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[2022] ZAFSHC 172
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Road Accident Fund v Mokoena and Another In re Mokoena v Road Accident Fund (2473/2019) [2022] ZAFSHC 172 (12 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
2473/2019
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
In
the matter between:
ROAD
ACCIDENT
FUND
Applicant
and
MAHLAKODISANA
CORNELIUS MOKOENA
1
st
Respondent
THE
SHERIFF, PRETORIA EAST
2
nd
Respondent
In
re
:
MAHLAKODISANA
CORNELIUS MOKOENA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM
:
JP
DAFFUE J
HEARD
ON
:
21
APRIL 2022
ORDER
GRANTED ON
:
21
APRIL 2022
These
reasons were handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be 15h00 on 12 July
2022.
REASONS
I
INTRODUCTION
[1]
On 21 April 2022 I heard an application which was set down on the
opposed roll by
the first respondent. Having been informed by Mrs C
Bornman who appeared on behalf of the Road Accident Fund (“RAF”),
the applicant in the application, that she did not hold any
instructions at all, I excused her from further attendance for the
reasons mentioned later herein. Having heard legal argument by Adv TC
Maphelela on behalf of the first respondent, Mr MC Mokoena,
the
following orders were issued:
“
1.
The application is dismissed with costs, such costs to be paid on an
attorney
and client scale.
2.
Reasons to follow in due course.”
These
are my reasons. Insofar as I did not receive the benefit of
argument on behalf of the RAF, I shall curtail my judgment.
II
THE PARTIES
[2]
The applicant is the RAF, a juristic person established in terms of s
2(1) of the
Road Accident Fund Act (“the RAF Act”).
[1]
[3]
The first respondent is MC Mokoena a major male person, represented
by Adv Maphelela,
instructed by SB Seshibe Attorneys, c/o Matsepes
Inc in Bloemfontein.
[4]
The second respondent is the Sheriff, Pretoria East, appointed in
terms of s 2 of
the Sheriff’s Act.
[2]
The Sheriff did not oppose the application and played no role
in the proceedings.
III
THE RELIEF CLAIMED
[5]
The RAF claimed the following relief in its notice of motion:
“
1.
Suspending the operation and execution of the Warrant of Execution
issued by this Honourable
Court on 06 September 2021, pending the
finalization of the rescission application to be instituted by the
Applicant;
2.
The Applicant be directed to institute the rescission application
within 10 days
of this order.
3.
The Second Respondent is interdicted and restrained from proceeding
with any
further steps in execution against the Applicant.
4.
The Respondents to pay the costs of this application, only in the
event of opposition.”
IV
THE DEFENCES RAISED
[6]
The first respondent raised the following defences:
6.1
the RAF had an alternative remedy, bearing in mind the meeting that
took place between representatives
of the parties on 25 November 2021
and the undertaking that the matter would be discussed with RAF’s
Regional Manager where
after they would revert to the first
respondent’s attorney before 2 December 2021 which they failed
to do, but instead issued
the present application whilst all along
the RAF knew for months that they had to apply for rescission of
judgment if they believed
that they could make out a proper case for
such relief;
[3]
6.2
the RAF was fully aware of the trial dates, but failed to attend the
hearing; and thereafter
became aware of the judgment and order issued
on 27 November 2020 as well as the amended court order of 4 February
2021, but used
delaying tactics to avoid payment;
[4]
6.3
the RAF is guilty of contempt of court for failing to pay in line
with the judgment in
RAF
v Legal Practice Council & others
[5]
whilst
it did not seek condonation;
[6]
6.4
the RAF, being fully aware of the trial dates, failed to attend and
defend the matter without
providing any reasons for its failure;
furthermore, the RAF contradicted itself in that it appears from the
founding affidavit
that it is not only dissatisfied with the
quantum
awarded,
but that it rejected the claim on the basis that the first respondent
was the sole cause of the collision.
[7]
V
THE HISTORY OF THE LITIGATION
[7]
The following is a history of the litigation between the parties:
7.1
the first respondent, having been injured on 14 December 2018, lodged
a claim for compensation
with the RAF on 23 January 2019;
7.2
upon rejection of the claim summons was issued under case number
2473/2019 on 3 June 2019
to which the RAF pleaded, contesting the
merits as well as the
quantum
of the claim;
7.3
on 21 September 2020 a pre-trial conference was held when the parties
represented by Adv
Boonzaaier (for the first respondent) and Mr
Albert Cilliers (for RAF) confirmed that all relevant expert reports
had been served
and filed whereupon the matter was declared
trial-ready;
[8]
7.4
on 23 September 2020 a notice of set down for hearing on 27, 28 &
30 October 2020 was
emailed to Mr Albert Cilliers and three other
email addresses of the RAF
[9]
as
the mandate of Maduba Attorneys, the RAF’s former attorneys,
had been terminated;
7.5
on 27 October 2020 judgment was reserved and on 27 November 2020
judgment was apparently
handed down - the written judgment is neither
contained in the court file, nor published in Saflii – but the
last page thereof
depicting paragraph 31 is affixed to the file
cover;
7.6
I accept that the evidence of the first respondent as plaintiff was
tendered in respect
of the merits of his claim and as a result the
trial court held the RAF fully (100%) liable for any damages to be
proven or agreed
upon;
7.7
the trial court initially awarded amounts of R1 013 333.00
for loss of income
and R600 000.00 for general damages and
directed the RAF to furnish the usual undertaking in terms of s
17(4)(a) of the RAF
Act and to pay costs, inclusive of the fees of
expert witnesses;
7.8
e
x
facie
the
court file the trial judge amended the order on 7 December 2020 in
terms of Rule 42(1)(b) as a “patent error” had
occurred
and consequently, another order dated 27 November 2020 was issued
(without stipulating that it was an amended order) in
terms whereof
R2 744 532.00 was awarded for loss of income and
R600 000.00 for general damages;
[10]
7.9
communication between the parties followed and two further orders
were issued dated 4 February
2021, apparently after discussions with
the trial judge; the first order merely referring to an amendment of
paragraph 1 of the
previous order to substitute the amount awarded
for loss of income with the amount of R4 574 222.00;
[11]
7.10
the second order dated 4 February 2021 – not indicating that it
is an amended order - is a more
detailed order and caters for the
payment of loss of income in the amount of R4 574 220.00
and general damages in the
amount of R600 00.00 together with all
further orders initially issued on 27 November 2020;
[12]
7.11
on 17 May 2021 the trial judge made a note in the file, indicating
that the parties approached her
and requested the orders of 27
November 2020 and 4 February 2021 to “be consolidated as RAF
wishes to pay Plaintiff, but
only if the court orders are
consolidated.”
7.12
numerous emails and other communication followed since then between
the parties and eventually a roundtable
discussion took place on 25
November 2021 during which meeting the first respondent’s legal
representative was requested
to abandon the judgment and accept an
apportionment on the merits which request was declined;
[13]
7.13
the RAF launched the present application soon after the meeting and
in terms of the notice of motion
the application was to be heard on
20 January 2022, obviously on the assumption that it would not be
opposed, but if the notice
of motion is read in context, it is clear
that time was allowed for opposition and filing of an answering
affidavit beyond the
aforesaid date;
[14]
7.14
on 21 December 2021 a notice of opposition was sent to the RAF per
email, but a hard copy of this document
was only filed with the court
on 19 January 2022 together with the answering affidavit;
7.15
the matter was not supposed to be enrolled, but the general office,
being unaware of the notice of
opposition sent by email to the RAF,
placed it on the unopposed roll;
7.16
when the RAF discovered this, it filed a notice of withdrawal of the
application without tendering
costs, which turned out to be incorrect
as it had no such intention at that stage, (a notice to remove the
matter from the unopposed
roll was supposed to be delivered);
7.17
the RAF recognised that it had filed an incorrect notice and
consequently, a notice of removal of the
roll was sent by email
without a hard copy being filed with the court;
7.18
the matter, which was hereafter set down by the first respondent for
hearing on 24 March 2022, was
allocated to the trial judge who
removed it from the roll at the request of the RAF, no order as to
costs, as there was no appearance
on behalf of the first respondent
when the matter was called;
[15]
7.19
the RAF did not file a replying affidavit and although heads of
argument were filed on behalf of the
first respondent, no heads of
argument were forthcoming from the RAF;
7.20
the first respondent, being dissatisfied with this state of affairs,
set the matter down for hearing
on 21 April 2022 on which date it was
heard by me;
7.21
I, being unaware of the mistake pertaining to the withdrawal of the
application instead of removal
from the roll, pointed out at the
onset to first respondent’s counsel, Mr Maphelela, that I could
not adjudicate the application
as there was in fact no live
application before the court, it having been withdrawn before the
notice of opposition was filed and
thus causing the matter to fall
outside the ambit of Rule 41;
7.22
I let the matter stand down and requested Mr Maphelela to contact a
representative of the RAF to ascertain
the correct facts as well as
the RAF’s stance to the litigation;
7.23
Mrs Bornman arrived at court and confirmed that she held no
instructions from the RAF to argue the
application, but recorded that
the RAF had decided not to proceed with the application as it
intended to pay the first respondent
what was due to him in
accordance with the correct order; she pointed out that the RAF was
in possession of two different orders
for 27 November 2020 and two
further different orders for 4 February 2021, and based on this
confusion, the RAF did not know how
to deal with the matter;
7.24
Mr Maphelela confirmed that the registrar issued a writ of execution
in accordance with the second
order of 4 February 2021, to wit the
document attached to the founding affidavit mentioned above;
7.25
bearing in mind what I have stated above, it is surprising that the
RAF did not rely in its application
on the confusion created by four
different orders, but took a totally different stance as I shall
explain hereunder.
VI
THE RATIONALE FOR THE RELIEF SOUGHT
[8]
The RAF relied on two statutory provisions for the relief sought, to
wit rule 45A
of the Uniform Rules of Court and s 173 of the
Constitution.
[16]
Rule
45A reads as follows:
“
The
court may, on application, suspend the operation and execution of any
order for such period as it may deem fit: Provided that
in the case
of appeal, such suspension is in compliance with section 18 of the
Act.”
Section
173 of the Constitution reads as follows:
“
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interest of justice.”
[9]
A writ of execution was served by the Sheriff, cited as the second
respondent, on
the RAF at its principal place of business in
Pretoria. He received instructions thereafter from the first
respondent’s
attorney to remove the attached assets in order to
proceed with an auction thereof. The sheriff’s return of
service
and notice of attachment are not in the court file. I
accept, as stated by the RAF’s deponent, Me Lydia Mulaudzi, an
Acting Senior Manager: Claims, that computers, laptop computers,
desks and chairs were attached and if these attached assets were
to
be removed and eventually sold, it would be impossible for the RAF to
continue with its daily business in order to comply with
its
statutory obligations.
[17]
[10]
The RAF in essence sought an
interim
order pending institution
and finalisation of an application for rescission of the aforesaid
judgment. The rescission application
has not been issued and no
doubt, as conveyed by Mrs Bornman, it is now evident that the RAF has
no intention to do so.
[11]
Although the RAF intended to launch an application for rescission of
the judgment and the orders
granted herein, not a single material
averment has been recorded to indicate that the application for
rescission has any merit.
I shall explain when the evidence is
evaluated hereunder.
VII
EVALUATION OF THE EVIDENCE AND SUBMISSIONS ON BEHALF OF THE FIRST
RESPONDENT
[12]
As mentioned, the RAF at long last decided not to proceed with its
application to have the writ
of execution set aside pending the
institution and finalisation of an application for rescission of
judgment, but contrary thereto,
it failed to withdraw the
application. Consequently, I am bound to consider the
application based on the founding and answering
affidavits, together
with the submissions made on behalf of the first respondent.
[13]
Initially, the RAF’s deponent recorded that it intended to
apply for rescission of the
“quantum order”.
[18]
No material facts were placed before the court in order to
consider whether there were any reasonable prospects of success
in
the intended application for rescission. Later on in the
founding affidavit the deponent changed tack and challenged the
judgment insofar as an order was granted against the RAF on the
merits. In support of this allegation, reference was made
to
the accident report of the SAPS and the respective drivers’
alleged statements, indicating that the first respondent lost
control
of his vehicle and inappropriately and negligently caused his vehicle
to enter the insured driver’s lane of traffic
and as a result
caused a collision. Consequently, the RAF rejected the claim as
it could not attribute any negligence to
the insured driver.
[19]
No confirmatory affidavits of the insured driver, SAPS officials, or
eyewitnesses were attached to the founding affidavit,
but more
importantly, the RAF failed to explain why the relevant evidence was
not tendered during the trial.
[14]
It is common cause that the RAF is in dire financial straits.
[20]
It is also flooded with numerous demands for payment following
judgments in favour of thousands of claimants.
In
casu
,
the attorney for the first respondent attached to the papers a letter
of demand on behalf of four of his clients. These
claims range
between as low as the first respondent’s claim in the amount of
R 5 174 220.00 to as high as R8 209
750.00.
[21]
Bearing in mind my experience as a judge in this division as well as
co-author of
Corbett
& Honey: The Quantum of Damages in Bodily and Fatal Injury Cases,
I
can safely say that awards in motor vehicle claims in accordance with
the RAF Act have skyrocketed in recent years. Whereas
in the
past awards in excess of one million rand were exceptional, nowadays
awards more often than not are in excess of a million
rand.
Having recognised the effect of inflation, it is not the purpose of
this judgment to analyse the dominant reasons and/or
to make any
submissions in this regard, save to say that unless a total overall
of the RAF Act and the management of claims under
the Act are dealt
with rather sooner than later, the system will soon collapse
completely.
[22]
I
mentioned the increase in the average claim, but the increase in the
number of claims is apparently beyond all expectations.
Furthermore, a booming industry has developed: in the majority of
cases in which I have been involved over the years, and especially
more recently, five, six and as many as eight specialists are being
instructed to file expert reports on
quantum
in
any given case.
[15]
If the application was indeed withdrawn on 17 January 2022, the first
respondent would not be
entitled to the costs of the answering
affidavit, the further attendances, the drafting of heads of argument
and the attendance
in the opposed motion court on 21 April 2022.
Now that it has been established that the RAF never intended to
withdraw the
application at that stage, it is not necessary to
consider ordering costs in favour of the first respondent until such
time only.
[16]
I am really perturbed with the manner in which the RAF approached the
present litigation.
If it had clear evidence in respect of the
merits to counter the plaintiff’s version, it was duty-bound to
ensure that the
merits were properly defended. It is
unbelievable and totally unacceptable that it failed to present
material evidence to
the trial court. If it was really
uncertain as to what amount or amounts were payable to the first
respondent after it neglected
to properly defend the claim, it would
have been easy for it and the first respondent to approach the trial
judge in order to get
clarity. Having said this, I have to
accept that the parties indeed approached the trial judge in chambers
on 17 May 2021
for a so-called “consolidation” of the
court orders. If the initial orders issued on 27 November 2020
are read
with the order which the RAF attached to the founding
affidavit – “RAF2” - there cannot be any doubt
which of
the two orders dated 4 February 2021 is correct. Court
orders, as long as they stand, cannot be ignored. I refer in
this regard to a recent judgment of the Supreme Court of Appeal that
also dealt with the interpretation of court orders, relying
on
several other well-known judgments.
[23]
Clearly, the award of general damages in the amount of R600 000.00
never changed. The RAF was obliged to issue
an undertaking in
terms of s 17(4)(a) and the RAF had to pay the costs of the action,
including the costs of the experts mentioned
in the initial orders.
The only issue, which unfortunately caused uncertainty, is the
amendment of the award pertaining to
loss of income on more than one
occasion, from as low as just over R1 million to R4 574 220.00.
[17]
This judgment should not be understood to lay down a general
principle that no party may approach
the court on an urgent basis for
the suspension or setting aside of a writ of execution pending
institution and finalisation of
an application for rescission of
judgment. No doubt, many instances may occur which necessitate
such a procedure. One
example shall suffice: a defendant on an
overseas’ trip of six weeks may return to this country, only to
find the Sheriff,
having unlocked his home, in the process of
removing furniture and one of his vehicles. If the summons was
served by leaving
a copy in the post-box at home in the temporary
absence of the defendant, where after judgment by default was
obtained and a writ
of execution issued, such defendant would surely
be entitled to obtain an urgent interdict to prevent the Sheriff from
proceeding
pending the institution and finalisation of an application
for rescission of judgment on condition that the four requisites of
interlocutory interdicts are met.
[18]
I quoted rule 45A above. It does not allow a court to suspend
orders without reason.
Relief in terms of this rule is not
there for the taking. A court has, apart from the provisions of
the rule, an inherent
discretion in terms of the common law to order
a stay of execution, but such discretion shall be exercised
judicially. In
principle, a stay will be granted to prevent an
injustice. An application for the rescission of a court
order does
not automatically suspend its execution. The remedy lies
in rule 45A. A stay of execution will be granted where the
underlying
causa
of
the judgment debt is being disputed or no longer exists,
[24]
or
when an attempt is made to use for ulterior purposes the machinery
relating to the levying of execution.
[25]
A court should be careful to act on ideas such as the interests of
justice, equity or public policy to prevent execution
upon a valid
and uncontested judgment.
[19]
Although there is a difference of opinion in this regard, I am of the
view that in the determination
of the factors to be taken into
account in the exercise of a discretion under rule 45A, a court may
in appropriate circumstances
borrow from the requirements for the
granting of an interlocutory interdict, namely that the applicant
must show
(a)
that the right which is the subject of
the main action and which he seeks to protect by reason of the
interim
relief is clear or, if not clear, is
prima facie
established though open to some doubt;
(b)
that if
the right is only
prima facie
established, there is a
well-grounded apprehension of irreparable harm to the applicant if
the
interim
relief is not granted and he ultimately succeeds
in the establishing of his right;
(c)
that the
balance of convenience favours the granting of
interim
relief;
and
(d)
that the applicant has no other satisfactory
remedy.
[20]
In
Firm
Mortgage Solutions (Pty) Ltd v Absa Bank Ltd
[26]
the
court, relying on
dicta
in
Gois
t/a Shakespeare’s Pub v Van Zyl & others
,
stated the following:
“
It
is clear that what was intended in this case was that, where the
causa for the execution is a judgment, and the judgment is placed
in
dispute because an application for rescission has been brought,
grounds may well exist for the exercise of a favourable discretion
by
a court.”
In
Stoffberg
NO v Capital Harvest (Pty) Ltd
[27]
Binns-Ward
J, after an analysis of the case law and the general principles for
the granting of a stay of execution, not only criticized
the judgment
of Davies J in
Firm
Mortgage Solutions supra
,
but concluded as follows:
“
[26]
The broad and unrestricting wording of rule 45A suggests that it was
intended to be a restatement of
the courts’ common law
discretionary power. The particular power is an instance of the
courts’ authority to regulate
its own process. Being a judicial
power, it falls to be exercised judicially. Its exercise will
therefore be fact specific and
the guiding principle will be that
execution will be suspended where real and substantial justice
requires that. “Real and
substantial justice” is a
concept that defies precise definition, rather like “good
cause” or “substantial
reason”. It is for the court
to decide on the facts of each given case whether considerations of
real and substantial justice
are sufficiently engaged to warrant
suspending the execution of a judgment; and, if they are, on what
terms any suspension it might
be persuaded to allow should be
granted.”
[21]
Already, as we have become accustomed over the years, the RAF settles
matters on the basis that
the judgment debt shall not be payable
before the expiry of 180 days. No reasons have been advanced in
this application why
this period should be extended any further.
I cannot think of any reason at all, save for the observations made
above in
respect of the RAF’s precarious financial situation.
If the RAF was a commercial company, sufficient grounds would have
existed for it to be liquidated.
[28]
[22]
Section 173 of the Constitution cannot come to the RAF’s
assistance
in
casu
,
although the High Court has been granted the inherent power to stay
execution if it is in the interests of justice. Although
the
High Court invoked the section and its inherent common-law power
in
Road
Accident Fund v Legal Practice Council,
[29]
and
not rule 45A to stay execution, the Constitutional Court held
in
Mukaddam
v Pioneer Foods (Pty) Ltd
[30]
that
the inherent jurisdiction of the High Court under
s
173
to regulate its own process cannot override provisions
of the Uniform Rules of Court directly making provision for relief.
[23]
The RAF knew about the judgment soon after 27 November 2020 as well
as the “consolidated”
order dated 4 February 2021 (which
I accept was finally amended on 17 May 2021 for the reasons mentioned
above), but it waited
months – at worst for it eleven months
and at best seven months - before it instituted the application and
then delayed the
finalisation thereof for another five months only to
throw in the proverbial towel midstream. I do not sit as a
court of
appeal in respect of the judgment, either in respect of the
merits or the
quantum
of the first respondent’s claim
and save for stating that the
quantum
appears to be high,
bearing in mind the circumstances of the case and after having
perused the expert reports, and in particular
the report of Munro
Actuaries calculating loss of income based on three scenarios
in the amounts of R1 051 475.00,
R1 965 550.00 and
R4 574 220.00 respectively, it remains a fact that the RAF
did not utilise the correct process
in order to first of all properly
defend the matter and secondly, to immediately apply for rescission
of judgment if there was
really a ground to rely on for such
application to be successful. Much to the exasperation of the
first respondent, the RAF
did not deal with the matter as could be
expected, but all of a sudden and out of the blue launched the
present proceedings.
The approach of the RAF is regarded by the
first respondent as unethical. I cannot disagree.
[24]
Mr Maphelela submitted that the court should consider to award
punitive costs
de bonis propriis
against the RAF’s
deponent, Me Lydia Mulaudzi. Obviously, if the court were to
consider making such an order, Me Mulaudzi
should have been called
upon to present reasons why such an order should not be made against
her in her personal capacity.
Mr Maphelela also acknowledged
that such order might not be in the interest of his client as it was
uncertain if this person was
financially in a position to pay any
order granted against her. He submitted that the RAF is crying
foul all the time about
the wasting of public funds, but in many
instances, it is the RAF and its officials that cause unnecessary
wasted costs.
This application is a typical example.
Officials of organs of state shall take responsibility for the manner
in which they
allow their organisations to deal with private citizens
in particular who are often poor people and the most appropriate way
to
ensure this is to order costs
de bonis propriis
against
them.
In casu
, I decided to finalise the matter without
causing further delay and costs.
[25]
My approach to adjudication of the application would have been
totally different if the RAF simultaneously
applied for rescission of
judgment based on a proper factual foundation, or at least presented
facts in the present application
to show some prospects of success in
setting aside the judgment. The common cause facts point
in one direction only:
in failing to turn up for the trial, the RAF
was in wilful default. It is unthinkable that any court would
be inclined to
grant the relief sought in the notice of motion.
VIII
CONCLUSION
[26]
I have dealt with the history of the litigation in much detail and
also referred extensively
to the reasons why I granted the orders as
set out in paragraph 1 above. Hopefully, these reasons will
assist colleagues
in determining whether or not relief should be
granted to applicants who approach the court, often
ex parte
while alleging extreme urgency, to have writs of execution set aside
or suspended pending institution and finalisation of applications
for
rescission of judgment. More often than not, a stay of
execution is merely a delaying tactic by a litigant that has no
real
intention to defend the plaintiff’s claim in the main action,
even if rescission of judgment is eventually granted in
his/her/its
favour.
DAFFUE
J
On
behalf of the Applicant: Mrs
C Bornman
Instructed
by: RAF
c/o State Attorney
BLOEMFONTEIN
On
behalf of the 1
st
Respondent: Adv
TC Maphelela
Instructed
by: Matsepes
Inc
BLOEMFONTEIN
[1]
56
of 1996
[2]
90
of 1987
[3]
Answering
affidavit: para 4, pp 51 - 53
[4]
Ibid
:
para 5, pp 53/4
[5]
2021
(6) SA 230 (GP)
[6]
Ibid
:
para 6, p 54 and further
[7]
Ibid:
paras 7 – 21, pp 56 – 60 & numerous correspondence:
“TC11” – “TC37”, pp 108
- 155
[8]
The minute prepared by me is attached as annexure TC6, pp 99 &
100
[9]
Annexures “TC1” – “TC3”, pp 91 - 94
[10]
Annexure “TC13”, pp 111/2
[11]
Annexure “TC14”, p
113
[12]
Annexure
“RAF2” attached to the RAF’s founding affidavit, p
31
[13]
Answering affidavit, paras 34 & 35, p 64
[14]
Notice of motion, pp 4 -6
[15]
As confirmed by Mrs Bornman in court
[16]
Act
108 of 1996
[17]
Founding affidavit: para 8, p 14
[18]
Founding affidavit: para 5.2, p 11
[19]
Ibid:
para 16, p 23/4
[20]
Ibid
:
para 10, pp 15/16
[21]
Answering
affidavit: annexure “TC33”, pp 142 - 145
[22]
RAF’s deponent hints in that direction: Founding affidavit,
paras 6.1, 10, 11, 12, 18 & 19
[23]
Moraitis Investments (Pty) Ltd & others v Montic Dairy (Pty)
Ltd
2017 (5) SA 508
(SCA) para 10 & further
[24]
Road Accident Fund v Strydom
2001 (1) SA 292
(C) at 300B
[25]
Brummer v Gorfil Brothers (Pty) Ltd
1999 (3) SA 389
(SCA) at 418E -
G
[26]
2014
(1) SA 168 (WCC)
p 170 F - G
[27]
WCC case no 2130/2021 dated 2 March 2021 (unreported)
[28]
Sub-sections 344(f) & (h) of the
Companies
Act, 61 of 1973
[29]
2021
(6) SA 230 (GP)
paras 30 - 35
[30]
2013
(5) SA 89 (CC)
paras 31 & 32