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[2023] ZAECMKHC 35
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Ntlanjeni v Minister of Police and Others (3372/2018) [2023] ZAECMKHC 35 (23 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE NO. 3372/2018
In
the matter between:
SINETHEMBA
NTLANJENI
Applicant
and
MINISTER
OF POLICE
First
Respondent
MR
NTSHINKOSE
Second Respondent
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Third Respondent
JUDGMENT
Rugunanan
J
[1]
The applicant has
instituted action against the respondents in which he claims damages
for an alleged unlawful arrest, unlawful
detention and malicious
prosecution.
[2]
He approaches this
Court for seeking condonation of the late service of the notice of
his intention to institute legal proceedings
against the respondents
in accordance with section 3(2)
(a)
of the
Institution of Legal Proceedings against certain Organs of State Act
40 of 2002 (the Proceedings Act).
[3]
In seeking
condonation he contends that the claims constituted a continuous
cause of action or transaction that arose on 4 May 2009
being the
date of his arrest and detention which could not be regarded as
complete until 2 June 2016 when the Full Court of this
Division
upheld his appeal and set aside his conviction and sentence of 22
years’ imprisonment on two counts of rape including
one count
of kidnapping.
[4]
The
appeal judgment is cited as
Poni
and Others v The State
[1]
in which the applicant featured as third appellant.
[5]
There are several factors which are common
cause, alternatively not in dispute, namely:
5.1
that the requisite ‘jurisdictional facts to launch action based
on malicious prosecution,
unlawful arrest and detention arose [on 2
June 2016] upon the setting aside of the conviction and sentence’
(this being conceded
in the applicant’s heads of argument);
5.2
that the applicant’s statutory notices were not served within
six months of the date
on which the appeal was upheld; and
5.3
relevant to the second respondent, Mr Ntshinkose, that
he
is an organ of state as defined in section 1 of the Proceedings Act.
It is asserted in answer that he was never served with a
statutory
notice or summons – this not being countered in reply.
[6]
The application is
opposed, the respondents contending that the requirements in section
3(4)
(b)
of the Proceedings Act have not been met.
Background
[7]
The applicant was
arrested on 4 May 2009 in Port Elizabeth (now Gqeberha) by members of
the South African Police Service (SAPS),
among them the second
respondent, Mr Ntshinkose. He also alleges that his detention
commenced on that date and terminated on 2
June 2016 when his
convictions for rape and kidnapping – for which the
respondents’ employees allegedly maliciously
charged and
prosecuted him and for which he was sentenced on 19 January 2011
to an effective 22 years’ imprisonment
in the High Court –
were overturned by the Full Court on appeal.
[8]
In all, from date of
his arrest until the date on which the appeal was finalised the
applicant had been detained in custody for
7 years.
[9]
The applicant issued
summons out of this Court on 13 November 2018. Although claiming that
summons was served on the respondents
on 19 December 2018, 6
April 2019 and 17 May 2019, he does not identify the date of service
applicable to each respondent.
[10]
In answer, the
respondents identify service effected on 19 December 2018 and 5
August 2019 respectively on the Minister and
the Provincial
Commissioner of the South African Police Service, and on the NDPP on
16 April 2019. These assertions are not countered
by the applicant in
reply.
[11]
The
applicant’s pleaded compliance with the notice requirements of
the Proceedings Act, was met with an objection by the respondents.
Regarding the claims based on the arrest and detention the Minister
objected by way of a special plea to the effect that the notice
was
not served within the six months stipulated in terms of section
3(2)
(a)
and that these claims have become prescribed under the Prescription
Act 68 of 1969
[2]
(the
Prescription Act).
[12
]
The objection in the special plea taken by
the Minister was also taken on behalf of Ntshinkose.
[13]
Regarding the claim for malicious
prosecution the respondents’ objection to service of the
statutory notice was taken in a
notice under Uniform
rule 30
, and in
so far as the applicant alleged compliance with the notice
requirement, this was denied in the respondents’ plea.
Prescription not being in issue, respondents contending instead for
prejudice and the absence of good cause.
The legislative
context
[14]
Section 3(4)
(b)
circumscribes a court’s power to grant condonation by requiring
that it be satisfied that –
(i)
the debt has not been extinguished by prescription;
(ii)
good cause exists for the failure by the creditor (to serve the
statutory notice
in terms of
section 3(2)
(a)
or to serve a
notice that complies with the requirements of
section 3(2)
(b)
);
and
(iii)
the organ of state was not unreasonably prejudiced by the failure.
[15]
The
party seeking condonation (an indulgence) bears the onus to satisfy
the court in respect of each of these requirements. They
are
cumulative and a court may only exercise its discretion to condone
non-compliance if all three requirements are met.
[3]
If any of the requirements are absent, the court may not exercise its
discretion in favour of the defaulting party.
[4]
[16]
Approaching the matter according to the
legislative construct I turn to address these requirements hereunder.
Prescription
[17]
The applicant’s approach to the
prescription issue is two pronged.
[18]
In the first instance he disputes that his
claims have prescribed and argues that the claims for unlawful
arrest, subsequent detention
and malicious prosecution constitute a
continuous transaction or single cause of action which could not be
regarded as complete
until the outcome of the appeal to the Full
Court, its judgment signifying the successful termination of the
criminal proceedings
in his favour.
[19]
In the second instance the applicant relies
on
sections 12(3)
and
12
(4) of the
Prescription Act. Common
to the
arguments founded on these prescripts is the applicant’s
acknowledgment that the jurisdictional facts for instituting
an
action based on each of the abovementioned claims arose upon the
successful outcome of the appeal process. Relying however on
section
12(3)
, he asserts that it was only during July 2018 that he acquired
knowledge of the statutory notice requirement as also the identity
of
the respondents and the facts giving rise to the cause of action. As
for reliance on
section 12(4)
, he contends that his claim is for a
debt based on the commission of an alleged sexual offence and is
unaffected by extinctive
prescription.
[20]
The applicant’s purported reliance on
sections 12(3)
and
12
(4) of the
Prescription Act is
dealt with later
in this judgment. I proceed at the outset to deal with the first part
of his argument.
A continuous
transaction/single cause of action
[21]
The
notion of a continuous transaction relied on by the applicant
suggests that his arrest and detention by
Ntshinkose
constituted the factual and legal cause (the former being
sufficiently closely linked to the harm suffered by the applicant),
for attributing liability to the Minister. For that reason the
applicant seeks to hold the Minister liable for the entire period
of
detention based on the anterior arrest. The fulcrum of this argument
appears to be the majority decision of the Constitutional
Court in
De Klerk
v Minister of Police
[5]
.
[22]
In my view the
argument does not pass muster given that the facts in the present
matter are not on par with those in
De
Klerk
.
[23]
De
Klerk
dealt
with a specific factual scenario pertaining to the liability of the
Minister for the detention of the claimant after his first
appearance
in court. A significant distinguishing attribute in
De
Klerk
was that the Minister in that matter was held liable because the
arresting officer had the requisite knowledge and foresight to
appreciate that the question of the release of the claimant on bail
would not be considered by the reception court in which the
claimant
made a first appearance.
[6]
My
observation is that the applicant’s founding affidavit does not
come anywhere close to suggesting that
Ntshinkose
had the requisite knowledge and foresight in circumstances similar to
those in
De
Klerk
.
[24]
Moreover, there is an
absence of averments indicating that
Ntshinkose
’s
conduct influenced the decision of the presiding officer (or even the
attitude of the prosecutor) at first appearance to
remand the
applicant in custody.
[25]
Another
distinguishing factor is that the offence pertaining to an assault
for which the claimant in
De
Klerk
was
arrested bears no relation to the offence of rape for which the
applicant was arrested. The latter offence is implicated by
section
60(11)(a)
of the
Criminal Procedure Act 51 of 1977
regarding the onus
provisions which place the burden on an accused to adduce evidence
which satisfies the court that exceptional
circumstances exist which
in the interests of justice permit his release.
[26]
The distinguishing
features and paucity of facts in the present case renders applicant’s
reliance on
De
Klerk
misguided.
De
Klerk
did
not, on my understanding, deal with the question whether a claim for
unlawful arrest, subsequent detention and malicious prosecution
was a
continuous transaction or cause of action. I am therefore of the view
that the proposition which the applicant contends for
is
insupportable for the following reasons.
[27]
An
unlawful arrest is not a continuing wrong, nor is it inextricably
linked to an alleged unlawful detention that may follow.
[7]
The consequence is that the arrest, detention and prosecution of the
applicant are discrete causes of action with their own prescriptive
periods.
[28]
While there appears
to be a dispute of fact regarding the applicant’s arrest, which
on the version of the Minister occurred
on 5 June 2009, this makes no
difference to the question of extinctive prescription. The
applicant’s claim for unlawful arrest
accrues on the date of
his arrest. By all accounts his claim against the Minister and
Ntshinkose
for his alleged unlawful arrest prescribed on 3 May 2012 (or 4 June
2012) well before action was instituted.
[29]
In
relation to the claim for the alleged unlawful detention, the
approach with a continuous wrong is that it results in a series
of
debts arising from moment to moment or day to day as long as the
wrongful conduct endures. The applicant’s claim is for
separate
debts arising on each day of his detention. The continued detention
gave rise to a separate cause of action for each day
of the period he
was detained in custody.
[8]
On
the facts, his unlawful detention occurred on 4 May 2009 upon his
arrest, with further claims arising on each subsequent date
of his
detention until 2 June 2016. Summons was served on the Minister on
19 December 2018. Although the portion of the applicant’s
claim for 4 May 2009 to 18 December 2015 has prescribed, the same
cannot be concluded for his entire claim for the period 19 December
2015 to 2 June 2016 as against the Minister. However, as against
Ntshinkose,
the claim for the entire period
4
May 2009 to 2 June 2016 has prescribed because no summons was
served on him.
[30]
In
relation to the claim for malicious prosecution, that claim has not
prescribed considering that prescription begins to run when
the
prosecution fails
[9]
which in
this instance occurred once the Full Court had handed down its
judgment.
The
section 12(3)
and
12
(4) argument
[31]
Section 12(3)
of the
Prescription Act stipulates
that a debt shall not be deemed to be due
until the creditor has knowledge of the identity of the debtor and of
the facts giving
rise to the debt. The section is subject to the
proviso that a creditor shall be deemed to have such knowledge if he
could have
acquired it by exercising reasonable care.
[32]
In
argument the respondents correctly contended that the applicant’s
reliance on
section 12(3)
is misplaced. The section imposes a duty on
a creditor to exercise reasonable care to obtain knowledge of the
identity of the debtor
and the facts from which the debt arises. As
will be shown below, it is impermissible for a creditor, as with the
applicant in
this case, to postpone the commencement of the running
of prescription by his failure to take necessary steps.
[10]
[33]
In
Drennan
Maud & Partners v Pennington Town Board
[11]
it is stated that:
‘
Section
12 (3) of the Act provides that a creditor shall be deemed to have
the required knowledge “if he could have acquired
it by
exercising reasonable care.” In my view, the requirement
“exercising reasonable care” requires diligence
not only
in the ascertainment of the facts underlying the debt, but also in
relation to the evaluation and significance of those
facts. This
means that the creditor is deemed to have the requisite knowledge if
a reasonable person in his position would have
deduced the identity
of the debtor and the facts from which the debt arises.’
[34]
The adverse operation
of the section does not depend upon a creditor’s subjective
evaluation of the presence or absence of
‘knowledge’.
[35]
The
standard is not subjective – it is objective.
[12]
[36]
The applicant’s stance is that it was
only during July 2018 that he acquired the requisite knowledge. This
occurred consequent
to initial consultation with his present
attorneys Ayabonga Koswana on 12 May 2018 whereafter they initiated
investigations on
his behalf. Although the relevant statutory notices
were only dispatched on 24 August 2018 more than 6 months after 2
June 2016,
the applicant, on his reckoning, maintains that by the
time he acquired such knowledge, the three year period for extinctive
prescription
in respect of his claims had not interceded.
[37]
Indications
in the applicant’s founding affidavit are that prior to 12 May
2018 he was aware of the respondents’ identities
as debtors in
this matter and the facts from which the debts arose.
[13]
Even if he had not been aware of the identities of the debtors and
the facts giving rise to the debts, there is no evidence indicating
that he could not have acquired them by exercising reasonable care.
[38]
It brooks of no doubt that the applicant
was legally represented during the conduct of his criminal trial
considering that he does
not assert the contrary. Nor is there any
doubt that he was represented by Legal Aid South Africa during the
prosecution of his
appeal. Moreover, in their answering affidavit the
respondents have attached a letter dated 12 January 2016 from
attorneys Faltein
in which notice of intended legal proceedings is
directed at the NDPP in respect of the applicant’s claim for
malicious prosecution.
[39]
What the letter signifies is that the
applicant had access to legal representation during his period of
incarceration. His protestation
that the attorneys were instructed by
his former co-accused in the impugned criminal case who inadvertently
included his name,
lacks credulity. So too is his assertion that
Legal Aid did not advise him of his right to institute a civil
action. In this regard
he does not contend that he was precluded from
seeking their advice.
[40]
The
upshot of these observations is that the applicant’s
incarceration did not on its own prevent him from giving instructions
to an attorney to investigate or institute civil proceedings on his
behalf.
[14]
The applicant does
not contend that he was prevented from having access to an attorney
or vice versa while incarcerated.
[15]
His assertions of the knowledge requirement being satisfied in July
2018 amounts to a manufactured attempt to
postpone
the commencement of the running of prescription in circumstances
where his founding affidavit, objectively considered,
indicates a
manifest failure to take reasonable steps for the enforcement or
preservation of his own interests – and on its
own, indicates
that his incarceration did not prevent the running of prescription.
[41]
Turning to address
the applicant’s reliance on
section 12(4)
of the
Prescription
Act, the
section, quoted in relevant part, reads:
‘
Prescription
shall not commence to run in respect of a debt based on the
commission of an alleged sexual offence as contemplated
in …
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
2007
, during the time in which the creditor is unable to institute
proceedings because of his or her mental or psychological condition.’
[42]
The provision makes it clear that it is
meant to operate in circumstances where a debt has arisen following
the commission of a
sexual offence by a debtor against a creditor and
resulting in the creditor suffering mental or psychological
impairment that prevents
the creditor from instituting proceedings to
claim the debt.
[43]
The applicant was not the victim of a
sexual offence. Where he states in his founding affidavit that he was
‘not in a good
psychological state’ upon his release from
incarceration and that he experienced difficulty reintegrating within
his community,
he does not lay a sufficiently candid basis for
postponing or interrupting prescription. His failure to do so must be
considered
in the context of the views expressed in the preceding
paragraphs indicating that he had reasonable opportunity,
notwithstanding
incarceration, for seeking legal advice and
assistance prior to his release.
Good cause
[44]
The claims based on malicious prosecution
and for that portion of the applicant’s incarceration from 19
December 2015 to 2
June 2016 have not prescribed. This situation
requires an examination as to whether the applicant has discharged
the obligation
to satisfy the court that good cause exists for his
failure to comply with the provisions of the Proceedings Act.
[45]
The applicant attempts to satisfy this
requirement by putting forward a version in his founding affidavit to
the effect that after
his release from incarceration, and during May
2018, he met an old friend to whom he narrated his story. Moved by
the applicant’s
plight, the friend facilitated contact with
attorneys Ayabonga Koswana. Following consultation with them on 12
May 2018 and their
follow up with the applicant during July 2018 the
applicant, on the strength of their investigations, became aware of
the statutory
notice requirement and the identity of the respondents
and the facts giving rise to his cause of action. On his instructions
the
attorneys dispatched by registered mail notices in accordance
with section 3 of the Proceedings Act to the Minister c/o the
National
Commissioner of the South African Police, and to the NDPP.
The notices are dated 24 August 2018.
[46]
In a notice under
Uniform rule 30 dated 29 July 2019 the NDPP communicated its
objection to the applicant’s alleged compliance
with the
provisions of section
3(2)
(a)
of the Proceedings Act.
[47]
On 14 July 2020 the Minister filed a
special plea of non-compliance with the provisions of section
3(2)
(a)
of the Act. For its part the NDPP merely denied the applicant’s
allegation that he complied with the statutory notice requirement.
[48]
The application for
condonation was only launched on 5 October 2020 some 2½ months
later.
[49]
No explanation is
provided for this delay.
[50]
In the light thereof the applicant’s
prospects of success as an element of good cause must be addressed.
[51]
The
concept of good cause was examined in
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[16]
.
The prospects of success relevant to good cause was explained as
follows:
‘
The
prospects of success of the intended claim play a significant role –
strong merits may mitigate fault; no merits may render
mitigation
pointless. The court must be placed in a position to make an
assessment of the merits in order to balance that factor
with the
cause of the delay as explained by the applicant. A paucity of detail
on the merits will exacerbate matters for a creditor
who has failed
to fully explain the cause of the delay. An applicant thus acts at
his own peril when a court is left in the dark
on the merits of an
intended action, e.g. where an expert report central to the
applicant’s envisaged claim is omitted from
the condonation
papers.’
[52]
In his founding affidavit, save for
asserting that he has ‘high prospects of success’, the
applicant proffers no meaningful
factual detail to set up a prima
facie case of unlawful arrest, unlawful detention and malicious
prosecution; and where reference
is made to the Full Court judgment –
which in any event made no pertinent findings relevant to the
elements of these causes
of action – the judgment, without
intending criticism, merely represents the opinion of another court
and is inadmissible
in these proceedings.
[53]
In argument, the applicant’s failure
to address the issue of the absence of reasonable or probable cause
as one of the jurisdictional
elements in a cause of action for
malicious prosecution was straightforwardly drawn to the Court’s
attention.
[54]
A reading of the appeal judgment indicates
that its outcome turned on the credibility of the complainant as a
single witness on
the issue of identification. Exactly how that would
translate into an absence of reasonable and probable cause is the
question
to which the applicant ought to have applied his mind in
seeking to persuade this Court that good cause exists for granting
condonation.
[55]
For reasons aforesaid, it cannot be
expected of this Court to draw inferences from the findings of the
Full Court and to speculate
on whether the applicant has a cause of
action, or more precisely whether the requisite jurisdictional
element/s are evident in
satisfaction of good cause.
[56]
Insofar as the applicant places store on
the judgment, it does not assist him.
[57]
In my view the applicant has fallen short
of the requirements in
Rance
and it would be a matter of conjecture to determine that there are
prospects of success in satisfaction of good cause.
Unreasonable prejudice
[58]
It
is apposite to quote what is stated in
Madinda
v Minister of Safety and Security
[17]
:
‘
The
approach to the existence of unreasonable prejudice … requires
a common sense analysis of the facts, bearing in mind
that whether
grounds of prejudice exist often lies peculiarly within the knowledge
of the respondent. Although the onus lies on
an applicant to bring
the application within the terms of the statute, a court should be
slow to assume prejudice for which the
respondent itself does not lay
a basis.’
[59]
In addressing this issue the applicant
states in his founding affidavit:
‘
34.3.1
[T]he evidence is largely preserved in that the police and
criminal
case records relating to my arrest, detention, prosecution,
conviction and successful appeal are available. The said criminal
records including transcripts are available in the archives of the
registrar of this Honourable Court under case number CA 306/2012.
I
have even attached a copy of the appeal judgment… as a clear
demonstration of the availability of the records. The police
officers
who unlawfully arrested me as well as the public prosecutors who
maliciously prosecuted me are still available in the
service of the
respondents as employees. Their names can be gleaned from the records
of the appeal criminal court file …
in the possession of the
registrar and one of the police officers involved is the second
respondent whom I believe is still based
in Port Elizabeth.
34.3.2
Secondly, the respondents have easy access to the said police docket
and criminal records as I have mentioned above.
34.3.3
Thus I submit that the respondents have not been unreasonably
prejudiced …’
[60]
The Full Court judgment does not constitute
proof of the availability of the records which the applicant
maintains are available
in the archives of the registrar of this
Court. As at the date on which this application was argued, no
assurance was given that
the said records are available, or that the
applicant has obtained them or secured their preservation and
safekeeping, or that
the docket survives on the SAPS Crime
Administration System and can be retrieved by tracking its reference
number (also known as
a CAS number).
[61]
In answer to the applicant’s
averments the deponent to the respondents’ answering affidavit
states that the charge sheet
and details relating to the bail
application and recordings are no longer available. He attaches an
affidavit from an incumbent
employed in the Legal Affairs Division of
the National Prosecuting Authority to confirm this. He mentions that
a significant period
of 12 years have passed since the applicant’s
arrest. In that regard he points out the potential difficulty which
employees
of the respondents would encounter if they were required to
recall minute detail in the event of proceeding to trial. Moreover,
Ntshinkose is no longer in the service and employment of the
Minister.
[62]
The substantial lapse of time long after
events relating to the applicant’s arrest, detention and
prosecution must obviously
have an effect on human recollection and
cannot, in the circumstances of this matter be downplayed. The
prejudice occasioned to
the respondents is not anything speculative.
It is based on a common sense approach to the matter stemming from
the practical difficulty
of expecting witnesses to testify on events
without relevant documentation which may assist in recollection.
Conclusion
[63]
I am not persuaded that the applicant has
met the requirements of section 3(4)
(b)
of the Proceedings Act.
[64]
The applicant’s papers, to say the
least, are confusing and purposely scant in detail.
[65]
The applicant sought final relief and made
no request to refer any issues to oral evidence notwithstanding
numerous disputes of
fact presenting themselves on the papers,
particularly those relevant to prescription, good cause and
prejudice.
[66]
These
disputes fall to be dealt with in accordance with the approach
conventionally known as the ‘Plascon-Evans rule’
set out
in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[18]
,
namely:
‘
[W]here
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant’s affidavits which have been admitted
by the
respondent, together with the facts alleged by the respondent,
justify such an order.’
[67]
This
principle applies even where the onus may be on an opposite party
[19]
(as in this instance where the respondents are required to lay a
basis for claiming prejudice).
The order
(a)
The application is dismissed with
costs.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant:
M.
Mayekiso
Instructed
by
Ayabonga
Koswana Attorneys
c/o
Mgangatho Attorneys
Makhanda
(Ref:
A. Mgangatho)
For
the Respondents:
C.
Goremusando
Zilwa
Attorneys
Makhanda
(Ref:
T. Zilwa)
Date
heard:
17
November 2022
Date
delivered:
23
March 2023
[1]
[2016] ZAECGHC 39.
[2]
Per section 11(d).
[3]
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) para 16;
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 (4) SA 109
(SCA) para 11;
Makhatholela
v Minister of Police and Another
[2022] ZAGPJHC 193 para 24.
[4]
Compare
Minister
of Police and Another v Yekiso
2019 (2) SA 281
(WCC) para 35.
[5]
De
Klerk v Minister of Police
[2019] ZACC 32
paras 24-25.
[6]
De Klerk supra paras 76-81.
[7]
See
Makhatholela
supra
para 29 and the authorities cited in the footnotes thereto.
[8]
See
Makhatholela
supra
para 29 and the authorities cited in the footnotes thereto.
[9]
Human v
Minister of Safety and Security
2013 JDR 2302 (GNP) para 15.
[10]
Gunase
v Anirudth
2012
(2) 398 (SCA) para 14.
[11]
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 209F-G.
[12]
Leketi
v Tladi NO & Others
[2010] 3 All SA 519
(SCA) para 18.
[13]
Founding affidavit, paras 18-23.
[14]
Compare
Minister
of Police and Another v Yekiso supra
para 24.
[15]
Compare
Skom
v Minister of Police and Others, In Re: Singatha v Minister of
Police and Another
[2014] ZAECBHC 6 para 7.
[16]
2010
(4) SA 109
(SCA) para 37.
[17]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) para 21.
[18]
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634E-635C.
[19]
Aetiology
Today CC t/a Somerset Schools v Van Aswegen and Another
1992 (1) SA 807
(WLD) at 809J.