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[2024] ZAKZPHC 19
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Augustyn v TWK Agri Insurance (Pty) Ltd (9470/2023P) [2024] ZAKZPHC 19 (18 March 2024)
FLYNOTES:
CIVIL LAW – Set-off –
Insurance commission
–
Applicant
claiming commission not paid – Under
independent insurance marketer’s agreement –
Applicant not securing cover for fields damaged by hail –
Respondent paying excess for indemnity insurance when
client paid out for damaged fields – Respondent arguing that
excess was liquidated amount and arguing set-off against
the
commission – Applicant was independent contractor and denies
that his error was cause of farmer’s loss –
No mutual
indebtedness existing between parties and there can be no set-off
– If loss suffered by respondent, it is
delictual and will
have to be determined by court – Respondent ordered to pay
the commission due.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
9470/2023P
In the matter between:
PHILIP
FREDERICK
AUGUSTYN
APPLICANT
and
TWK
AGRI INSURANCE (PTY)
LIMITED
RESPONDENT
(Registration Number:
1999/014168/07)
ORDER
The following order is
granted:
1.
Judgment is entered against the
respondent in favour of the applicant for payment of the amounts of
R59 321.28 and R210 311.32.
2.
The respondent is to pay the
applicant’s costs.
JUDGMENT
MOSSOP
J:
Introduction
[1]
The applicant and his wife
previously owned an insurance brokerage business in Ladysmith,
northern KwaZulu-Natal, which, inter alia,
dealt with agricultural
insurance. During February 2016, they sold their business to the
respondent. It was a condition precedent
to that sale that the
applicant concludes an independent insurance marketer’s
agreement with the respondent (the agreement)
and that he render
those services to it. The agreement was concluded as required. For
the services that he would render to the
respondent, it was
ultimately agreed that the applicant would be paid
an
amount of R15 000 per month
plus
50 percent of the commission earned arising from new business that he
wrote for the respondent.
[2]
Over the period from 1 February
2016 to 30 April 2023, the applicant served the respondent in this
capacity until his services were
lawfully terminated by the
respondent in accordance with the provisions of the agreement.
[3]
In this application, the applicant
claims from the respondent commissions allegedly earned by him but
not paid by the respondent.
The respondent denies that it presently
owes the applicant anything. It admits that at one stage it was
indebted to the applicant
but that he, in turn, was indebted to it.
By virtue of the automatic operation of set-off, the respondent
contends that it is no
longer indebted to the applicant. The
applicant denies that there ever was a mutual indebtedness, but
asserts that even if there
was, it was not in a liquidated amount.
The
notice of motion
[4]
The applicant claims the following
relief from the respondent:
‘
A
rule nisi do issue calling upon the abovenamed respondent to show
cause, why an Order should not be made in the following terms:
1.1
The Respondent be and is hereby
interdicted and restrained from seeking a set-off of any alleged
indebtedness that is due to it
as a result of the insurance claim
made by it in respect of a claim submitted by Mr Fick;
1.2
The Respondent is directed
forthwith to make payment to the Applicant the sum of R59 321-28 and
R210 311-32 for harvest commissions,
being (sic) amount due, owning
and payable in respect of commission earned by the applicant.
1.3
The Respondent is directed to pay
the costs of this application on the scale as between attorney and
client.’
[5]
The applicant no longer seeks the
interdictory relief claimed in sub-paragraph 1.1 of the notice of
motion and nothing more need
be said about it. No rule was ever
issued in the applicant’s favour and thus what is now sought is
a final order.
The
practice directive
[6]
In the week prior to the matter
being argued, as required by practice directive 9.4.2, I received a
notice (the notice) from the
applicant’s attorneys that
identified the issue to be argued before me. I was informed that the
sole issue that I was to
decide upon was:
‘…
whether
the respondent is entitled to, by virtue of the provisions of common
law set-off, retain the commission due to the applicant.’
[7]
Practice directive 9.4.2 provides
as follows:
‘
The
party responsible for enrolling the matter shall, at the same time,
deliver a list, agreed to by all the parties, of those issues
in
dispute and those which are common cause.’
The reference to ‘at
the same time’ is a reference to the obligation visited upon
the party that enrolled the matter
on the opposed motion roll to
inform the registrar whether the matter is proceeding.
[8]
I, naturally, assumed that there
was but a single issue to be determined. In this I was incorrect as
when the matter was called,
Mr Jacobs, who appeared for the
respondent, stated that the respondent’s attorneys had not
agreed to the content of the notice.
Ms Ploos van Amstel, who
appeared for the applicant, indicated that she believed that the
respondent had, indeed, agreed and that
what was stated in the notice
was the only issue to be determined. Mr Jacobs, however, indicated
that the respondent also did not
agree with the quantum of the
indebtedness of the respondent alleged by the applicant in his notice
of motion and that this was
an issue that also needed to be
determined.
[9]
It need hardly be said that this is
a most undesirable state of affairs. The purpose of defining issues
is a salutary one, intended
to assist the court in its preparations
in focussing on the true issues. The court is overwhelmed with
incoming work and has limited
time within which to prepare. Often
issues regarded at one stage as being of critical importance to the
resolution of a matter
are raised, but lose their initial lustre as
the date of argument nears. If the court is not informed of those
issues that have
fallen by the wayside it may unnecessarily devote
time to them. Parties must therefore agree on what the issues are and
inform
the court accordingly.
[10]
That being said, I did not
understand Mr Jacobs to deny the validity of the issue identified by
the applicant in the notice. That
issue appears to be the central
issue in the matter. The point made by Mr Jacobs was that it was not
the only issue. I shall therefore
firstly consider the issue of the
quantum of the respondent’s indebtedness to the applicant and
thereafter the issue of set-off.
The
first issue: the extent of the respondent’s indebtedness
[11]
While there is a dispute over how
much was owed by the respondent to the applicant, there is no dispute
that he was, at least, at
one stage, owed money by the respondent.
That this must be so is evidenced by the fact that the respondent
raises set-off as a
defence to the applicant’s claim.
Claiming
set-off, of necessity, requires an admission of its own indebtedness
by the party invoking it.
[12]
The size of the mutual debts is
relevant, for if they are in different amounts and set-off is found
to operate, then the smaller
debt and its original obligation are
extinguished and the larger debt is reduced by the amount of the
smaller debt. In the latter
event, judgment could then notionally be
entered in respect of the remaining balance.
[13]
The applicant claims in his notice
of motion that the respondent owes him the amounts of R59 321.28 and
R210 311.32, giving a total
indebtedness of R269 632.60. These
are the figures reflected in sub-paragraph 1.2 of the notice of
motion. The applicant explains
that the amount of R59 321.28 is
comprised of two identical amounts, namely two commissions in the
amount of R29 660.64 each. The
one amount is for commission which was
due in May 2023 and the other is for commission which was due in June
2023. The second amount
claimed in the notice of motion of
R210 311.32 is described by the applicant as being due to him as
a ‘harvest commission’.
[14]
Considering the two amounts of R29
660.64, the respondent admits one of them, for it acknowledges that
it owed the applicant one
payment in that precise amount. It is not
clear, however, which month’s commission is admitted.
[15]
It seems to me that the other
commission payment of R29 660.64 must be deemed to be admitted by the
respondent by virtue of the
way that it has answered to the
applicant’s allegations in his founding affidavit that allege
that the two identical commissions
are due to him. In its answering
affidavit, when dealing with the sub-paragraph in the founding
affidavit that allege the two identical
commissions, the respondent
states the following:
‘
7.5
Whilst the aim of the application is noted, it is denied that the
applicant is entitled to any
of the relief sought.
7.6
The relief sought is fatally flawed, ill-conceived and in fact not
competent in law.’
This
is a general rejection of the applicant’s claim that does not
specifically address the precise amounts identified and
claimed by
the applicant. It is trite that where an allegation is not
specifically addressed, it is taken to be admitted.
[1]
The entitlement of the applicant to the second commission of
R29 660.64 must therefore be taken to be admitted.
[16]
The applicant appears to concede
the correctness of the ‘harvest commission’ of R210
311.32 because in two different
documents that it caused to be
brought into existence, it confirms that this is the amount due by it
to the applicant in this regard.
In a letter dated 7 February 2023,
written by the respondent to the applicant, the respondent made a
proposal to the applicant:
‘
Dit
word voorgestel dat die kapitaal verskuldig verhaal word van die
2022/23 oesversekering kommissie wat aan jou betaalbaar is,
in die
bedrag van R210,311.32 …’
In an attachment to an
acknowledgement of debt that the respondent later prepared for the
applicant to sign (which he declined to
sign), the following wording
appears:
‘
Totale
kommissie verdienste vir 2022/2023 seisone in die bedrag van
R456,087.68 waarvan R210,311.32 kommissie betaalbaar is aan
Philip
Augustyn …’.
[17]
However, in its answering
affidavit, the respondent does not mention the amount of R210 311.32.
Instead, it alleges that what it
owes the applicant for the harvest
commission is the amount of R203 190.90. Why there is a difference of
R7 120.42 remains
unexplained in the face of the respondent’s
own admissions as to what is due to the applicant. It appears to me
that in the
absence of any explanation for the difference, the
respondent must be held to the figure that it has twice freely
acknowledged
as being due to the applicant.
[18]
I therefore find that the applicant
has established on a balance of probabilities that the respondent is
indebted to him in the
amounts of R59 321.28 and R210 311.32.
The
second issue: set-off
[19]
This
is the principal defence raised by the respondent to the applicant’s
claim. For compensatio, or set-off, to operate there
must be two
liquidated debts, due and payable and mutually
owed
by the same pair of persons.
[2]
The party claiming set-off bears the onus of proving it. Set-off
cannot
occur
where one, if not both, of the debts is unliquidated, e.g. a claim
for damages, or where what is required is a:
‘…
prolonged
investigation into disputed questions of fact.’
[3]
[20]
The
respondent claims that set-off operates automatically, that it has
already occurred and that it therefore is not presently indebted
to
the applicant. There are, in fact, two competing theories about how
set-off operates.
[4]
The first
theory, embraced by the respondent, holds that set-off operates
automatically and
ipso
iure
.
The second theory holds that it does not occur automatically, but
must first be invoked by one party but that, once invoked, it
has
retrospective effect. The weight of authority seems to favour the
first theory. Indeed, in
Herrigel
NO v Bon Roads Construction Co (Pty) Ltd
,
[5]
the court went so far as to state that ‘it is trite law that
set-off operates automatically’. Whichever of the two
theories
is applied, it appears to me that there are not many practical
consequential differences that result from one theory being
favoured
over the other: in either event, the reciprocal debts are
extinguished when they first become capable of set-off.
The
position of independent contractors
[21]
In
Colonial
Mutual Life Assurance Society v MacDonald
,
[6]
the
Appellate Division confirmed that in our law, while a principal is
liable for the acts of an agent who is its servant, a principal
is
generally not liable for the acts of an agent who is an independent
contractor.
This
was confirmed in
Stein
v Rising Tide Productions CC
,
[7]
when Van Heerden J stated the position to be the following:
‘
As
a general rule, an employer
is
vicariously
liable for the delicts of his or her employee acting in the course
and scope of the latter's employment, while, in general,
an employer
is
not
vicariously
liable for the negligence or wrongdoing of an independent contractor
employed by him or her. The main distinction between
an employee
(servant) and an independent contractor appears to lie in the fact
that the former undertakes to render personal services
to the
employer, while the latter undertakes to perform a certain specified
piece of work or to produce a certain specified result
for the
employer. Unlike an employee, an independent contractor is generally
not subject to the control or the instructions of
the employer as to
the manner in which he or she performs the work or produces the
result…’
[22]
There
may, however, still be instances where an employer may be liable for
the acts of an independent contractor. In
Saayman
v Visser
,
[8]
Navsa JA pointed out that in English law there is an exception to
this principle where:
‘…
the
employer himself/herself has been negligent in regard to the conduct
of the independent contractor which caused harm to a third
party.’
[9]
The
test for negligence in such circumstances was succinctly formulated
in
Kruger
v Coetzee
[10]
by Holmes JA when he explained that
‘
For
the purposes of liability culpa arises if -
‘
(a)
a
diligens
paterfamilias
in
the position of the defendant –
(i)
would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss;
and
(ii)
would
take reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.’
[11]
[23]
In
the more recent matter of
Chartaprops
16 (Pty) Ltd and another v Silberman
,
[12]
Ponnan JA reaffirmed the principle that a principal is normally not
liable for the delicts of an independent contractor whose service
he
has engaged and indicated that he did not support the concept of a
non-delegable, or personal duty, being visited upon a principal.
This
concept holds that if a person was trying to have a piece of work
done, the doing of which imposed on him a duty, he cannot
escape the
responsibility of discharging that duty by delegating it to an
independent contractor. To Ponnan JA, the effect of this
would
enable:
‘…
a
plaintiff to outflank the general principle that a defendant is not
vicariously responsible for the negligence of an independent
contractor where the causative agent of the negligence relied on was
not an employee of the defendant but an independent contractor.’
[13]
Ponnan
JA continued and asserted that a definite distinction must be
maintained between the vicarious liability of an employer for
the
civil wrongs of his employee, and the position of a principal who
employs an independent contractor.
[24]
Ponnan
JA proceeded to find in
Chartaprops
that
whether
an
employer should be held liable for the acts of an independent
contractor must be determined by applying the principles laid down
in
Langley
Fox Building Partnership (Pty) Ltd v De Valence
,
[14]
namely
that
the employer is required only to exercise that standard of care which
the circumstances demand. This required no more than
inquiring
whether the principal himself has not perhaps been negligent in
respect of the damage caused by the independent contractor.
Thus,
where the facts demonstrated the existence of an abnormally high
risk, our law would expect greater vigilance on the part
of the
principal, i.e. a ‘higher’ standard of care, in order to
prevent foreseeable harm from materialising, and vice
versa where the
risk of harm or danger is low.
[25]
The
law is thus settled that a principal is generally not liable
for
the civil wrongs of an independent contractor, except where the
principal was personally at fault.
[15]
[26]
In its answering affidavit, the
respondent stated the following proposition:
‘
In
law, Respondent also attracted liability for the acts or omissions of
Applicant, which may cause any client to suffer damages.’
The
basis for that conclusion was not stated, and, given the nature of
the relationship between the applicant and the respondent,
dealt with
below in some detail, the basis for this conclusion ought to have
been disclosed. It may well be that there is some
statutory authority
that serves as the foundation for that conclusion, but if that is the
case, it was never mentioned and does
not form part of the
respondent’s defence. It is trite that it is not the court’s
function to go beyond the parameters
of the dispute framed by the
parties in their affidavits.
[16]
The
relationship between the applicant and the respondent
[27]
The relationship between the
parties is defined by the terms of the agreement. That document
immediately makes it plain what the
nature of the relationship was:
‘
2.1
The company shall contract with the
consultant and the consultant shall provide services to the company
in the capacity and form of independent insurance marketer.
2.2
No expectation of employment is created by this contract or by the
consultant’s services
with the company. The consultant agrees
and certifies that the consultant is not entitled in fact or in law,
nor does the consultant
have any expectation of, employment with the
company, and is an independent consultant with, and independent
contractor to the
company.
2.3
The consultant is not entitled to any of the employment benefits and
conditions applicable to
the employees of the company.
2.4
No employer/employee relationship of any nature whatsoever is created
by the terms
of this agreement, or by
the consultant’s services to the company in terms of this
agreement.’
[28]
The agreement imposed the following
obligation, which I will refer to as ‘the best endeavours
clause’, on the applicant,
namely to:
‘
[u]se
his best endeavours properly to conduct, improve, extend, develop,
promote, protect and preserve the business interest, reputation
and
goodwill of the company and carry out his duties in a proper, loyal
and efficient manner…’
[29]
The parties could not have made it
any clearer that the applicant was not an employee of the respondent
but was an independent contractor.
The
relevant facts
[30]
In the course of the
rendering of services to the respondent, the applicant had dealings
with a Mr Paul Fick (Mr Fick). Mr Fick
is a farmer in the Ladysmith
district and required hail damage insurance in respect of certain
fields on his farm, Acton Valley
(Acton Valley). During October 2022,
the applicant called upon Mr Fick, who informed him which fields he
required to be covered
by the hail insurance. Mr Fick assigned
numbers to the fields for identification purposes. The applicant
prepared the insurance
proposal and presented it to Mr Fick for his
consideration, and received his approval to go ahead when Mr Fick
signed the proposal.
The applicant then submitted the proposal to the
insurance company concerned, which accepted it and provided the
requested cover.
[31]
Unbeknown to both the applicant and
Mr Fick, five fields that Mr Fick had identified as requiring cover
were erroneously not included
in the insurance policy (the excluded
fields).
[32]
As may be expected given the
vicissitudes of life, a hailstorm struck Acton Valley and the
excluded fields, which were planted to
soya beans, were decimated by
the hail. As is further to be expected, the insurance company
concerned declined to pay out anything
in respect of the excluded
fields because they were not covered by the policy that it issued. Mr
Fick claimed that the damage to
the excluded fields came to R626
380.53.
[33]
After realising that the excluded
fields were not insured, Mr Fick sent an email to the applicant
expressing his dissatisfaction
with what had occurred. In his email
he stated, inter alia, the following:
‘
Tot
my skok en algehele verbystering verneem ek nou dat geen Sojaboon
lande op Acton Valley verseker is nie. Lande A2, A4, A5, A6
en A11.
Ek het wel die polisse geteken maar jou woord gevat dat alles
volledig en in order is.’
[34]
Upon receipt of this email from Mr
Fick, the applicant forwarded it to a number of representatives of
the respondent by way of a
covering email, in which he stated the
following:
‘
Ek
is ook baie teleur gesteld (sic) dat ek so n bona fide fout gemaak
het.’
[35]
The respondent thereafter decided
without reference to, or consulting with, the applicant that it
should personally compensate Mr
Fick for his loss. Perhaps that
failure to consult the applicant is further evidence of the fact that
he was truly an independent
contractor. The respondent dispatched a
loss assessor to Acton Valley and he assessed the value of the damage
to the excluded fields
at R406 390.07. Mr Fick appears to have been
advised of this lesser valuation and appears, furthermore, to have
accepted it.
[36]
The respondent had indemnity
insurance itself and consequently lodged a claim with its insurers.
That claim was duly admitted and
settled by the insurers, who agreed
to pay the respondent the sum of R406 390.06, being one cent less
than the amount the respondent
had agreed with Mr Fick. The basis
upon which the respondent’s insurers accepted liability was not
disclosed. However, the
respondent was required to make an excess
payment of R250 000 on its insurance policy. Rather than paying the
amount of R250 000
to the insurer, that amount was simply deducted by
the insurer from the amount of R406 390.06 to be paid by it to the
respondent,
resulting in a net payment to the respondent by the
insurance company of R156 390.06. Despite that deduction, the
respondent paid
Mr Fick the full amount of R406 390.07.
Analysis
[37]
Arising from these facts, the
respondent claims that the applicant was indebted to it in the amount
of R250 000, being the value
of its excess deduction. It alleges that
this debt arose either when the applicant admitted that Mr Fick’s
loss was occasioned
by his fault, alternatively when the deduction of
R250 000 was made by the insurance company from the respondent’s
indemnity
insurance claim, further alternatively when payment of Mr
Fick’s claim was made by it in settlement of the claim. The
respondent
also asserts that the amount of R250 000:
‘…
is
an amount fixed by the insurance contract, and in other words, a
liquidated amount.’
Thus, so it is submitted,
it is capable of being set-off against the amount that the respondent
admits owing the applicant.
[38]
I regret that I am not able to
agree with this conclusion. In the light of the fact that the
applicant was an independent contractor,
the respondent will have to
establish his indebtedness to it before it can be accepted that there
was an existing mutual indebtedness
between the parties to which
set-off can then be applied. The applicant does not admit his
indebtedness to the respondent. While
the applicant appears to have
acknowledged that he made what he described as a ‘bona fide
fout’ (bona fide mistake),
he also contends that Mr Fick
reviewed and approved the insurance proposal that he had prepared
before it was submitted to the
insurance company. The conduct of Mr
Fick, according to the applicant, is of relevance and could possibly
lead to a conclusion
that he was responsible for his own misfortune
or that he, at least, contributed to it. That proposition is
dismissed by the respondent
as being both ‘opportunistic’
and ‘disingenuous’. It may well ultimately be both of
those things, but in
my view it is a defence that may not simply be
dismissed as being frivolous, whatever the respondent may think of
it. Nor, in my
view, has the applicant admitted that Mr Fick’s
loss was occasioned by his fault, for he denies that his error was
the cause
of Mr Fick’s loss. Mr Jacobs argued strenuously that
the applicant had admitted that his negligence caused the loss but to
me it is clear that the applicant did not admit this when his
founding affidavit is considered as a whole.
[39]
In
its answering affidavit, the respondent claims that the loss that it
has allegedly
suffered
is contractual in nature. In advancing this proposition, it appears
to rely on the best endeavours clause in the agreement.
I do not see
this to be the case. That clause had a general meaning prescribing
how the applicant should conduct himself. It did
not instruct him how
to do his work, nor could it do so, as an independent contractor
himself determines how he performs his duties,
not the employer. In
my view, if a loss has been suffered by the respondent, it can only
be delictual in nature and that loss will
have to be determined by a
court.
[40]
It therefore
follows that there is no mutual indebtedness existing between the
parties and that there can be no set-off in these
circumstances. The
respondent is accordingly not entitled by virtue of the operation of
common law set-off to retain the commission
due by it to the
applicant.
Costs
[41]
The
applicant claims a punitive costs order on the attorney and client
scale in the event of his application succeeding. In
In
re Alluvial Creek
,
[17]
Gardiner JP remarked that:
‘
Now
sometimes such an order is given because of something in the conduct
of a party which the Court considers should be punished,
malice,
misleading the Court and things like that …’
The
applicant must have his costs, but I discern no conduct in this
matter worthy of a punitive costs order. None of the factors
referred
to in
Alluvial Creek
appear to be present. In my view, the
respondent’s view of the law was incorrect, but that does not
require it to suffer
a punitive costs order.
Order
[42]
In the result, I grant the
following order:
1.
Judgment is entered against the
respondent in favour of the applicant for payment of the amounts of
R59 321.28 and R210 311.32.
2.
The respondent is to pay the
applicant’s costs.
_____________________________
MOSSOP J
APPEARANCES
Counsel for the
plaintiff
: Ms Z Ploos
van Amstel
Instructed
by:
: Jacques
Roos Attorneys
Care
of:
Viv
Greene Attorneys
132
Roberts Road
Clarendon
Pietermaritzburg
Counsel for the
respondent : Mr M Jacobs
Instructed by
: Seymour Du Toit and Basson Inc
12 Murray Street
Mbombela
Care of:
Tatham and Wilkes
Incorporated
Office F008, First Floor
Athlone Circle
1 Montgomery Drive
Pietermaritzburg
Date of Hearing
: 20
February 2024
Date of Judgment
: 18
March 2024
[1]
Mostert
v Nedbank Limited
[2014]
ZAKZPHC 20 paras 20 and 21.
[2]
Ackermans
Ltd v Commissioner, South African Revenue Service; Pep Stores (SA)
Ltd V Commissioner, South African Revenue Service
[2010]
ZASCA 131
;
2011 (1) SA 1
(SCA) para 8.
[3]
F
d
u
Bois et al
Wille’s
Principles of South African Law
9
ed (2007) at 833.
[4]
See
generally 31
Lawsa
3
ed at 244.
[5]
Herrigel
NO v Bon Roads Construction Co (Pty) Ltd and another
1980
(4) SA 669
(SWA);
[1980] 4 All SA 704
(SWA) at 676F-G.
[6]
Colonial
Mutual Life Assurance Society Ltd v MacDonald
1931
AD 412.
[7]
Stein
v Rising Tide Productions CC
2002
(5) SA 199
(C) at 205F-I.
[8]
Saayman
v Visser
[2008]
ZASCA 71; 2008 (5) SA 312 (SCA).
[9]
Ibid
para 18.
[10]
Kruger
v Coetzee
1966
(2) SA 428 (A).
[11]
Ibid
at
430E-F.
[12]
Chartaprops
16 (Pty) Ltd and another v Silberman
[2008]
ZASCA 115
;
2009 (1) SA 265
(SCA); [2009]
1 All SA 197
(SCA)
(‘
Chartaprops
’
).
[13]
Ibid
para 29.
[14]
Langley
Fox Building Partnership (Pty) Ltd v De Valence
1991
(1) SA 1 (A); [1991] 3 All SA 736 (AD).
[15]
Chartaprops
para
42.
[16]
Minister
of Safety and Security v Slabbert
[2009]
ZASCA 163; [2010] 2 All SA 474 (SCA) para 11;
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA) paras 15 and 19;
Four
Wheel Drive Accessory Distributors CC v Rattan NO
[2018]
ZASCA 124; 2019 (3) SA 451 (SCA) paras 21-23.
[17]
In
re
Alluvial
Creek Ltd
1929
CPD 532
at 535.