pick up the smell.
ANALYSIS OF THE
WITNESSES
27.
It must be appreciated, that the crucial
time relevant to the cause of action in this matter relates to the
finding of the marijuana
on the first and then on the second
occasion. What happened in the valley and at the hospital is of far
lesser importance to the
merits of the arrest. Shortly after
the marijuana was found, on the first occasion on the version of the
police, plaintiff
fled, he being arrested after the finding of the
marijuana in the second room. What happened at Settlers Hospital, is
irrelevant
to the legality of the arrest itself, and relevant only to
the period of his detention.
28.
As I have already said plaintiff did not
fare well under cross-examination, nor was his demeanour impressive.
It was pointed out
to him that it had been pleaded on his behalf (and
never amended) that he had been arrested at his place of residence
described
in paragraph 1 of the pleadings as an address other than
that of the traditional healers. He denied, without conviction, that
no
marijuana had been in the room where he was found. During his
cross-examination, when in difficulty, he simply repeated his entire
version over and over again, denying the police’s version that
when he was caught at the valley he was having breathing
difficulties, and had been taken to the hospital for that reason.
There was no evidence led to support his version that he had been
injured in the assault, nor was he able to satisfactorily contest the
evidence of the police officer who put the charges to him
in hospital
that he had not been in handcuffs. He was also unable to meet the
evidence that he had not been confined to his bed
with drains from
his body. He was unable to explain why it had been mentioned on his
behalf in a Rule 37 minute that he been released
into the care of the
medical staff on 6 June 2022 at approximately just after midnight,
this completely contradictory to his version
of the evidence. He
maintained that he had not signed the arrest documents presented when
he was charged, which on the face of
it was devoid of creditability.
When in difficulties he would resort to asking whether what had been
asked of him was a “
question
”.
In short, he was an unimpressive witness, who struggled in
cross-examination and against his originally pleaded version
of the
events.
29.
The evidence of Ms.Krantz, similarly failed
to impress, it seeming that her evidence was tailored to meet that of
plaintiff, also
without regard to what had been pleaded on his
behalf.
30.
On the other hand, the state witnesses were
impressive, the evidence accorded with the documentation presented in
the trial bundle,
which was referred to, and in the context of what
had happened and against the probabilities made good sense when
compared with
that of the plaintiff and his witness. Applying the
standard approach to the evidence and contradictory versions, I have
no doubt
that that of the defendant is to be preferred. The
cross-examination of the plaintiff’s witnesses disclosed no
material differences
and did not cast that evidence in any doubt.
THE FINAL ANSALYSIS
31.
At the end of the day, on the evidence
which must prevail being that of the defendant, the question is
whether on the lawfulness
of the arrest issue, defendant’s
arrest of plaintiff was legitimate on the basis pleaded.
32.
Against the test which I have enunciated
above, there can be no doubt that the arresting officers were police
officers and that
they entertained a suspicion relevant to plaintiff
as pleaded. Not only did the police officers act on reasonable
inference,
they were entitled to take into account what they had
observed immediately before the arrest, during the surveillance and
took
into account all the surrounding circumstances. Whilst the
suspicion held by the police officers must be a reasonable one and
objectively
sustainable, this, in the sense that it must rest on
reasonable grounds, on an analysis of the relevant facts and
circumstances
and the police officers’ knowledge of marijuana,
it seems to me, clearly established that the necessary reasonable
suspicion
was clearly established.
33.
The plaintiff not only conceded that the
premises were his to the police officers, but consented to the search
of those premises,
and was unable to explain or contradict the
evidence of the police officers as to the presence of a substance
identified by the
experienced police officers as marijuana. The
initial finding of the substance identified as marijuana, caused
plaintiff to flee,
this clearly adding to the police officer’s
suspicion as to the fact that marijuana was present, but that
plaintiff was reasonably
suspected of a crime as required in section
40(1)(h) of the CPA.
34.
In my view, there is no basis for
concluding that the discretion to arrest was wrongly exercised. No
serious evidence or cross-examination
addresses this alternative
ground put up by the plaintiff in his pleadings, and the plaintiff
fell well short of satisfying the
onus he bore in this regard.
COSTS
35.
The costs of two counsel are usually
allowed where this is regarded as a “
wise
and reasonable precaution
”, and
where this is not regarded as “
luxury
”.
36.
In
this regard, as generally in respect of costs, the Court has a
discretion
[17]
.
37.
In
De
Naamloze Vennootschap Alintex v Von Gerlach
[18]
1958 (1) SA 13
(T) 13 the Court (referring to the previous
authorities) mentioned the following factors as some warranting the
granting of costs
of the second advocate; the length of the hearing
or argument, the importance of questions of principle or of law
involved and
the number of legal authorities quoted.
38.
In my view and in the Court’s
discretion the decision turns on the circumstances of each individual
case.
39.
Put
otherwise, was it proper and reasonable to brief two counsel in the
circumstances relevant to the matter, and the costs of two
counsel
should never be allowed as some kind of penalty analogous to an award
of attorney and client costs.
[19]
40.
As examples, the costs of two counsel may
not be allowed where the matter is of no unusual difficulty, or
straight forward on the
papers, or where the whole case turns on
simple issues of fact where little law is involved or where the
matter is of no great
difficulty or complexity.
41.
In the circumstances the costs of two
counsel in this matter should not be allowed, as this was in my view
not such as to warrant
this decision, on the facts, law or
complexcity.
CONCLUSION
42.
In the result, plaintiff’s claims
falls to be dismissed with costs.
43.
The scale of those costs is the ordinary
scale, the issue being whether such costs should include the costs of
two counsel.
In my view the matter warranted the attention of
an experienced counsel certainly but not that of two counsel on all
the considerations
relevant.
ORDER
a.
The plaintiff’s case is dismissed
with costs.
M.J. LOWE
JUDGE
OF THE HIGH COURT
Appearing on behalf of
the Plaintiff: Mr.
Mdeyide, instructed by Cloete and Co attorneys,
Grahamstown.
Appearing on behalf of
the Defendant: Ms. Ntsepe and Ms. Masiza,
instructed by Dullabh Attorneys, Grahamstown.
Date
heard:
1 – 3 February 2023.
Date judgment
delivered: 28 February 2023.
[1]
1986 (2) SA 805
(A).
[2]
At 818H-I; See also
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 367 (SCA).
[3]
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818H. This applies equally here as to
the suspicion issue.
[4]
1988 (2) SA 654 (SE)
[5]
At 658 E-H.
[6]
2014 (1) SACR 217
(SCA) at paragraphs 14 – 17.
[7]
Louw &
Another v Minister of Safety and Security & Others
2006
(2) SACR 178
(T);
Liebenberg
v Minister of Safety and Security
[2009]
ZAGPPHC 88 (18 June 2004).
[8]
Mabona
(Supra)
[9]
[2022]ZASCA
36 paras[33][40]
[10]
1984
(1) SA 437
(ECD) 440 – 441.
[11]
See also:
SFW
Group (supra)
.
[12]
Schwikkard, Juta, 4
th
Edition, § 30 4
[13]
1982 (3) SA 571 (T)
[14]
Page 577
[15]
1946 AD 390
at 396-7
[16]
In
cross-examination it was put to him that the hospital notes on
admission recorded that the suspect’s symptoms on admission
were shortness of breath. Plaintiff said he suffered from
asthma.
[17]
International
(Pty) Ltd v Lovemore Brothers Transport
CC
2000 (2) SA 408
(SE) 413H.
[18]
1958 (1) SA 13 (T) 13
[19]
Rand
Townships and Small Holdings (Pty) Ltd v Griebenow
1956 (2) SA 42
– 45.