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[2022] ZANCHC 2
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Top Security Systems (Pty) Ltd v Samy's Wholesalers CC (236/2013) [2022] ZANCHC 2 (21 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
236/2013
Heard:
18/10/2021
Delivered:
21/01/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
TOP
SECURITY SYTEMS (PTY) LTD
Appellant
and
SAMY’S
WHOLESALERS CC t/a SAMY’S WHOLESALERS
Respondent
Coram:
Williams AJP et Mamosebo J et Nxumalo J
JUDGMENT:
FULL COURT APPEAL
Mamosebo
J
[1]
This appeal, with leave of the Supreme Court of Appeal (SCA), stems
from an action
for damages for breach of contract for security and
armed response services against Top Security Systems (Pty) Ltd (TSS),
the defendant,
now the appellant, by Samy’s Wholesalers CC t/a
Samy’s Wholesalers, the plaintiff, now the respondent. The
issues of
quantum and liability were separated in terms of Rule 33(4)
of the Uniform Rules of Court.
[2]
On 02 August 2019 O’Brien AJ found TSS liable to Samy’s
Wholesalers for
the proven damages as a result of the burglary at
Samy’s Wholesaler’s premises on 13 November 2011 in
consequence of
the breach of the agreement entered into between the
parties on 21 June 2004. TSS, a private security company, concluded
an agreement
with Samy’s Wholesalers to provide a 24-hour armed
response and alarm monitoring service. The existence of the agreement
is common cause.
[3]
The issue for determination before the trial court which still
remains the issue in
this Court, is whether there were reasonable,
appropriate and adequate steps taken to investigate whether or not
the burglary was
in progress at Samy’s Wholesalers. In short
whether TSS is liable for breach of contract or not.
Factual
background
[4]
Mr Poobalan “Tom” Pillay is a member of Samy’s
Wholesalers, a Cash
and Carry supermarket or trade merchant, which
sells groceries, confectionaries, snacks, airtime and cigarettes,
amongst others.
The store is open to the public from Mondays to
Fridays 08:00 to 17:00 allowing staff to cash up until 18:00. On
Saturdays the
store opens from 08:00 to 13:00 with the staff cashing
up until 14:30. The store does not operate at all on Sundays.
[5]
Samy’s Wholesalers is situated at 78 Phakamile Mabija Street,
Kimberley. In
an effort to beef up its security it erected a 1.9
meter high palisade fence which
served
as its boundary. Two gates for access to the premises, one on the
south and the other on the west, are provided. The installed
alarm
system comprising a 160 panel zone was monitored from the TSS control
room. The alarm system was fitted with sensors, activation
devices
and beams which would be activated once there was movement in and
around the store. The beams were placed in the front
areas
of the store and the warehouse whereas inside the building
sensors were fitted in the offices, canteen, strategic room and the
cash
office. There was also a device manipulated to the safe in the
safe room. In the event of an activation the control room would be
alerted that the safe has been tampered with.
[6]
Should any sensor or beam be triggered the alarm would be activated
and the siren
would go off alerting the control room. The control
room would, in turn, telephonically contact the keyholders to obtain
instructions
whether to respond or not. If the instruction is to
respond, the control room would then dispatch a warden to investigate
the cause
and furnish feedback. Mr Pillay and his sons, Nivendran
Pillay and Dhesigan Pillay, are keyholders to the store. TSS was at
liberty
to contact either one of the three keyholders.
[7]
It is the responsibility of a keyholder to open and lock up the
store. When the main
door gets opened an SMS signal is given to the
keyholder. When the door is closed at the end of the business day,
and not at the
exact time, TSS would make contact with the keyholder
confirming whether they are still on site. None of the keyholders
received
notification prior to or on the day of the incident that the
alarm system was malfunctioning. There was regular testing, including
on 12 November 2011 at 19:20:42 when same was conducted to confirm
that the system was in working order.
[8]
On
Sunday
, 13 November 2011, it is common cause,
a burglary took place at Samy’s Wholesalers. It is also
common cause that the alarm was triggered on four different occasions
which caused the control room to telephonically contact a keyholder
on the supplied
telephone number.
According to the Client History Report furnished by TSS the first
alarm was triggered through the front door beam
at 11:25:25 and at
11:25:48, still showing the front door beam. The entry states that it
was escalated by burglary signal. The
control room dispatched Mr
Andre Fourie at 11:27:00 to respond and investigate the cause for the
triggered alarm. Mr Tom Pillay
was contacted at 11:27:28 on his
cellphone which went straight to voicemail. At 11:29:39 the control
room phoned the landline of
Mr Tom Pillay. His wife requested the
warden to check and report back. A TSS response vehicle arrived at
Samy’s Wholesalers
at 11:31:28. At 11:35:54 it is recorded that
the control room acknowledged subsequent signals. At 11:38:42 Mr
Andre Fourie checked
and relayed a message to the control room that
“All Is In Order” (AIO). At 11:41:19 Mr Tom Pillay was
contacted and
informed that all was in order.
[9]
The alarm was again triggered at 13:29:46 at the strategic store and
recorded at 13:29:59
as
escalated by burglary signal
. At
13:30:32 it is recorded that subsequent signals were acknowledged.
Warden Aaron Leburu was dispatched by the control room at
13:31:02.
Mr Tom Pillay was contacted on his cellphone at 13:31:57. He gave an
instruction for the warden to attend to Samy’s
Warehouse and
check the front and back as well. The response vehicle arrived at
13:32:00. It is recorded that Mr Hendrick Hapane
assisted Leburu at
13:34:36. By 13:34:19 they reported to the control room that they
have checked the front and the back and by
13:37:23 logged that the
alarm was checked and all was in order.
[10]
At 16:28:36 the alarm was triggered yet again at the strategic store.
At 16:28:55 it is recorded
as escalated by burglary signal. The
control room recorded that at 16:30:05 the wardens were busy with
other calls and Mr Tom Pillay
was telephonically contacted on his
cellphone. His response was that the warden can check on his own.
Warden Hendrick Hapane was
dispatched at 17:01:08 and arrived at
17:05:11. At 17:08:11 he informed the control room that all was in
order. At 16:28:55 the
alarm was activated again at the strategic
store and it is recorded as a burglary and again at 17:44:14 inside
Nivendran’s
office. It was escalated by a burglary signal.
Leburu was dispatched again at 17:46:14. The control room contacted
Mr Tom Pillay
on his cellphone. His instruction once again was that
the warden must check on his own. At 17:56:43 the control room was
notified
that all is in order the warden has checked all around.
[11]
The activation continued inside Nivendran’s office at 17:44:27.
In all these instances
the control room could see through its
monitoring of the system which zones inside the store were affected
because they are recorded
on the Client History Report furnished to
Mr Pillay by TSS. The alarm panel, located in Nivendran’s
office, was removed and
destroyed as depicted in photos 22 and 23.
The last alarm activation was at 17:44:34.
[12]
The following morning, Monday 14 November 2011, when Mr Pillay
arrived at the business in the
company of Mr Michael Miller to unlock
the doors for staff to gain entry, they noticed that the infra-red
light was off; even before
they used their remote control to
deactivate the alarm. It was discovered, upon entry, that there had
been a burglary. This is
also admitted by TSS. The South African
Police Service (SAPS) members were summoned to the scene. The
forensic division conducted
a forensic investigation. The following
goods were stolen or missing: airtime vouchers, cigarettes and an
undisclosed amount of
cash. Statements were obtained from the staff
members as part of the criminal investigation. Upon inspection of the
building and
the premises it was discovered that access for the
burglary was gained through two holes, one hole estimated to be 3½m
on
the neighbour’s side of the building. The hole is depicted
on the left side at photo 3 of Volume 4. Then the second hole is
depicted on the right side when viewed at photo 4 of Volume 4. There
was also a palisade that was missing on the neighbour’s
side
that also assisted the suspects to gain entry.
[13]
On the analysis of Mr Tom Pillay’s evidence the following is
extrapolated. Throughout his
testimony he maintained that prior to
the day of the incident, when there were alarm activations he or the
other keyholders were
called out to the store for a site inspection.
They were never specifically called out to give the warden access to
the business
premises and the building. He testified that had they
been called out earlier they would have attended to the site.
[14]
According to Mr Pillay TSS had issued an awareness report dated 22
November 2011, under the signature
of Mr Phillip Hindley, the owner
and/or director of TSS. The first and the fourth unnumbered
paragraphs thereof in relevant part
are of significance. They read:
“
[1]
There has been an alarming number of burglaries over the last three
months targeting businesses. The burglars
are entering the premises
from the roof and targeting the alarm panel first by cutting the
cable and/or destroying the panel before
continuing to rob the
premises. They lift up the sheet metal on the roof, climbing into the
roof void and closing the sheet metal
behind them. (even on double
storey buildings!!!)
[4]
Please help TSS look after your property by arranging for a keyholder
to open up the premises
in the event of an alarm activation (Burglary
signal). The keyholder can open the premises and allow the Armed
Reaction unit to
enter the premises to do a thorough search while the
keyholder can remain in his/her car outside the premises. In the
event of
multiple zones being triggered over a short time period
(this is indicative of a positive alarm) we will request the South
African
Police Service to respond as well, but they will only come
out if a keyholder comes out to open up the premises as is the
standard
in many overseas countries.”
[15]
Mr Van Niekerk SC, for TSS, objected to the trial Court having
accepted the evidence of the witness
on this
aspect of the report.
He
contended that it was not part of their
case.
This piece of information, which was within the knowledge of TSS and
not of Samy’s Wholesalers, made it even more crucial
for TSS to
have responded with vigilance and should have demanded that a
keyholder came out to the site to give them access. What
is more
mind-boggling is the fact that there were multiple zones that were
triggered. This information was evidently never relayed
to any of the
keyholders with a demand for them to come out because there was a
possible burglary in progress.
[16]
It is inexplicable how an inspection which lasted only a few minutes
would yield reliable results.
It is noteworthy that the wardens paced
outside the premises and informed the control room that all was in
order. None of them
inspected the palisade perimeter
fencing. If they did they would have noted that there was a
gap in a portion of the palisade fence and, I should add, the
existence
of a hole in the wall of the warehouse which was indicative
of a burglary or housebreaking.
[17]
TSS called only one witness to testify on its behalf. Mr Mosimanegape
Hendrick Hapane was a warden
at TSS at the time of the incident but
is currently a security officer at SBV Services. The role and
intervention by Mr Fourie
and Mr Leburu, who attended the scene
twice, remains unexplained. Hapane’s evidence was to the
following effect: He was on
duty on 13 November 2011 equipped with a
9mm pistol, a bullet proof vest, a hand radio and a torch. He is a
Grade C security officer
and involved in armed reaction since 2009.
He is fairly experienced or competent because he explained that the
highest level is
A while the lowest is E.
[18]
Hapane’s
training was received in 2009 at
Zabalaza Training College in Germiston and included both theoretical
and practical sessions on
how to inspect premises thoroughly, looking
for signs of burglary, safe driving to get to the scene, use of
firearms, and armed
response.
[19]
He responded on 13 November 2011 after the alarm went off at
13:29:46. He went on site to assist
Leburu at 13:34. Leburu checked
at the back while he checked at the front of the warehouse. Reference
is made to Transvaal Road,
now known as Phakamile Mabija Road. They
only conducted a visual inspection because they had no access to the
premises. His inspection
started from the gate on the South side to
the front next to the billboard on the western side where there is an
alleyway alongside
the building. Viewing from the sidewalk in that
alleyway he noticed a generator in front of a small gate. The
alleyway has a roof
over it casting a shadow which rendered
visibility very poor.
[20]
In his response to the testimony by Mr Pillay to the effect that from
the pavement a person had
an
unimpeded
view into the alleyway, Mr Hapane stated:
“
it would be
impossible because of the generator, the shade of the corrugated
sheet iron, the small gate and the billboard thing
that is there in
front as well, and the palisade fence as well, Sir. And another
thing, and the angle of the whole things there
at the site.”
Despite
this response, he and Leburu relayed a message to the control room
that all was in order and the same message was furnished
to Mr
Pillay.
[21]
The following evidence-in-chief of Hapane by Adv Van Niekerk, for
TSS, is also relevant to show
that Hapane knew what was supposed to
happen under the circumstances sketched by him:
Mr Van Niekerk
:
If there is a call out now and in another minute’s time there
is another call out and in another
minute’s time there is
another call out, in which order do you attend to those callouts?
Mr Hapane
:
I think the second or the third time the alarm goes off the keyholder
must come out to the site to also inspect with the wardens.
”
In
cross-examination by Adv Nankan, for Samy’s Wholesalers, in
respect of what he was taught in instances where he could not
do a
proper visual inspection of premises Hapane said:
“
The keyholder
must be called so we can do a thorough inspection with the
keyholder.”
He
added that if the property is fitted with several sensors in
different rooms and the alarm is activated, the control room notifies
the warden of the specific room where the alarm was triggered. The
responsibility lies with the control room to notify the keyholder
of
the location or the zone from where the alarm was triggered.
Demonstrably, this was not done.
[22]
Hapane was also cross-examined on whether a warden could scale a wall
or fencing to access the
premises. In his initial response he was
adamant that he could not do so wearing a bulletproof vest and
carrying a firearm but
he later qualified his statement by stating
that it would depend on the height of the wall and it was
discretionary.
[23]
The following cross-examination highlights the level and nature of
the investigation carried
out when Hapane purportedly assisted
Leburu:
Mr Nankan
:
Mr Hapane, you told us just now that you were assisting Mr Leburu
with this call out?
Mr Hapane
:
That’s correct
Mr Nankan
:
You also told us as part of your training when an alarm is activated
obviously the zone that is activated you would be aware of
it, or
something to that effect, isn’t that correct?
Mr Hapane
:
That’s correct.
Mr Nankan
:
You went to the scene at 13:29. You were assisting Leburu with this
call out. Did you enquire which zone had gone off?
Mr Hapane
:
I answered no.
Mr Nankan
:
My question is then following from that, that’s not part of
your training. Your training according to you was that when
you go to
a scene you find out which zone is activated.
Mr Hapane:
As the statement is here I was assisting. It was not my callout.
Mr Nankan
:
So you didn’t ask which zone was activated.
Mr Hapane
:
It was not my call out Sir.
Mr Nankan
:
No, no, no Mr Hapane. You were going there to investigate if there is
a burglary in progress, isn’t that so?
Mr Hapane
:
That’s correct.
Mr Nankan
:
You are going there Sir, to investigate if people had gained forced
entry pursuant to your training to this premises, isn’t
that
so?
Mr Hapane
:
That’s correct.
Mr Nankan
:
Yet you go there to the scene. You don’t find out which zones
has been activated, full knowing that you need this information
as
part of your training Sir.
Mr Hapane
:
It was not my callout.
They will give the warden who
acknowledges the signal where the signal went off
.
Mr Nankan
:
So you didn’t think- let’s put it this way. It wasn’t
your job, it wasn’t your duty to find out, it was
Mr Leburu’s?
Mr Hapane
:
I was assisting Mr Leburu in inspecting the premises.”
(Own
emphasis)
[24]
Later on Adv Nankan followed up:
Mr Nankan
:
Just tell us again, you said Mr Leburu made those enquiries?
Mr Hapane
:
Mr Leburu was the one who acknowledged the alarm.
Mr Nankan
:
They told him the zone?
Mr Hapane
:
I believe that.
Mr Nankan
:
And did you ask Mr Leburu which zone is going off?
Mr Hapane
:
No Sir.
Mr Nankan
:
Why not? You are there to investigate a burglary. He knows which zone
is going off. To help in your investigations didn’t
you ask him
which zone?
Mr Hapane
:
No.
Mr Nankan
:
Why? How are you going to investigate a case if you didn’t know
where the alarm was going off?
Mr Hapane
:
Because he was already on site and
I assumed that he
checked all the zones as possible.”
Hapane
somewhat astoundingly not only exposes that he has not personally
sought information of the affected zones from Leburu but
has also
failed to verify for himself the precise detail of the affected zones
directly from the control room. Resorting to the
blame game does not
advance TSS’s case because Leburu was not called to testify.
Instead, Hapane’s inaction reflects
a person who has failed to
comply with his basic duties, which, unfortunately, resulted in a
successful burglary.
[25]
The training skills and background of three of the four wardens who
attended the site inspection
at Samy’s Wholesalers is unknown.
However, Hapane is a trained security officer who had the required
knowledge and skill
of monitoring and providing armed response
following an activated alarm. He testified to the measures that would
have to be taken
should an activation trigger multiple zones. This
information is also recorded in the awareness report alluded to that
with multiple
zone activation a red flag is raised that a possible
burglary is taking place. In that event a keyholder must come on site
to give
access to the warden while TSS alerts and calls the SAPS that
a probable serious offence is in progress.
[26]
There is no evidence that any of the wardens deemed it necessary to
advise the control room that
they only managed to conduct visual
inspections outside the perimeter fencing only because they were
deprived access to the premises
and the building which they were
required to do. Hapane also failed to inform the control room after
his purported visual inspection
that he could not ‘thoroughly’
investigate or inspect the alleyway because his vision was obstructed
by the stated
objects. It cannot be gainsaid that the fact that
Hapane was unable to properly investigate the alleyway constituted
inadequate
inspection. On all four occasions the report relayed to
the control room and to Mr Pillay was that all was in order, which
gave
a misleading picture and false sense of assurance to all
reported to.
[27]
The trial court conducted an inspection
in loco
and arrived at
a finding that had Leburu and Hapane done a proper investigation they
would have noticed a hole in the perimeter
fence on the northern side
of Samy’s Wholesalers through which access was gained. The SAPS
would then have been called to
investigate the burglary. This aspect
was not contested by TSS. The trial court cannot be faulted for its
finding that Fourie,
Hapane and Leburu did not carry out a proper and
adequate investigation to detect the sources of the activations.
[28]
Mr Van Niekerk, for appellant TSS, contended that this Court should
apply the test for negligence
to determine whether the conduct of the
wardens was appropriate, reasonable or adequate. Such test should
explore what a reasonable
security officer, circumstanced as the
wardens were, would do under the prevailing situation. In counsel’s
cross-examination
of Mr Pillay he pointed out to Pillay that he knew
that by merely instructing the control room to send out a warden
without more,
all that the warden was supposed to do was to conduct a
visual inspection. This argument lacks merit. The control room was in
a
better position with the data at their disposal to know that since
multiple zones were triggered inside the building, it was crucial
and
incumbent upon a keyholder to be present to give access. This
notwithstanding, they failed to relay the requisite information
to Mr
Pillay or any of the other keyholders.
[29]
Van der Westhuizen J in
Loureiro
and Others v iMvula Quality Protection (Pty) Ltd
[1]
made the following remarks pertaining to reasonableness:
“
[65]
iMvula submitted that, in the absence of expert evidence on
security-industry standards, this Court could not determine
what a
reasonable security guard would have done. I disagree. While courts
sometimes do call on expert evidence for assistance
in determining an
industry-specific negligence standard, there is no absolute
requirement that they do so. Ultimately, the negligence
enquiry is
one that must be determined by the court in question itself. If a
court, on the facts, is able to determine what the
reasonableness
standard is it does not have to rely on expert evidence. Here, we are
able to do so.
Security guards are trained to provide
guarded protection and to detect nefarious ways in which opportunists
may try to penetrate
that protection. That is the core of their
mandate
. This can clearly be ascertained without recourse
to expert testimony.”
(Own emphasis)
[30]
Mr Van Niekerk gave the phrase “All In order” an
imprecise construction in his argument
by submitting that it means
‘as far as I can establish everything seems to be in order’.
I disagree. The phrase was
clear and unambiguous. Its plain meaning
is that everything was fine or there was no problem detected or to be
concerned about.
What was conveyed was misleading because: first,
there were multiple zones triggered; secondly, the control room
either failed
to furnish the information of the zones or the wardens
failed to demand to know the affected zones for an appropriate
response.
They practically visited Samy’s Wholesalers the
entire day on those four occasions, whereas, had they acted
reasonably, they
would have been eager on the second activation to
eliminate the possibility of animals triggering the alarm or thinking
the system malfunctioned. This they could only do by gaining
access to the premises and the building. What would otherwise have
been the point of the repeated visual inspections outside the
premises when the problem was within the building?
[31]
I further
refer
to the remarks by Van der Westhuizen in
iMvula
[2]
which
is apposite:
“
[4]
...Indeed, security officers employed in the private industry greatly
outnumber the members of the South African
Police Service. Many of
those with the resources to do so turn to the private security
industry for the protection of their rights.
The Loureiro family, the
applicants, did just that.”
Undoubtedly,
Samy’s Wholesalers resorted to TSS for the protection of its
rights. When individuals or companies conclude agreements
with
private companies to render monitoring and armed response services,
what they are seeking in effect is protection from criminals.
The
monitoring and response provided by TSS through the control room and
the wardens failed to meet the standard of a reasonable
security
company and its officers.
[32]
Van der Westhuizen J in the iMvula judgment
[3]
further said:
“
[37]
…Legal certainty on the correct approach to security
companies’ liability will benefit the public. This
is
particularly critical given the public role that security companies
play in giving effect to fundamental rights.”
He
went on at para 42:
“
[42] …the
law of contract does not require fault (even in the form of
negligence) for breach.” In Thoroughbred
Breeders’
Association v Price Waterhouse
[4]
Nienaber JA expressly pronounced on this aspect as follows:
‘
[66]
The defence of a preponderance of fault on the part of the plaintiff,
on which the Court a quo appears to rely,
is incongruent within the
field of contract. Where a plaintiff can prove that the breach of the
defendant was a cause of the loss
(as opposed to the cause thereof)
he should succeed even if there was another contributing cause for
the loss, be it an innocent
one, the actions of a third party
(compare Nedcor Bank E Ltd t/a Nedbank v Lloyd-Gray Lithographers
(Pty) Ltd
2000 (4) SA 915
(SCA) at paras [10] - [12]), or, logically,
the carelessness of the plaintiff himself in failing to take
reasonable precautions
to avoid it. A defendant who commits a breach
of contract does so independently of any of the extraneous factors
mentioned above.
All the requirements for his liability will have
been fulfilled. In the absence of a contrary term in the agreement
itself or of
legislative intervention excluding or reducing his
claim, he should therefore be held fully liable, regardless of
whether the plaintiff's
culpa was the dominant or pre-eminent cause
of the loss.’”
[33]
In summary: This brings us back to the question whether the conduct
of the TSS and its members
was reasonable, appropriate and adequate?
I do not think so. In the one instance, it took armed response more
than thirty minutes
to reach the site. This is clearly unreasonable
and unacceptable. In all four instances the purported visual
inspections were hurried,
peripheral and perfunctory. I may add that
they merely went through the motions. The intruders were obviously
already inside the
building hence the multiple zone activations.
Significant to note further is that while the control room was at all
times aware
of the specific zones from which movement emanated which
triggered the alarms, it is unknown whether they communicated the
specific
zones to the wardens or not, the reason being that the
wardens who could furnish first-hand evidence were not called to
testify
by TSS. It is safe to infer that the wardens would not have
conducted visual inspections outside the premises when they were made
aware that the triggered zones were within the building. What
exacerbates the situation is the failure by TSS’s control room
to call out a keyholder to the site after the alarm was triggered in
more than one zone. These cumulative shortcomings point inexorably
towards a breach of the contract by both the control room and the
wardens which conduct
attracts
liability.
[34]
In as far as costs are concerned, the general principle is trite,
that costs will ordinarily
follow the result. There is no reason to
deviate therefrom.
[35]
Resultantly, and for the aforegoing reasons, I make the following
order:
The
appeal is dismissed with costs, which shall include the costs of the
application for leave to appeal in the Supreme Court of
Appeal and
the court
a quo.
________________
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
agree
___________________
CC
WILLIAMS
ACTING
JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
I
agree
__________________
APS
NXUMALO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Appellant:
Adv. JG Van Niekerk SC
Instructed
by:
Haarhoffs Inc
For
the Respondent:
Adv. S Nankan
Instructed
by:
c/o Justin Pillay & Associates
[1]
CCT
40/13
[2014] ZACC 4
;
2014 (5) BCLR 511
(CC);
2014 (3) SA 394
(CC)
para
65
[2]
At
para 4
[3]
CCT
40/13
[2014] ZACC 4
;
2014 (5) BCLR 511
(CC);
2014 (3) SA 394
(CC) at
para 37
[4]
2001
(4) SA 551
(SCA) at 588 para 66