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[2011] ZASCA 82
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Bidoli v Bidoli and Another (2011 (5) SA 247 (SCA)) [2011] ZASCA 82; 436/10 (27 May 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 436/10
GUIDO
BRUNO BIDOLI
........................................................................
Appellant
and
BARBARA
LIESELOTTE BIDOLI
..............................................
First
Respondent
(in her
capacity as executrix in the estate of the late
Fabrizio
Bidoli as well as in her personal capacity by
virtue of
her marriage in community of property)
ROMOLO
BIDOLI
................................................................
Second
Respondent
_____________________________________________________________
Neutral
citation:
Bidoli v Bidoli & another
(436/10)
[2011] ZASCA 82
(27 May 2011)
BENCH:
HARMS DP, NUGENT, PONNAN, MALAN and THERON JJA
HEARD:
17 MAY 2011
DELIVERED:
27 MAY 2011
CORRECTED:
SUMMARY:
Arbitration - arbitrator – power of - to record a settlement
reached by the parties in the form of an award on agreed
terms.
____________________________________________________________
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
:
Western Cape High Court (Cape
Town) (Fourie J sitting as court of first instance).
The appeal is upheld with costs and the order of the court below is
set aside to be replaced with:
‘
1. The applicant’s application
succeeds with costs.
2. The arbitrator’s award published on 10 December 2007 in the
terms set out hereunder is made an order of court:
a. The remaining property in Rome, at present registered
in the name of the three brothers, shall remain as registered in
equal
undivided shares, to which the parties shall have equal rights
and remain responsible, in equal shares, for the maintenance and
upkeep, rates, taxes, levies and other charges as may be payable;
b. The remaining money held in the aforesaid account
with Banca Intesa, Rome, shall be divided in accordance with the
written agreement
signed by the parties and handed in as exhibit “C”
and a true copy of which is annexed to this award.
c. Should the amount at present held in the said account
be any different to the amount reflected in exhibit “C”,
then
the funds shall be divided in accordance with the following
ratio of division agreed upon, namely to Barbara (in her aforesaid
capacities) 7.21%; to Romolo 17.50% and to Guido 75.29%.
3. The second respondent’s counter application is dismissed
with costs.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (HARMS DP, NUGENT, MALAN and THERON JJA concurring)
:
[1] The brothers Bidoli – Guido, the appellant (the appellant);
Fabrizio, the first respondent (who is deceased and whose
estate is
represented by its executrix, his wife, Barbara, who takes no part in
these proceedings); and, Romolo, the second respondent
(the
respondent) - conducted business together with their father in
various joint and separate enterprises since 1960. Much of
that
business as building contractors in South Africa, Namibia and Italy
was conducted until 1995 under a partnership styled Bidoli
and Sons.
During that time as the respondent puts it they ‘operated as
partners, as
de
facto
partners in joint ventures, as
joint shareholders in companies and on [their] own in partnerships
with the parties’.
[2] Although the partnerships and companies kept separate books of
account, accurate records of how the profits from the various
projects were distributed were not maintained. That was complicated
by the fact that often the different partnerships and companies
shared equipment or rendered services to each other. Since 1971 the
brothers sent moneys to their late father in Italy which was
used to
finance the construction of a block of flats on the outskirts of
Rome. The block of flats, which was completed in 1984,
was registered
by their father in the names of the three brothers. A vacant piece of
land which adjoined the block of flats was
acquired and also
registered jointly in their names. During 2000 the block of flats was
sold and the proceeds of that sale deposited
into a bank account in
Rome in the joint names of the brothers.
[3] Disputes arose amongst the brothers and in 2007 they concluded an
arbitration agreement with a view to having an arbitrator
determine
all of their disputes including those pertaining to their partnership
and other claims and the funds standing to their
credit in the joint
bank account in Rome. The agreement provided that the arbitration
would be governed by the Arbitration Act
42 of 1965 (the Act) and
would deal with all of the parties’ disputes. Advocate Joe van
der Westhuizen SC was appointed the
arbitrator and attorney Hans
Botma the case manager. The agreement further provided:
‘
9
Hearing
The hearing shall be commenced and conducted by the
Arbitrator. All relevant evidence shall be admissible subject to the
discretion
of the Arbitrator. The general order of these proceedings
shall be similar to that used in courts, subject to the discretion of
the Arbitrator. Hearings, as well as all other activities, will be
convened privately. The Arbitrator may proceed with the hearing
if a
party is absent without good cause. The Arbitrator shall administer
an oath to each witness to tell the truth. Adjournments
and/or
postponements may be granted by the Arbitrator only for good cause as
determined by the discretion of the Arbitrator.
. . .
11
Award
The Arbitrator shall submit a written award based on law
as applied to the facts. The Award of the Arbitrator shall be binding
upon
the parties without any right of appeal except for any review as
may be allowed by or under The Arbitration Act (No. 42 of 1965)
and
each party shall abide by and comply with the Award in accordance
with its terms. Each party undertakes to forthwith thereafter
sign
all such documents and authorities as may be necessary to give effect
to the Award and failing which the Case Manager is hereby
authorised
and empowered to do so.
12
Enforcement of the Award
Judgment may be entered on the Award rendered in this
case, and such judgment may be enforced pursuant
to
processes available under section 31 of the Arbitration Act (no.42 of
1965).’
[4] The parties filed their respective statements of claim during
September 2007 and the hearing commenced before the arbitrator
on 3
December 2007. On Friday 7 December 2007 the parties and certain
family members met outside of the arbitration hearing to
discuss a
settlement of the matter. That led to the conclusion of a settlement
agreement. However, on Monday 10 December 2007 the
respondent
contacted the case manager and expressed his dissatisfaction with the
settlement agreement. As he put it:
‘
At my request, the Arbitrator
then re-opened the arbitration on Monday 10 December 2007. He
requested me to state why I was dissatisfied
with the settlement
agreement and I tried to explain that I had signed the agreement by
mistake. I felt that the calculation of
the amount that I owed the
Applicant was wrong.
However, I was not able to articulate my grounds very
well and the Arbitrator ruled that he would adopt the settlement
agreement
for his Award but that I could raise my objections before
this Court when the Applicant or the First Respondent applied for the
Arbitral Award to be confirmed and made an order of Court.’
[5] After a brief recitation of the history of the matter and the
nature of the disputes between the parties, the arbitral award
concluded:
‘
12 There is no need to state
the full extent of the various claims and counterclaims made by the
parties. They have settled all
of their disputes, whether by set-off
of various claims against each other; compromise or abandonment; by
agreeing that:
a The remaining property in Rome, presently registered
in the name of the three brothers, shall remain as registered in
equal undivided
shares, to which the parties shall have equal rights
and remain responsible, in equal shares, for the maintenance and
upkeep, rates,
taxes, levies and other charges as may be payable;
b The remaining money held in the aforesaid account with
Banca Intesa, Rome, shall be divided in accordance with the written
agreement
signed by the parties and handed in as exhibit “C”
and a true copy of which is annexed to this award.
c Should the amount presently held in the said account
be any different to the amount reflected in exhibit “C”,
then
the funds shall be divided in accordance with the following
ratio of division agreed upon, namely to Barbara (in her aforesaid
capacities) 7.21%; to Romolo 17.50% and to Guido 75.29%.’
[6] During February 2008 the appellant applied to
the Western Cape High Court, Cape Town for the arbitral award to be
made an order
of court in terms of s 31 of the Act.
1
He sought an order that:
‘
1 the Arbitral Award published
on 10 December 2007 be confirmed and made an order of court; and
2 the Respondents’ be ordered to pay costs jointly
and severally in the event that they oppose this application.’
The respondent opposed the application. He, moreover, counter applied
for the following relief:
‘
(a) That the Arbitral Award
published on 10 December 2007 be set aside as void
ab
initio
;
(b) That the arbitration settlement agreement concluded
by the parties on 7 December 2007 be declared void
ab
initio
;
(c)
In the alternative to (a) and (b)
, that the
Arbitral Award published on 10 December 2007 and the arbitration
settlement agreement concluded by the parties on 7 December
2007 both
be declared void
ab
initio
and that the arbitration
hearing of the parties’ disputes as set out in their Agreement
to Arbitrate be re-opened;
(d) That the Applicant and the First Respondent be
restrained from taking any steps to have the Arbitral Award enforced,
pending
the Court’s determination of the matters before it;’
[7] Before Fourie J in the high court respondent’s
counsel specifically abandoned his attack on the validity of the
settlement
agreement. He intimated rather that he was restricting
himself in the counter application to the contention that the
arbitral award
fell to be set aside as being void
ab
initio
. In support of that contention
he advanced an argument not foreshadowed on the papers, namely that
the parties having settled their
dispute, the arbitrator’s
mandate terminated automatically and in the result any such award as
issued thereafter was void
for want of jurisdiction. That argument
found favour with Fourie J, who in dismissing the application and
setting aside the arbitral
award, held:
‘
I accordingly agree with the
submission of [counsel], that, upon the settlement of their disputes
by the parties, the arbitrator’s
appointment was at an end, for
there was nothing left for him to decide in terms of the referral to
arbitration. The publication
of any award thereafter, which merely
incorporates the settlement concluded by the parties, did not, in my
opinion, bring about
a valid award which may be made an order of
court in terms of
section 31
of the
Arbitration Act. Nor can
it, in
terms of our common law, be regarded as a valid arbitral award.’
2
The learned judge however thought it just and equitable to issue a
special costs order that recognised that the ground upon which
the
counter application succeeded had not been advanced on the papers by
the respondent.
[8] What appeared to weigh with Fourie J was the
fact that our
Arbitration Act, unlike
its English counterpart
3
does not make provision for an arbitrator to
record the settlement reached by the parties in the form of an agreed
award. The English
Act recognises that many cases settle before
reaching the stage of a final award. And where the parties settle
their dispute in
the course of the arbitration it enables the
arbitrator to issue an award recording the terms agreed. An agreed
award thus has
the status and effect of any other award on the
merits. Accordingly, an agreed award is enforceable even though the
arbitrator
has not actually made a decision but simply recorded
agreed terms.
4
[9] I pause to record that as long ago as May 2001
the South African Law Commission recommended
5
to the then Minister of Justice that we should
have a new statute combining the best features of the United Nations
Commission on
International Trade Law (UNCITRAL) Model Law for
domestic arbitrations and the English Act, while retaining certain
provisions
of our own Act that has worked well in practice. To that
end a Draft Arbitration Bill was proposed. One of the suggested
provisions
of the proposed Bill reads:
‘
Award on agreed terms
44. (1) If, during arbitral proceedings, the parties
settle the dispute, the tribunal must terminate the proceedings and,
if requested
by the parties and not objected to by the tribunal,
record the settlement in the form of an award on agreed terms.
(2) An award on agreed terms must be made in accordance
with the provisions of section 43(1) and (2) and must state that it
is an
award.
(3) An award referred to in subsection (2) has the same
status and effect as any other award on the merits of the dispute and
may
be made an order of court under section 53 if it is otherwise
within the competence of the court to grant such order.’
Many developed and developing countries have
adopted the UNCITRAL Model Law for domestic and international
arbitrations.
6
It is thus lamentable that a decade later the Law
Commission’s recommendations are yet to be acted upon.
[10] Fourie J took the view that ‘our common
law relating to arbitration . . . does not provide for the making of
an “agreed
award” by an arbitrator’.
7
Thus, according to him, in the absence of a
statutory provision there was ‘no legal basis upon which the
arbitral award .
. . can be regarded as a valid award for the purpose
of having same made an order of court in terms of
section 31
of the
Arbitration Act&rsquo
;.
8
In support of his view the learned judge called in
aid Voet and the judgment of Didcott J in
Parekh
v Shah Jehan Cinemas (Pty) Ltd & others
1980
(1) SA 301
(D).
[11] The relevant passage from Voet (4.8.11), upon which Fourie J
relied, provides:
‘
Paulus advises that it is no
arbitration by which it has been arranged for the arbitrator to give
a particular decision, nor by
which it was agreed what the judgment
ought to be. Since the whole force of a decision to be given by an
arbitrator proceeds from
the covenant of the parties, it would be
absurd that he should proceed still to take in hand and settle
matters which have already
been so disposed of by compromise of the
litigants that no greater stability can be added to them by the
arbitrator’s judgment.’
Whilst that from
Parekh
v Shah Jehan Cinemas
reads (at 304E-F):
‘
Arbitration is a method for
resolving disputes. That alone is its object, and its justification.
A disputed claim is sent to arbitration
so that the dispute which it
involves may be determined. No purpose can be served, on the other
hand, by arbitration on an undisputed
claim. There is then nothing
for the arbitrator to decide. He is not needed, for instance, for a
judgment by consent or default.’
But that was not the full dictum. It continued:
‘
All this is so obvious that it
does not surprise one to find authority for the proposition that a
dispute must exist before any
question of arbitration can arise.’
That last sentence, which Fourie J lost from sight, qualified what
had come before it in the quoted passage.
[12] So qualified, Didcott J’s dictum, I
daresay, lends no support for the more general conclusion reached by
Fourie J that
our common law does not provide for the making of an
agreed award by an arbitrator. Nor, in my view, does Voet. The
passage quoted
from Voet is headed: ‘No arbitration where
decision previously fixed’. Both authorities do no more than
state a fairly
trite principle, namely that a procedure cannot be an
arbitration unless there is a formulated dispute in existence at the
time
when the arbitrator is appointed.
9
The self evident absurdity that Voet alludes to is
that of an arbitrator proceeding ‘still to take in hand and
settle matters’
that have already been disposed of by the
parties. In a similar vein Huber (4.21.13) states: ‘When
arbitrators have accepted
the reference, they must take the case in
hand and dispose of it. . . .’ Indeed in
Telecall
(Pty) Ltd v Logan
[2000] ZASCA 97
;
2000 (2) SA 782
(SCA)
para 12, which approved the dictum of Didcott J, Plewman JA
reiterated that general principle in these terms:
‘
I conclude that before there
can be a reference to arbitration a dispute, which is capable of
proper formulation at the time when
an arbitrator is to be appointed,
must exist and there can not be an arbitration and therefore no
appointment of an arbitrator
can be made in the absence of such a
dispute. It also follows that some care must be exercised in one’s
use of the word “dispute”.
If, for example, the word is
used in a context which shows or indicates that what is intended is
merely an expression of dissatisfaction
not founded upon competing
contentions no arbitration can be entered upon.’
[13] In my view none of the authorities cited by Fourie J bear
directly on the question of whether an arbitrator may make an award
by consent in the course of a hearing following upon a valid
referral. They deal rather with whether an arbitrator can enter the
arbitration if there is no dispute between the parties. Where there
is no dispute between the parties the reference to arbitration
would
be a complete nullity from the outset. In this case however there was
a dispute between the parties when the arbitration
proceedings were
entered upon. The arbitration had in fact commenced and run for
several days before it was settled by the parties.
The parties had
agreed to the arbitrator issuing an award and it was furthermore
envisaged that the award could be made an order
of court in terms of
s 31 of the Act.
[14] The hallmark of arbitration, as reflected in
s 3(1) of the Act, is that it is an adjudication flowing from the
consent of the
parties to the arbitration agreement, who define the
powers of adjudication, and are equally free to modify or withdraw
that power
at any time by way of further agreement (
Total
Support Management (Pty) Ltd v Diversified Health Systems (SA) (Pty)
Ltd
[2002] ZASCA 14
;
2002 (4) SA 661
(SCA) para 25).
Here it was intended by the parties that the arbitration would come
to an end with the issue by the arbitrator
of the arbitral award. The
settlement agreement was dependent upon the issue of that award. Both
parties approached the arbitrator
before then with the request that
the arbitrator issue an award recording the terms agreed. I hesitate
to say that it is not possible
for parties to an arbitration to order
their affairs in that way. For, as
Russell
on Arbitration
10
points out with reference to s 51 of the English
Arbitration Act:
‘
[It
] is an “opt out”
provision so it applies unless the parties have agreed that it should
not. The section apparently
does not apply where the parties settle
part only of their dispute. The tribunal may nevertheless at common
law make an award dealing
both with the issues requiring
determination and recording the terms agreed in relation to issues
settled by agreement between
the parties.’
Moreover, various international tribunal rules
11
also expressly provide for any settlement to be
recorded in an award. Closer to home
Rule 37
of the Rules for the
Conduct of Arbitrations for the Association of Arbitrators - Southern
Africa provides:
‘
If, during the arbitration
proceedings the parties settle the dispute or any part thereof, the
Arbitrator may, if requested by the
parties, record the settlement in
the form of an Award on agreed terms.’
[15] It does not appear to me to follow that in
the absence of a statutory provision the parties would not be free to
elect to regulate
their relationship with each other as occurred
here. It must be added that almost immediately after the matter
settled, the respondent,
far from contending that the arbitrator’s
mandate had terminated, made application to re-open the proceedings.
That application
was entertained by the arbitrator. Moreover the
arbitrator issued an order for costs. That he could hardly have done
had his mandate
already been terminated, for, that was not
encompassed by the settlement agreement, but rather the arbitration
agreement which
provided that
‘
. . .
the Arbitrator, in the exercise of a judicial discretion, at the
conclusion of the Hearing, would be empowered to make an
award of
costs in favour of one or more of the parties’.
The
arbitrator here – as all arbitrators do - plainly derived his
powers from his acceptance of a reference from the parties
to the
arbitration agreement. He thereby undertook to hear their dispute and
to make an award. Only when a final award was made
did his authority
as an arbitrator come to an end and with it his powers and duties in
the reference. I thus hold that Fourie J
was wrong in his conclusion
that our common law does not permit for the making of an agreed award
by an arbitrator.
[16] That however is not the end of the matter,
for, there were two further strings to Counsel’s bow. First, he
contended
that subparagraphs a, b and c of the arbitral award are
merely declaratory of the parties’ rights. The short answer to
that
contention as
Mustill and Boyd
point out is that the law affords an arbitrator a
considerable variety of forms from which to choose the type of award
best suited
to the circumstances of the case, including the power to
make an award declaring what the rights of the parties are.
12
According to
Russell
on Arbitration
(6-117):
‘
A tribunal now has power under
section 48(3)
13
anc" HREF="#sdfootnote13sym">
13
of the [English] Arbitration
Act 1996 to make declarations in an award as to any matter to be
determined in the proceedings, provided
the parties have not agreed
otherwise in writing in the arbitration agreement. A declaration may
be made with or without a decision
on a related money claim and will
be appropriate, for example, where the parties simply want a decision
on their rights, or to
determine the existence or meaning of a
contract. The reference in the statute to “any matter to be
determined” suggests
that the power is to be construed widely.’
[17] Second, counsel contended that subparagraphs a, b and c of the
arbitral award dealt with matters outside the court’s
territorial jurisdiction and that, in principle, the high court ought
not to make an order which can only be carried into effect
outside of
its area of jurisdiction. The respondent, who is an 81-year old
Italian citizen, emigrated to this country in 1952.
Both he and the
appellant were (and had been for a considerable period of time)
within the high court’s jurisdiction at the
time the matter was
heard. It is clearly within the respondent’s power to comply
with the order of the high court. If needs
be the order could be
enforced against him by contempt of court proceedings. That remedy,
which is available to the appellant in
the event of respondent’s
failure to comply with the order, renders it sufficiently effective.
Moreover, to borrow from Streicher
JA:
‘
The order does not affect the
sovereignty of a foreign court at all. It is an order
in
personam
against respondents subject to
the Court’s jurisdiction and not against third parties. It
will, if not complied with, be enforced
in South Africa against the
respondents concerned.’
(
Metlika Trading Ltd
& others v Commissioner, South African Revenue Services
2005 (3) SA 1
(SCA) para 52.)
14
[18] It follows that the appeal must succeed and it is accordingly
upheld with costs and the order of the court below is set aside
to be
replaced with:
‘
1. The applicant’s application
succeeds with costs.
2. The arbitrator’s award published on 10 December 2007 in the
terms set out hereunder is made an order of court:
a. The remaining property in Rome, at present registered
in the name of the three brothers, shall remain as registered in
equal
undivided shares, to which the parties shall have equal rights
and remain responsible, in equal shares, for the maintenance and
upkeep, rates, taxes, levies and other charges as may be payable;
b. The remaining money held in the aforesaid account
with Banca Intesa, Rome, shall be divided in accordance with the
written agreement
signed by the parties and handed in as exhibit “C”
and a true copy of which is annexed to this award.
c. Should the amount at present held in the said account
be any different to the amount reflected in exhibit “C”,
then
the funds shall be divided in accordance with the following
ratio of division agreed upon, namely to Barbara (in her aforesaid
capacities) 7.21%; to Romolo 17.50% and to Guido 75.29%.
3. The second respondent’s counter application is dismissed
with costs.’
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: D R Mitchell SC
Instructed
by:
Bisset
Boehmke McBlain
Cape
Town
Webbers
Bloemfontein
For
First Respondent: Abides the decision of the Court
Instructed
by:
For
First Respondent: W G Burger SC
A
D Maher
Instructed
by:
Tinkler
Inc
Claremont
Rosendorff
Reitz Barry
Bloemfontein
1
Section
31 provides:
‘
(1)
An award may, on the application to a court of competent
jurisdiction by any party to the reference after due notice to the
other party or parties, be made an order of court.
(2) The court to which
application is so made, may, before making the award an order of
court, correct in the award any clerical
mistake or any patent error
arising from any accidental slip or omission.
(3) An award which has
been made an order of court may be enforced in the same manner as
any judgment or order to the same effect.’
2
Bidoli
v Bidoli
(2982/08)
[2010] ZAWCHC 41
(15 March 2010) para 28.
3
Section
51 of the English Arbitration Act 1996 provides:
‘
(1)
If during arbitral proceedings the parties settle the dispute, the
following provisions apply unless otherwise agreed by the
parties.
(2) The tribunal shall
terminate the substantive proceedings and, if so requested by the
parties and not objected to by the tribunal,
shall record the
settlement in the form of an agreed award.
(3)
An agreed award shall state that it is an award of the tribunal and
shall have the same status and
effect as
any other award on the merits of the case.
(4) The following
provisions of this Part relating to awards (sections 52 to 58) apply
to an agreed award.
(5) Unless the parties
have also settled the matter of the payment of the costs of the
arbitration, the provisions of this Part
relating to costs (sections
59 to 65) continue to apply.’
4
David
St John Sutton and Judith Gill
Russell on Arbitration
(2003)
22 ed para 6-023 and 6-025.
5
South
African Law Commission Project 94 Report on Domestic Arbitration.
6
SA
Law Commission Project 94 p 11; Marna Lourens 'The issue of
"Arbitrability" in the context of International Commercial
Arbitration (Part1)' 1999
SA Merc Law Journal
at 363.
7
Para
25.
8
Para
27.
9
MJ
M and SC Boyd
The Law and Practice of Commercial Arbitration in
England
2ed p 46-7.
10
D
StJ Sutton and J Gill
Russell on Arbitration
(2003) 22 ed
para 6-023.
11
The
following are cited by way of example:
Article 26 of the
International Chamber of Commerce (ICC) Rules, which reads:
‘
If
the parties reach a settlement after the file has been transmitted
to the Arbitral Tribunal in accordance with Article 13,
the
settlement shall be recorded in the form of an Award made by consent
of the parties if so requested by the parties and if
the tribunal
agrees to do so.’
And Article 26.8 of the
London Court of International Arbitration (LCIA) Rules, which reads:
‘
In
the event of a settlement of the parties’ dispute, the
Arbitral Tribunal may render an award recording the settlement
if
the parties so request in writing (a “Consent Award”),
provided always that such award contains an express statement
that
it is an award made by the parties’ consent. A Consent Award
need not contain reasons. If the parties do not require
a consent
award, then on written confirmation by the parties to the LCIA Court
that a settlement has been reached, the Arbitral
Tribunal shall be
discharged and the arbitration proceedings concluded, subject to
payment by the parties of any outstanding
costs of the arbitration
under Article 28.’
12
Mustill
and Boyd at 371 and 390.
13
Section
48 headed ‘Remedies’ reads
‘
(1)
The parties are free to agree on the powers exercisable by the
arbitral tribunal as regards remedies.
(2) Unless otherwise
agreed by the parties, the tribunal has the following powers.
(3) The tribunal may
make a declaration as to any matter to be determined in the
proceedings.
. . .’
14
See
also
Carmel Trading Co Ltd v Commissioner, South African Service
and others
2008 (2) SA 433
(SCA).