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[2010] ZASCA 170
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Exdev (Pty) Ltd and Another v Pekudei Investments (Pty) Ltd (97/10) [2010] ZASCA 170; 2011 (2) SA 282 (SCA) ; [2011] 2 All SA 371 (SCA) (1 December 2010)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 97/10
In
the matter between:
EXDEV (PTY) LTD
..................................................................................
First
Appellant
RODNEY WOLMER
...........................................................................
Second
Appellant
v
PEKUDEI
INVESTMENTS (PTY) LTD
........................................................
Respondent
Neutral citation:
Exdev v
Pekudei Investments
(97/2010)
[2010] ZASCA 170
(1 December 2010).
Coram:
Heher, Cachalia, Leach
JJA, R Pillay and Ebrahim AJJA
Heard:
16 November 2010
Delivered: 1 December 2010
Summary: Sale of immovable property
– requirements of s 2(1) of Act 68 of 1981 – parties
agreed of the size of office
unit sold but leaving it to the seller
to determine shape and location of the unit in a building being
developed – sale valid.
Contract sale and option two
distinct and divisible contracts despite being concluded at the same
time and recorded in the same
document.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
South Gauteng
High Court, Johannesburg (Ntsebeza AJ sitting as court of first
instance).
The following order is made:
The appeal is dismissed with costs.
The order of the court a quo is
altered to read as follows:
‘
(a) The
exception is upheld, with costs.
(b) The words “and 3.3 to 3.3.4
below” in para 3.2 of the plea are struck out.
(c) Paragraph 3.3 of the plea is
struck out.’
________________________________________________________________
JUDGMENT
________________________________________________________________
LEACH JA
(Heher and Cachalia
concurring):
[1]
Section 2(1)
of
the
Alienation of Land Act 68 of 1981
, which visits nullity upon a
sale of immovable property ‘unless it is contained in a deed of
alienation signed by the parties
thereto or by their agents acting on
their written authority’ was designed to promote certainty and
to avoid disputes, litigation
and possible malpractice. Unfortunately
history has proved it to be fertile ground for litigation, the law
reports being replete
with decisions concerning the validity of deeds
of sale of land. Consequently, it has been remarked that the section
has failed
to achieve its objectives, and it has indeed correctly
been observed that reading between the lines the section is often
abused,
in particular ‘by unscrupulous sellers who regret
having sold the property at the price they did and then try to
rescind
the contract because of non-compliance with the technical
formality requirements of the Act’.
1
This comment is not
without substance, but it may be somewhat unfair. Human nature being
what it is, there may well have been many
more disputes arising out
of the sale of land had no formalities been required and, as Innes J
observed in
Wilken
v Kohler
1913
AD 135
at 142, whether such a provision ‘does not create as
great hardships as it prevents, is a matter upon which opinions may
well differ’.
[2] Be that as it may, this is another
case in which a seller of immovable property alleges that the sale is
void for non-compliance
with the section. Like many of the reported
decisions dealing with the section, the case turns on whether the
description of the
property sold (the
res vendita
) and the
purchase price, both of which are material terms of a sale, have been
adequately set out. The court a quo, on exception,
determined that
the written agreement upon which the respondent had sued the
appellants for damages complied with the requirements
of s 2(1) and
that the sale was valid and enforceable, but granted the appellants
leave to appeal to this court. For convenience
I shall refer to the
appellants as ‘the first and second defendants’ and to
the respondent as ‘the plaintiff’.
[3] At the heart of the dispute lies a
letter dated 15 June 2005 addressed by plaintiff to the defendants
which reads as follows;
‘
Dear
Sirs
SUITES
207, 8 AND 9
1.
We address you to clearly record our agreement.
2.
(First defendant) is purchasing from us the units described as
Sections 21, 22 and 23 Twindale measuring 260 square meters together
with eight parking bays numbered 4 (double bay) 5 (double bay) 6
(double bay) and open parking bays 15 and 16 and an undivided
share
in the common property for R2 178,000.
3.
(First defendant) is intending to replace Twindale with a new
building comprising offices and apartments. We confirm that you
will
irrevocably provide us with an office unit (at the same price for
which sections 21, 22 and 23 were sold to you) of the same
size and
with a similar number of parking bays (8). In addition to this (first
defendant) also grants an option to (the plaintiff)
to purchase up to
a further 140 square meters at the market price prevailing when the
new building is completed.
4.
We have been advised by (second defendant) that the replacement
building will be erected within two years of getting the necessary
rezoning rights. Accordingly, if the replacement building is not
erected within thirty months of getting the necessary rezoning
rights
then (second defendant) personally is liable to provide us with a
similar office of identical size in a similar building
in a similar
area for the same purchase price.
5.
Kindly confirm that the aforegoing correctly records our agreement by
signing where indicated below and returning the signed
document to
us.
6.
It is recorded that (first defendant) is entitled to nominate a third
party to be the purchaser of the space to be acquired.’
[4] Acting in both his personal
capacity and as representative of the first defendant, a company with
limited liability, the second
defendant indicated his acceptance of
these terms by signing at the foot of the document. As is readily
apparent, the document
embraced a number of agreements, namely:
The plaintiff’s sale to the
first defendant of sections 21, 22 and 23 of Twindale, together with
eight parking bays and
an undivided share in the common property, at
a purchase price of R2,178m – as set out in clause 2.
The first defendant’s sale to
the plaintiff of an office unit of 260 m
2
together with
eight parking bays, in the building it intended to build at Twindale
at the same purchase price of R2,178m –
as set out in clause
3.
An option extended by the first
defendant to the plaintiff to sell it a further 140 m
2
in
the new building ‘at the market price prevailing when the new
building is completed’ – as also set out in
clause 3.
In the event of the necessary
rezoning for the proposed development not being forthcoming, the
second defendant’s sale to
the plaintiff of a similar office
of identical size at the same price – as set out in clause 4.
[5] It is common cause that pursuant
to clause 2 of the agreement, the plaintiff sold and transferred
sections 21, 22 and 23
at Twindale, the eight parking bays and
the undivided share of the community property to the first defendant.
It is also common
cause that the necessary rezoning for the
development was effected during November 2006. However, the
transactions envisaged in
clause 3 of the agreement appear not to
have come about and, in September 2008, the plaintiff instituted
action against the defendants,
alleging that the sale in clause 3
(viz the sale of office unit of 260 m
2
in the new building
and eight parking bays) had been cancelled as a result of their
repudiation of the agreement, causing it to
suffer damages in the sum
of R5,62m being the difference between the value of the property
purchased and the price of R2,178m it
would have been obliged to pay
for it.
[6] On pleading to this claim, the
defendants denied being liable for the alleged damages. While they
admitted that the sale in
clause 2 had been effected and that the
rezoning envisaged in clause 4 had taken place, they denied having
repudiated the agreement
or that the plaintiff had suffered damage.
In addition, they specifically pleaded that the agreement was:
‘
3.3.1
void for vagueness of the description of the properties mentioned in
clauses 3 and/or 4 . . . and/or
3.3.2
void for vagueness for stipulating the purchase price of the option
in clause 3 . . . to be the market price; and/or
3.3.3
of no force or effect due to non-compliance with the formalities of
writing and signature prescribed by
section 2(1)
of the
Alienation of
Land Act 68 of 1981
on account of the vagueness of the description of
the properties mentioned in clauses 3 and/or 4 . . . ; and/or
3.3.4
of no force or effect due to non-compliance with the formalities of
writing and signature prescribed by
section 2(1)
of the
Alienation of
Land Act 68 of 1981
on account of stipulating the purchase price of
the option in clause 3 . . . to be the market price.’
[7] To this the plaintiff filed an
exception, contending that the defence in paragraph 3.3 of the
plea viz that the contract
was of no force or effect, was
unsustainable. In this way the matter came before the court a quo,
which was called to decide the
simple issue whether the terms of the
sale sued upon complied with the requirements of
s 2(1).
[8] The judgment of the court a quo is
as confused as it is confusing. The judge who heard the matter
appears to have regarded the
plea as an exception to the claim and
the plaintiff’s exception to the plea to thus be an exception
to an exception. Then,
after having concluded that he was not
confident that the plaintiff’s exception should succeed, he
stated that he had to
find ‘a practical way of dealing with
this matter in a way which should work for both parties’ and
proceeded to uphold
the exception. However, in paragraphs 2 and 3 of
his order, he went on to grant the successful plaintiff, against
whose claim exception
had not been taken, leave to amend its
particulars of claim; and the defendants, whose plea he had found to
be excipiable, leave
to plead to the claim if the plaintiff did so
amend or, if it did not, to either file such other pleading as they
should deem fit
or to amend their plea. It is this order which is the
subject of this appeal.
[9] Although in their plea the
defendants relied upon the alleged invalidity of all the agreements
referred to in clauses 3 and
4 of the letter of 15 June 2005 as a
defence to the enforceability of the sale contained in clause 3, I
did not understand them
to persist in their contention that the
alleged invalidity of the second defendant’s conditional sale
to the plaintiff of
a similar office contained in clause 4 visited
invalidity upon the sale in clause 3. The defendant’s argument,
however, was
that both the sale and the option set out in clause 3
were part of a single unitary contract so that, if the property or
the price
in either the sale or the option were not adequately
described, the entire agreement failed and neither the sale nor the
option
would be enforceable. As against that, the plaintiff argued
that the option was separate and divisible from the sale and that,
even if the option was invalid (which it denied) the sale would not
be affected and would remain effective. It is to this issue
that I
first turn.
[10] At the outset it must be
remembered that there is a distinction between the severance of a
portion of a contract, eg on grounds
of vagueness or illegality, and
recognising that a contract may contain several distinct and separate
agreements divisible from
each other. As was explained in Wessels
The
Law of Contract in South Africa
2 ed vol 1 para 1615:
‘
It
is often loosely said that a contract is divisible or separable
where, though in form there is only one contract, in reality
there
are several distinct agreements entered into at the same time. There
is, however, a clear distinction between this class
of contract and a
divisible or separable contract.
If
the obligation is divisible in the material or physical sense, there
is only one contract, though the subject matter may consist
of
several parts considered as one whole. The contract is entire, but
the object of the obligation is separable into homogeneous
parts. If,
however, there are several distinct obligations, we are not dealing
with a divisible or separable contract at all, but
with a collection
of separate contracts embodied in one single writing or agreement.
Thus,
the sale of a quantity of coal to be delivered by instalments of so
many tons is, as a rule, an entire contract in which the
obligation
is divisible. In such a case it may be the intention of the parties
that a default on the part of the seller in delivering,
or on the
part of the purchaser in accepting, one instalment will not justify a
cancellation of the contract (
Simpson
v Crippin
, 1872, 8
LRQB 14:
42 LJQB 28:
27 LT 546).
On the other hand, the sale of
Stichus and Pamphilus for 100 and 200 aurei respectively is in
reality an independent sale of Stichus
for 100 and of Pamphilus for
200 aurei (D. 45.1.29.pr.).’
[11]
Where there is a sale ‘of several distinct and separate items
and a price is fixed to each, the contract as a rule, will
be held to
be composed of several agreements’.
2
Furthermore,
the nature of the performance required under a contract can be of
decisive importance, and a contract is usually divisible
where it
makes provision for separate or distinctive performances.
3
Thus
in
Middleton
v Carr
1949
(2) SA 374
(A) at 391 Schreiner JA, in concluding that an undertaking
by a husband to pay his estranged wife a substantial sum of money was
severable from a collusive agreement for divorce, said:
‘
But
the fact that the two agreements were made at the same time does not
provide sufficient reason for treating them as in fact
one agreement;
to reach that conclusion it would be necessary to find some express
or implied interlocking of their terms.’
[12] In
Nash
v Golden Dumps (Pty) Ltd
1985
(3) SA 1
(A) the parties had concluded a written contract of
employment which also included an option that entitled the appellant
to purchase
shares in a company still to be founded when its shares
became available. This court concluded that the share option
constituted
the consideration or reward extended to the appellant for
carrying out a specific mandate which it was contemplated he would
complete
prior to commencing employment with the respondent, and was
quite distinct from his duties under the employment contract. It
therefore
held that although the share option and the employment
contract were both ‘contained in the same agreement and were
linked
in a practical sense, juristically they were separate
agreements, with independent sets of reciprocal rights and
obligations.’
4
[13] In the present case, the sale of
the office unit, which gave rise to a set of reciprocal rights and
duties, was wholly independent
and separate from the option extended
to the plaintiff to purchase a further and additional portion of the
building, which gave
rise to a different set of rights and
obligations. The two agreements related to two different and separate
units of property in
respect of which different prices were fixed.
The terms of the two agreements were in no way entwined or
interlocked, either expressly
or by necessary implication. On
purchasing the office unit, the plaintiff was under no obligation to
exercise its rights under
the option to purchase the additional 140
m
2
. It had the discretion to do so if it so wished. Thus
although both the sale of the office unit and the option to buy a
further
portion of the building were contained in the same document,
the rights and obligations arising from each were completely separate
from each other.
[14] In these circumstances, I have no
hesitation in concluding that the sale and the option in clause 3 of
the agreement are separate,
divisible and independent contracts. That
being so, it is unnecessary to consider whether the option was
invalid in order to determine
the validity of the sale of the office
unit or to determine that the purchase price referred to in the
option viz ‘the market
price prevailing’ visited nullity
upon the option, as the defendants contend. The sole issue then is
whether the sale in
clause 3 should be regarded as invalid due to the
alleged vagueness of the description of the
res vendita
.
[15] It is now well settled that, in
regard to the description of the property, the test for determining
whether
s 2(1)
has been complied with is whether the land
alienated can be identified from the contract itself without
resorting to evidence from
the parties regarding their negotiations
and their consensus. In arguing that the description of the property
contained in clause
3 is too vague to be enforceable, counsel for the
defendants emphasised that there was no plan of the proposed
development and
that the selection of the unit had been vested in the
sole discretion of the first defendant which, apart from being
obliged to
ensure its floor size was 260 m
2
, had the sole
discretion to determine its shape, its position on any floor and its
situation in the building. As the subject of
the sale was only a
portion of the new building, so defendants’ counsel argued, it
was therefore necessary to set out the
precise dimensions of the
office unit, its shape, the height of its walls, its precise
situation in the building (viz on what floor
it was to be and in what
direction it would face) as well as details in regard to the style of
architecture to be used in the construction
of the building (eg
modern or Victorian) or else the unit could not be identified from
the terms of the contract itself. He conceded
that the effect of his
argument was that all the information that would be derived from an
accurate three dimensional plan would
have to be set out in order to
satisfy the requirements of
s 2(1).
[16] This argument
flies in the face of the now well established principle that the
section does not require ‘a faultless
description of the
property sold couched in meticulously accurate terms’.
5
In cases such as
this there are two broad categories of contract: first, those where
the document itself sufficiently describes
the property to enable
identification on the ground; second, those where it appears from the
contract that the parties intended
that either the buyer or the
seller should choose the
res
vendita
from
a genus or class. In
Clements
v Simpson
1971
(3) SA 1
(A) at 7-8, Holmes JA stated the following in regard to the
latter category:
‘
For
example, if a dog breeder says to a prospective purchaser, "I
offer you the pick of this litter for R100", and the
buyer
accepts, no further
consensus
is
required. There is a valid sale; and the buyer may choose his pup.
Or, in regard to land, a prospective buyer might offer in
writing to
buy, and a specified price, one out of several sites in a township,
the buyer to select the particular site. The seller
accepts in
writing. That is a valid sale as far as the
res
vendita
is
concerned, for the
res
is
ascertainable or identifiable on the unilateral selection of the
buyer.’
[17] The facts in
Clements
v Simpson
provide
a useful illustration of a case in which the contract is not to be
regarded as being void due to the selection of the property
having
been entrusted to one of the parties. The deed of sale related to a
section of a property which the seller was to sub-divide
from the
property as a whole. The area of this sub-divided property was agreed
at 4 000 square feet and the general location
was fixed, but the
shape was to be determined by the seller and, until he did so, the
land sold could not be identified on the
ground. This did not prevent
this court from concluding that there had been a valid sale. In doing
so, Holmes JA said:
6
‘
(H)ere
the intention of the parties, as gathered from the language of their
contract, was not to enable identification of the land
sold by
reference to description; it was to be identifiable only after the
seller had decided upon the lay-out and shape and sub-division
of a
site conforming to certain specified requirements. It is in my view a
clear example of the second category mentioned earlier.
The
consensus
of
the parties was complete. All that was needed for performance was the
intended unilateral act of the seller in the matter of
shape and
sub-division. The fact that survey was required for that purpose
cannot affect the question . . . .’
[18] This decision has been regularly
followed in this court, most recently in
JR 209 Investments (Pty)
Ltd v Pine Villa Country Estate (Pty) Ltd
2009 (4) SA 302
(SCA),
a decision which is particularly instructive. The contract envisaged
the purchaser establishing a township on a piece of
land that it
intended to purchase from a private company whose sole director, Mr
Oberem, lived in a homestead on the property.
It was agreed that
Oberem would continue to live in the homestead on an erf which, after
sub-division, would be between 5 000 m
2
and 5 653 m
2
in extent and which would be transferred into Oberem’s name as
soon as sub-division had been effected. By necessary implication,
the
purchaser had the right to determine the precise shape and the size
of the erf, subject of course to it being within the range
of size
agreed upon and upon such determination being bona fide. The argument
that the description of the
res vendita
was inadequate was
rejected.
[19] These principles, and the
illustrative effect thereof provided by the decisions in
Clements
v Simpson
and the
JR 209 Investments
case in particular,
effectively dispose of the appellants’ contention in the
present case. The size of the unit had been determined
– it had
to be 260 m
2
. Apart from the fact that it had to be
positioned within the new building that the defendants were
constructing a Twindale, the
parties were agreed that the precise
shape and position in the building was something to be left to the
bona fide discretion of
the first defendant. The consensus of the
parties was complete and all that was needed was for the seller to
determine the shape
and precise situation within the new building of
the unit of the agreed size. This clearly fell within the second
class of category
mentioned in
Clements v Simpson
and
constituted an adequate description of the property sold. The
exception to the defence that the sale was unenforceable for
lack of
compliance with
s 2(1)
was correctly taken and the appeal must fail.
[20] It was argued by the defendants
that the case was not ripe for exception as evidence of surrounding
circumstances might throw
a different light on the validity of the
sale. This misses the point. This is not a case in which external
evidence might cure
a possible deficiency. The exception raises a
substantive question of law, and the contract is to be construed
without reference
to the parties’ negotiations and consensus.
Doing so, the sale in question clearly complies with
s 2(1)
and is
valid and enforceable. This goes to the very root of the defendants’
plea that the sale is unenforceable, a plea which
is therefore bad in
law.
[21] Due to the manner in which the
plea was formulated, the appropriate order would be to strike out
those allegations in the plea
in which the defendants allege that the
sale is unenforceable. As doing so will remove a separate and
self-contained defence which
is legally unsound, no purpose would be
served by allowing the defendants leave to amend.
[22] Unfortunately, there are a few
further issues which must be mentioned. The first is the grant of
leave to appeal to this court.
As is apparent from what I have said,
this matter fell to be determined by the application of well-known
legal principles to a
simple set of facts. It is a matter of no
complexity, and it was wholly inappropriate for the court a quo to
have directed the
appeal to be heard by this court whose time ought
rather to be taken up dealing with matters of greater complexity and
difficulty
truly deserving of its attention – see eg
Shoprite
Checkers (Pty) Ltd v Bumpers Schwarmas CC & others
2003 (5)
SA 354
(SCA) para 23 and
S v Monyane & others
2008 (1)
SACR 543
(SCA) para 28.
[23] Secondly, it is necessary to
comment on the undue delays that have afflicted the progress of this
matter. Despite the simplicity
of the issues raised, it took more
than nine months after the exception had been argued on 19 February
2009 before judgment was
delivered on 25 September 2009. As appears
from correspondence handed in and incorporated into the record by
consent, this delay
occurred despite the plaintiff’s attorney
having addressed enquiries as to when the judgment was likely to be
delivered,
first to the Judge President of the division after three
months had elapsed and, subsequently, to the Deputy Judge President
after
the passing of another three months. Then, after the
application for leave to appeal had been argued on 16 October 2009,
it took
more than three months until judgment was delivered on 2
February 2010. In this latter judgment the acting judge explained
that
he had been delayed by waiting for copies of certain judgments
to be forwarded to him by counsel for the plaintiff, but that is
not
an acceptable explanation as the judgments concerned had all been
reported.
[24] Justice delayed is justice
denied. The object of an exception is to deal with a case in an
expeditious manner, and a delay
of some nine months in producing a
judgment on such a simple matter of no complexity is at first blush
wholly unacceptable –
as is the delay of three months in
producing a judgment on a simple application for leave to appeal –
all of which led to
it taking a full calendar year from when the
exception was argued until leave to appeal was granted: and this in a
matter in which
both judgments could have been delivered almost
immediately.
[25] The Chief
Justice is reported to have recently deprecated the number of
reserved judgments as well as the delays taken by Judges
to deliver
their judgments, which he found to be ‘utterly unacceptable’,
and to have remarked as long as such delays
existed judges could not
avoid the accusation that the justice system had failed to deliver on
its promise of access to justice.
7
These observations
are justified. Judges are employed to give judgments. They owe it not
only to the litigants who appear before
them but to the public at
large to do so expeditiously, and the administration of justice will
fall into disrepute if they fail
in that regard. The delays that
occurred in this case are cause for concern.
[26] Turning to the form of the order,
the appeal against the exception being upheld must be dismissed.
However, as I have indicated,
the contents of paragraphs 2 and 3 of
the order of the court a quo are illogical and they must be set
aside. In addition, having
succeeded in its exception, the plaintiff
ought to have been awarded the costs and there was no reason for the
court a quo to have
reserved those costs as it did.
[27] In the result the following order
is made:
The appeal is dismissed with costs.
The order of the court a quo is
altered to read as follows:
‘
(a) The
exception is upheld, with costs.
(b) The words “and 3.3 to 3.3.4
below” in para 3.2 of the plea are struck out.
(c) Paragraph 3.3 of the plea is
struck out.’
____________
L E LEACH
JUDGE OF APPEAL
R PILLAY AJA
[28] I have read the judgment of Leach
JA. I agree with my learned colleague’s conclusion and in
general with his reasoning.
I can hardly quarrel with the proposition
that justice delayed is justice denied. Whilst stopping short of
criticising the trial
judge for such delays as may have been
occasioned in the matter, he nonetheless expresses some disquiet
about those delays. As
regrettable as these delays might be, it is
apparent from his judgment, that we clearly do not know what the true
causes of the
delay in this instance were – hence his comment
that the delay is ‘at first blush unacceptable’ (para
24). The
delay is either acceptable or it is not. Whether it is,
depends on all of the facts, which, as Leach JA appears to accept, we
simply
do not have. Consequently it would be wrong for us to
speculate as to such causes and apportion blame to the trial judge,
absent
a proper factual foundation to do so. Sitting as a court of
appeal and being bound by the record, we should be slow to have
regard
to what may be contained in documents or reports that do not
constitute part of that record. Whilst what the Chief Justice may
have stated – if accurately reported – is to be lauded,
it is unclear
to me on what
basis we can have regard to what he reportedly may have said in
holding the trial judge responsible for the delays.
I would thus
prefer not to associate myself with the observations expressed in
paragraphs 23, 24 and 25 of Leach JA’s judgment.
___________________
R. PILLAY
ACTING JUDGE OF APPEAL
EBRAHIM AJA
[29] I have read the judgment of my
colleague Leach JA and concur in the conclusion he has reached on the
merits of the appeal and
the process of reasoning by which he arrives
at that conclusion. I would accordingly agree with the order
proposed.
[30] On the matter extraneous to the
merits, that of ‘undue delays that have afflicted the progress
of this matter, despite
the simplicity of the issues raised’,
whilst I agree, in general, that a delay in handing down a judgment
expeditiously is
likely to create in the minds of litigants and the
public at large, the perception of a dereliction of duty and
responsibility
on the part of the judge concerned, whoever he or she
happens to be, I am firmly of the view that, in the present matter,
such
criticism is unwarranted. The simple state of affairs in this
case is that we do not have before us an explanation for the delay
from the judge concerned so that, in the absence thereof, a critical
expose in the judgment of a failure to act timeously leads
unnecessarily and unfairly to the creation of the public mindset
already referred to concerning the judge seized with this matter
in
the court a quo. I think such criticism is undue and should not be
encouraged. To that end, I dissociate myself from the critical
comments in paragraphs 23, 24 and 25 of the judgment.
________________
S EBRAHIM
ACTING JUDGE OF APPEAL
APPEARANCES
APPELLANTS: H H Steyn
Instructed by Jordaan & Wolberg
Attorneys, Johannesburg
E G Cooper Majiedt Inc, Bloemfontein
RESPONDENT: J Peter SC
Instructed by Shapiro Aarons Inc,
Johannesburg
Honey Attorneys, Bloemfontein
1
See
Lotz and Nagel’s comment on
JR 209 Investments (Pty) Ltd &
another v Pine Villa Country Estate (Pty) Ltd
2009 (4) SA 302
(SCA) : 2010 (43)
De Jure
169 at 174.
2
Wessels
op cit para 1618.
3
See
eg
Bob’s Shoe Centre
v Heneways Freight Services (Pty) Ltd
[1994] ZASCA 158
;
1995
(2) SA 421
(A) at 429F-I and
Du
Plooy v Sasol Bedryf (Edms) Bpk
1988
(1) SA 438
(A).
4
Per
Corbett JA at 23D-E.
5
Per
Watermeyer CJ in
Van Wyk v
Rottcher’s Saw Mills (Pty) Ltd
1948
(1) SA 983
(A) at 989, regularly cited with approval in this court:
see eg
JR 209 Investments
(Pty) Ltd v Pine Villa Country Estate (Pty) Ltd
2009
(4) SA 302
(SCA) para 19.
6
At
9A-B.
7
www.news24.com/South
Africa/News/Ngobo-SA-courts-need-reform-20101113.