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[2022] ZAMPMBHC 73
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Sefiso Sekuya Embili Agricultural Cooperative v Akwandze Agricultural Finance (Pty) Ltd (15/2021) [2022] ZAMPMBHC 73 (26 January 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: 15/2021
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
In the matter between:-
THE SEFISO SEKUYA
EMBILI AGRICULTURAL COOPERATIVE
(Registration
Number: 24322A/2014/019158/24)
Plaintiff/Respondent
and
AKWANDZE
AGRICULTURAL FINANCE (PTY) LTD
Defendant/Excipient
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
The plaintiff instituted action against the
defendant, seeking re-instatement of the Job Fund Project for the
establishment of 53
hectares of sugar cane, re-instatement of the
grant of R4,3 million and the re-instatement of a loan in respect of
the Job Fund
Project.
[2]
The defendant filed an exception to the
plaintiff’s particulars of claim, setting out nine grounds of
complaint founded on
3 bases:- (1) the particulars of claim is vague
and embarrassing and/or (2) does not disclose a cause of action
and/or (3) does
not comply with Rule 18(6).
BACKGROUND
[3]
Although the run-up to the exception seems
to be common cause it is necessary to briefly deal therewith.
[4]
Summons was served on the defendant on/or
about 10 February 2021, whereafter the first- to fourth defendants
(in the main action)
entered appearances to defend the action on 23
February 2021.
[5]
On/or about 19 March 2021 the defendant
caused a notice of intention to except, requiring the plaintiff to
remove the causes of
complaint, to be served on the plaintiff.
[6]
On 14 April 2021 the plaintiff served a
reply to the defendant’s notice of exception and a notice of
intention to amend its
particulars of claim. Eight days later, and on
26 April 2021 the plaintiff prematurely served an amended particulars
of claim.
[7]
On 28 April 2021 the defendant served a
notice of objection to the intended amendment by the plaintiff.
[8]
On 7 May 2021 the plaintiff served a reply
to the defendant’s objection in terms of Rule 28(3) in which it
withdrew the intended
amendment, and served a new notice of intention
to amend its particulars of claim.
[9]
On/or about 20 May 2021 the defendant
served a notice of objection to the plaintiff’s second intended
amendment. Not receiving
an application to amend, nor a new notice of
intention to amend, the defendant on 4 June 2021 caused its notice of
exception in
terms of Rule 23(1) to be served on the plaintiff. Said
exception was opposed by the plaintiff on 10 June 2021, resulting in
the
matter before court.
[10]
After the delivery of the exception and
plaintiff’s notice of opposition the plaintiff delivered a
further notice of intention
to amend dated 8 July 2021. On 21 July
2021 the defendant again filed a notice of objection to this
amendment.
[11]
No application to amend followed pursuant
to said objection.
APPROACH TO
EXCEPTIONS
General
[12]
The
approach to exceptions is trite. A defendant in an action is entitled
to be protected against having to incur expenses in defending
an
action which does not contain averments that could sustain a cause of
action.
[1]
[13]
An
exception complains of a defect which is inherent in the pleading,
and the purpose is to weed out cases with no legal merit.
Accordingly
it is directed at the disposal of a case, either in whole or in part,
where no cause of action has been disclosed.
An exception such is in
the present matter must go to the root of the claim, and therefore
dispose of the leading of evidence at
trial.
[2]
[14]
When an
exception is taken, the court must look at the pleading excepted to
as it stands.
[3]
No facts
outside of those set out in the pleading can be considered, and the
allegations of fact relied upon in the pleading must
be taken to be
correct.
[4]
[15]
It is
generally accepted and adopted by the Appellate Division that a
“cause of action” is that as defined in the matter
of
McKenzie
v Farmers’ Cooperative Meat Industries Ltd
[5]
as follows:-
“…
Every
fact which would be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment of the court.
It
does not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary to be proved
.”
[16]
In suitable
cases legitimate inferences can be drawn as to the meaning of the
particulars, and by implication the necessary averments
can be
supplied.
[6]
While the court
should endeavour to look benevolently instead of over-critically at a
pleading, it should not be pushed that benevolence
to the length of
upholding a declaration or particulars of claim, which as it stands,
discloses no cause of action, by altering
its language, by reading
into it what is not there, and ignoring what is, and by thus making
for the plaintiff a cause of action
he has not himself put up.
[7]
Exceptions:
vague and embarrassing
[24]
Rule 23(1) provides that an exception may be taken against a pleading
on the grounds that it is vague and embarrassing.
Such an exception
strikes at the formulation of the cause of action and not its legal
validity.
[8]
[25]
A pleading may be vague if it fails to provide the degree of detail
necessary in a particular case to inform
the other party of the case
being advanced.
[9]
The typical
prejudice which justifies an exception is if the allegations in the
particulars of claim are such that the defendant
is unable to plead
properly.
[10]
[26]
The question is whether “
the
embarrassment is, or is not, so serious as to cause prejudice to the
excipient if he is compelled to plead to the paragraph
in the form to
which he objects
”.
The evaluation of prejudice is a factual enquiry, and is a question
of degree. The decision must necessarily be influenced
by the nature
of the allegations, their content, the nature of the claim and the
relationship between the parties.
[11]
Exceptions
: no cause of action
[28]
As stated in
McKelvey
v Cowan
NO
[12]
:
“
It is a first
principle in dealing with matters of exception that, if evidence can
be led which can disclose a cause of action alleged
in the pleadings,
that particular pleading is not excipiable. A pleading is only
excipiable on the basis that no possible evidence
led on the pleading
can disclose a cause of action.”
[30]
In
Vermeulen
v Goose Valley Investments (Pty) Ltd
[13]
Marais JA it was stated that:
“
[7] It is trite
law that an exception that a cause of action is not disclosed by a
pleading cannot succeed unless it be shown that
ex facie the
allegations made by a plaintiff and any document upon which his or
her cause of action may be based, the claim is
(not may be) bad in
law.”
[14]
PLAINTIFF’S
PARTICULARS OF CLAIM
[17]
Under the heading “
CAUSE
OF ACTION
”
the plaintiff
pleads as follows:-
“
5.
On about 10 June 2020
an agreement between the plaintiff represented by Judith Mhlongo and
the defendant, represented by Dave Thomson
was entered into at
Malelane the terms of which were as follow:
5.1.
The defendant approved a Job Fund Grant of R4 300 000.00 and a loan
of R1 378 000.00 for the establishment
of 53.00 hectares of
sugar cane subject to certain conditions accepted by the plaintiff;
5.2.
Defendant started to implement the agreement with the appointment of
the plaintiff as the main contractor
in the a (sic) funds project for
the establishment of 53 hectares of sugar cane and defendant invited
tenders for the supply and
installation of pivotal irrigation for
this project;
5.3.
The grant of R4.3 million was to be provided by the defendant to the
plaintiff to be applied to the above
purpose;
5.4.
A loan of R1 378 000.00 was to be provided by the defendant to the
plaintiff
of which the funds were to be
utilized for the purpose mentioned in 5.1 above.
6.The
defendant’s written confirmation that the above was approved is
annexed hereto as annexure ‘
SSE1
’.
As shown in this annexure the material conditions to the approval
were:
6.1.
The loan was repayable in 12 monthly instalments of R285 458.00 or
20% of the proceeds from the sugar
cane crops that were to be
established;
6.2.
A first cession was required to have been lodged with the mill
against the plaintiff’s sugar cane proceeds;
6.3.
The loan was to be activated with the first draw down within 6 months
from the 10th of June 2020;
7.The
above conditions, along with all other conditions set out in ‘
SSE1
’
were accepted by the plaintiff and formed part of the agreement that
came into between the parties as set out above.
8.The
defendant had on the 11
th
of October 2020 unilaterally repudiated the agreement without good
reason to do so.
9.The
abrupt repudiation by the defendant has prevented the plaintiff from
meeting the term to the agreement mentioned in 6.3 above.
10.Specific
performance was demanded from the defendant in writing on the 7
th
of December 2020 as per the letter annexed hereto as annexure ‘
SSE2
’.
11.
To date hereof the plaintiff’s demand has
not been complied with.
WHEREFORE
the plaintiff claims:
1.
That the defendant re-instates the
Job Fund Project for the establishment of 53 hectares of sugar cane
as approved on 10 June 2020
and continues to implement it;
2.
The re-instatement by the defendant
of the grant of R4,3 million in respect of the above project;
3.
The re-instatement by the defendant
of the loan in respect of the above project;
4.
That the defendant pays the cost of
suit;
5.
Further or alternative relief.
”
THE PARTIES’
COMPETING CONTENTIONS
[18]
The approach and arguments by the parties
is passing each other like ships in the night. The defendant contends
and founds its argument
thereon that the particulars of claim has
never been amended. The plaintiff on the other hand seems to contend
that the court should
consider the exception having regard to the
proposed amendment dated July 2021. In this respect the plaintiff
sought that where
reference is made to the amended particulars of
claim, it should read the proposed amended particulars of claim.
[19]
In
this respect and employing the principle set out in
Salzmann
v Holmes
,
[15]
a court must look at the pleading excepted to as it stands, and no
facts outside those stated in the pleading can be brought into
issue,
except in the case of inconsistency. A court is directed to look at
the pleading excepted to as it stands.
[16]
[20]
I can accordingly not head the argument by the plaintiff that
consideration ought to be had to the proposed amended particulars
of
claim. Until such time as the amendment has been authorised by court,
as envisaged in Rule 28 the only particulars before court
(and the
one excepted to) is the original.
[21]
No facts
outside of those set out in the pleadings can be considered, and the
allegations of fact relied upon in the pleadings must
be taken to be
correct.
[17]
Similarly the
facts and circumstances set out in the various documents headed
“
Plaintiff’s
reply to Defendant’s notice of Exception
”
and “
Plaintiff’s
reply to Defendants Objection in term of Rule 28(3)”
can
play no role in the adjudication of the excipiablity or not of the
particulars of claim.
[22]
There are no provision in either Rule 23 or Rule 28 for such replies
as delivered by the plaintiff. I was also not referred
to any
authority in support of such replies. There content is irrelevant of
the purpose of the exception.
[23]
It is on this basis that I proceed to
adjudicate upon this exception.
First ground of
complaint
[24]
The first ground of complaint is directed
at paragraph 5 of the particulars of claim. In paragraph 5 (as quoted
above) the plaintiff
alleges its cause of action to be founded on an
agreement. The defendant argues that in doing so, the plaintiff has
materially
failed to comply with the requirements of pleading an
agreement as stated in Rule 18(6). More particularly that the
plaintiff failed
to comply with the rule as it did not plead whether
the contract was written or oral, where the contract was concluded,
and to
the extent that the contract is written, failed to annex a
copy thereof to the particulars of claim.
[25]
In this respect the defendant relied on
Moosa and Others NNO v Hassam and Others
NNO
2021 (2) SA 410
(KZP) at par [19]
where it was held that the failure to annex a written agreement
relied upon to the particulars of claim, causes
a “
link
in the plaintiff’s chain of causes of action to be missing
”
.
[26]
It was further contended on behalf of the
defendant that an exception on this basis has been previously been
upheld the matter of
Roberts’
Construction Co Ltd v Dominium Earthworks (Pty) Ltd and Another
1968 (3) SA 255
(A).
[27]
Other than referencing that paragraph 5 to
9 of the proposed amended particulars of claim reflect the agreement
relied upon by the
plaintiff, nothing further was argued in this
respect.
[28]
Rule 18(6) which determines as follows:-
“
A
party who in his pleadings rely upon a contract shall state whether
the contract is written or oral and when, where and by whom
it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the pleading shall be annexed
to the pleading
.”
[29]
This ground of complaint is upheld.
Second ground of
complaint
[30]
The second ground of complaint is directed
to paragraph 5.1 of the particulars of claim, wherein the plaintiff
pleads that a grant
and loan were approved “
subject
to certain conditions accepted by the plaintiff
”
.
[31]
It
was argued that the plaintiff relies on an agreement, which agreement
is subject to “certain terms”, but fails to
plead the
nature and extent of these conditions, and also fails to plead
whether they were fulfilled or complied with. With reference
to the
work by
Harms
[18]
it was contended that it is trite that when a plaintiff relies on a
contract which is subject to conditions, such plaintiff is
obliged to
allege and prove, not only the conditions, but also that the
conditions had been fulfilled.
[32]
In amplification the court was referred to
the matter of
Kate’s Hope Game
Farm (Pty) Ltd Terblanche Hoek Game Farm (Pty) Ltd
1998
(1) SA 235
(SCA) at 241, where it was held as follows:-
“
This
means that not only must an appellant prove the agreement, but also
that it is enforceable. The appellant had to prove non-fulfillment
of
the condition mentioned, i.e., that the remaining members of the
association had not given their consent to the respondent’s
intention to press for the give and take fence now under discussion.
The rule is that the litigant, whether the plaintiff or the
defendant, relying on a contract that is subject to a condition must
plead and prove the condition and its fulfilment (Pillay v
Krischner
and Others
1947 AD 946
at 952; Resisto Dairy (Pty) Ltd v Auto
Protection Insurance Co Ltd 1963 (1) SA 632 (A) at 644G-H)
”
[33]
Absent a challenge in this respect, the
defendant’s argument prevails and this ground of complaint is
upheld.
Third
ground of complaint
[34]
The defendant contends that the plaintiff in paragraph 7 of the
particulars of claim pleads that the conditions set out
in annexure
“SSE1” were accepted by the plaintiff.
[35]
Annexure “SSE1”, in the introductory paragraph, states
the following:-
“
We have
pleasure in advising you that a job’s fund grant of
R4 300 000.00 and a loan of R1 378 000.000
for
the establishment of 53 hectares of sugar cain, has been approved
under the
following conditions,
read in conjunction with the loan terms and conditions pertaining to
this loan
:…
”
(own emphasis)
[36]
It was argued that the plaintiff’s failure to properly plead
the agreement as discussed under the first ground
of complaint, and
the conditions as discussed under the second ground of complaint,
together with the content of annexure “SSE1”,
causes the
particulars of claim not only to be vague and embarrassing, but not
to disclose a cause of action.
[37]
Again no relevant argument was directed in rebuttal.
[38]
This ground of complaint is upheld as the acceptance of the
conditions, which conditions are not specifically pleaded
is
similarly not pleaded with any accuracy in order to enable the
defendant to plead thereto.
The
fourth ground of complaint
[39]
The defendant contends that the plaintiff in paragraph 3 on page 2 of
annexure “SSE2” to the particulars
of claim, refers to a
“
Loan agreement between the borrower …. signed by the
borrower on 7 February 2020
”. Said annexure “SSE2”
is a letter addressed to the defendant from the plaintiff’s
attorneys of record,
which is incorporated into the particulars of
claim under paragraph 10, to be a letter of demand.
[40]
The complaint relates thereto that the particulars of claim does not
disclose whether this loan is the same agreement
that forms the
subject matter of the third ground of complaint. If it is not, and so
the argument goes, the exact same issues raised
in the third ground
of complaint apply in respect of this loan agreement signed on 7
February 2020. As in the previous instance,
no specific argument was
addressed in this regard on behalf of the plaintiff.
[41]
Consequentially its unavoidable that this causes the particulars of
claim to be vague so as to cause embarrassment. This
ground of
complaint is upheld.
Fifth
ground of complaint
[42]
It is complained that in paragraph 5.2 of the particulars of claim
the plaintiff refers to a contract being an appointment
of the
plaintiff in the position of a main contractor in the relevant
project. Again the plaintiff failed to plead a contract in
compliance
with Rule 18(6).
[43]
Paragraph 5.2 is a sub-paragraph of the cause of action as pleaded
under paragraph 5, and states that:-
“
The defendant
started to implement the agreement with the appointment of the
plaintiff as the main contractor in the a Funds Project
for the
establishment of 53 hectares of sugar cane and defendant invited
tenders for the supply and installation of pivotal irrigation
for
this project
.”
[44]
From the pleading before court it is unclear if this agreement
referred to is the agreement ostensibly pleaded under
paragraph 5, or
whether this constitutes a secondary agreement, alternatively whether
the plaintiff was so appointed in terms of
a different contract.
[45]
The ground of complaint is upheld.
Sixth
ground of complaint
[46]
Under the sixth ground of complaint the defendant contends that in
paragraph 6.2 of the particulars of claim, reference
is made of a
cession, but no proper cession has been pleaded by the plaintiff, nor
is a copy thereof annexed to the particulars
of claim.
[47]
Paragraph 6.2 reads as follows:-
“
A first cession
was required to have been lodged with the mill against the
plaintiff’s sugar cane proceeds;..”
[48]
From the totality of paragraph 6 it is unclear whether this condition
of cession was adhered to. For as far as the plaintiff,
through the
pleading set out in paragraph 6.2, merely sought to set out that this
cession was to be a condition, compliance therewith
ought to have
been pleaded in specific terms.
[49]
The manner of pleading causes the particulars of claim to be vague
and embarrassing, and the complaint ought to be upheld.
Seventh
ground of complaint
[50]
The defendant contends that in paragraph 8 of the particulars of
claim the plaintiff pleads that the defendant repudiated
the
agreement, but fails to plead the applicable terms of the agreement,
how and when, and represented by whom, the defendant committed
this
repudiation, any terms of the alleged agreement that deal with the
breach and repudiation and compliance therewith by the
plaintiff –
this resulting therein that the plaintiff’s particulars of
claim is vague and embarrassing, does not contain
the averments which
are necessary to sustain a cause of action, and is devoid of
compliance with the rules of court.
[51]
In the present matter it appears that the plaintiff does not rely on
the repudiation for the purposes of cancellation.
As such, it is not
required to allege and prove the repudiation of a fundamental term of
the agreement, the election by the plaintiff
to terminate and
communication of the election.
[52]
The plaintiff does not expressly deal with its election in this
respect. At first glance we would have expected said
rejection to be
addressed in what the plaintiff terms “demand for specific
performance” as per annexure “SSE2”.
However, at
close scrutiny of said annexure, it appears that the content of
‘SSE2” does not align with such a demand.
That being so
the plaintiff did not plead a cancellation based on repudiation.
[53]
This ground of complaint cannot be sustained.
Eight
ground of complaint
[54]
It is alleged that the plaintiff pleads in paragraph 9 of the
particulars of claim that as a result of the repudiation,
it was
prevented from meeting the term of the agreement mentioned in
paragraph 6.3. On this basis it was argued that the plaintiff
failed
to plead facts supporting the contention that performance was
impossible, and importantly when and how it attempted to comply
with
the alleged obligation to perform.
[55]
A party relying on impossibility to perform ought to plead such
reliance specifically. This ground of complaint is upheld.
Ninth
ground of complaint
[56]
The last ground of complaint is directed at paragraph 2 of the
annexure “SSE2” to the particulars of claim,
wherein it
refers to “Management agreement between TSGO Farming Services
Proprietary Limited and Sifiso Sekuya Embili 2020”.
[57]
It was argued that hereby the plaintiff pleads a contract, but does
not comply with Rule 18(6).
[58]
I cannot agree with the contentions on behalf of the defendant, as
annexure “SSE2” is a letter from the plaintiff’s
attorneys of record to the defendant, wherein it was stated that from
the following documents in place, it appears that the defendant
continued with the project and once the tender adjudication in
September 2020 was challenged, the letter at 6 followed. Then
reference
is made to the management agreement as held by the
defendant.
[59]
In my view this was nothing but a reference to a document, and not
specifically incorporated into the pleading. This
annexure was
attached to the particulars of claim for the purpose of supporting
paragraph 10, wherein the plaintiff seeks to prove
that it demanded
specific performance from the defendant.
[60]
Consequentially this ground is unsustainable.
EFFECT
OF EXCEPTION BEING UPHELD
[61]
What remains to be considered is what the effect of the exception
would be if upheld. It is usually ordered that upon
an exception
being upheld, the particulars of claim are set aside and the
plaintiff is afforded an opportunity to amend its particulars
of
claim, but this is not an absolute rule. There are instances,
although rare, where a departure from this normal order would
be
permissible.
[62]
In this respect the defendant placed reliance on the matter of
Rowe
v Rowe
[1997] ZASCA 54
;
1997 (4) SA 160
(A) at 167, wherein the court did not as
an actual fact make a finding in this respect, save for stating that
when a departure
from the standard order is permissible, one would
expect the reasons therefore to be explained by the court.
[63]
The defendant argued that this matter is a case where indeed there is
no conceivable amendment to the particulars of
claim that could cause
it to contain a valid cause of action. In support of the aforesaid it
was argued that the only conceivable
basis for the claim would be if
the agreements referred to by the plaintiff were in fact concluded,
and also, if the conditions
to which the agreements were subjected
had been fulfilled.
[64]
Again there were attempts this time by both the parties to move me to
have regard to the content of the replies dealt
with above. There is
no basis for these replies to have been filed as such there are
irrelevant and ought not to be considered.
[65]
What can be considered is the various proposed amendments and the
objections thereto. From these documents it is clear
that the
plaintiff does not correct or “fix” its cause of action
but replaces same first with the reliance on a tacit
oppose to a
written agreement and later by alleging written agreement but in
annexing a copy of same relies on a unsigned agreement.
The latter
expressly setting out in paragraph 13 that said agreement only
becomes binding “
once signed by both parties
”.
[66]
The purpose of granting leave to amend is not to allow a party to
change its cause of action but to amend the existing
cause of action,
if any, so as to no longer be vague and embarrassing or to comply
with Rule 18(6). Where there is no cause of
action an amendment
should only be allowed where it is clear that a substitution or
alternative cause of action can be made out.
Unfortunately that is
not the case in this matter. From that before court it cannot be held
that granting the leave to amend will
result in a valid cause of
action.
CONDONATION
[67]
The plaintiff applied for condonation for its failure to comply with
the court’s order, to file its heads of argument
by a certain
date.
[68]
In said application it is sought that the defendant pays the cost of
the application for condonation. Only after the
defendant caused an
answering affidavit to be served and filed did the plaintiff in
reaction to the answering affidavit indicate
that it will no longer
pray for cost in the condonation application.
[69]
It appears however that the plaintiff did, notwithstanding the
aforesaid, not specifically tender the cost associated
by the
condonation application.
[70]
In my view the issue of the belated filing of the heads of argument
has been overtaken by events such as the filing of
the heads or
argument. Notwithstanding it being so that only the court can condone
the failure to comply with a court order ordering
the filing of the
heads of argument, there appears to be no prejudice to the defendant
if such condonation is granted.
[71]
That being said, the defendant was entitled to oppose the condonation
application on the grounds that it did more particularly
as the
plaintiff sought costs against it. Consequentially, I am prepared to
grant the condonation in respect of the heads of argument,
with the
plaintiff being ordered to pay the cost associated therewith.
COSTS
[72]
In respect of the cost of the exception, there is no reason why the
general principles that the cost should follow the
event, should not
apply.
ORDER
[73]
Consequentially, the following order is made:-
1. The plaintiff is
granted condonation for the late filing of its heads of argument.
2. The defendant’s
exception is upheld.
3. The plaintiff’s
particulars of claim attached to the summons dated 22 December 2020
is struck out and the action
is dismissed.
4. The plaintiff is
ordered to pay the cost.
5. The plaintiff is
ordered to pay the cost of the condonation application.
GREYLING-COETZER
AJ
DATE
OF HEARING: 26 October 2021
DATE
OF JUDGMENT: 26 January 2022
FOR
THE EXCIPIENT: Advocate Bensch
Instructed
by Du Toit Smuts Attorneys
E-mail:
acilliers@dtsa.co.za
Ref: SA
Cilliers/mvw/A1/21
FOR
THE PLAINTIFF: Advocate Boshoff
Instructed
by Tollig Attorneys
E-mail:
marthinus@tolligattorneys.co.za
Ref:
M Boshoff/SSE1
[1]
Jowell
v Bramwell-Jones and Others
1998
(1) SA 836
(W) at 898
[2]
The
Trustees, Bus Industry Restructuring Fund v Break Through
Investments CC and Others
2008 (1) SA 67 (SCA)
[3]
Burger
v Rand Water Board and Another
2007 (1) SA 30
(SCA) at 32D
[4]
Johnston
v Leal
1980 (3) SA 927
(A) at 937H and
Michael
v Caroline’s Frozen Yogurt Parlour (Pty) Ltd
1999 (1) SA 624
(W) at 632C
[5]
1922
AD 16
at 23
[6]
Tuckers
Land and Development Corporation (Pty) Ltd v Loots
1981 (4) SA 260
(T) at 263
[7]
First
National Bank of Southern Africa Ltd v Perry N.O. and Others
2001 (3) SA 960
(SCA) at 972I and
General
Commercial and Industrial Finance Corporation Ltd v Pretoria
Portland Cement Co Ltd
1944 AD 444
at 453
[8]
Trope
v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269I
[9]
Lockhat
v Minister of Interior
1960 (3) SA 765
(D) at 777D;
Nasionale
Aartappelkoöperasie Bpk v PriceWaterhouseCoopers
2001
(2) SA 790
(T) at 797J–798A
[10]
Lockhat
supra at 777E
[11]
ABSA
Bank Ltd v Boksburg Transitional Local Council
1997 (2) SA 415
(W) at 422A
[12]
1980
(4) SA 525
(Z) at 526D-E
[13]
2001
(3) SA 986 (SCA)
[14]
See
also
Koth
Property Consultants CC v Lepelle-Nkumpi Local Municipality Ltd
2006 (2) SA 25
(T) para [9] at 28, 29;
FNB
of SA Ltd v Perry NO
2001 (3) SA 960
(SCA) para [6] at 965;
Klokow
v Sullivan
2006 (1) SA 259
(SCA) para [15] at 265
[15]
1914
AD 152
at 156. See also
Minister
of Safety and Security v Hamilton
2001 (3) SA 50
(SCA) at 52G – H
[16]
Burger
v Rand Water Board and Another
(supra)
and the cases under footnote 4
[17]
Johnson
v Leal
(supra)
[18]
Amlers’
Precedent and Pleading, Lexis Nexis, Eight Edition, 2015, p114-115