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[2022] ZAECMKHC 25
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Eastern Cape Transport Tertiary Co-Operative and Others v The National Director of Public Prosecutions and Others (2284/2021) [2022] ZAECMKHC 25 (31 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO:2284/2021
In
the matter between
EASTERN
CAPE TRANSPORT TERTIARY CO-OPERATIVE
First Applicant
QUSTA
SECONDARY CO-OPERATIVE LIMITED
Second Applicant
UNCEDO
SERVICE TAXI ASSOCIATION MTHATHA PRIMARY
TAXI
CO-OPERATIVE LIMITED
Third Applicant
MELTA
TRANSPORT PRIMARY CO-OPERATIVE LIMITED
Fourth Applicant
IDUTYWA
MULTI-PURPOSE PRIMARY CO-OPERATIVE LTD
Fifth Applicant
DUTYWA
TRANSPORT SERVICES CO-OPERATIVE LTD
Sixth Applicant
DUTYWA
DEVELOPMENT LIMITED
Seventh Applicant
BHISHO
KING TAXI ASSOCIATION PRIMARY CO-OPERATIVE
LTD
Eight Applicant
NTLANZA
TRANSPORT SERVICES AND MULTI-PURPOSE
CO-OPERATIVE
LIMITED
Ninth Applicant
FABBS
TRANSPORT PRIMARY CO-OPERATIVE
Tenth Applicant
HUTA
TRANSPORT SERVICES
Eleventh Applicant
PORT
ELIZABETH AND DISTRICT TAXI ASSOCIATION
Twelfth Applicant
TSOMO
TAXI ASSOCIATION PRIMARY CO-OPERATIVE
Thirteenth
Applicant
INGQIQO YETHU
TRANSPORT PRIMARY CO-OPERATIVE
Fourteenth Applicant
UBUNYE
NGANDANDLA TRANSPORT SERVICES
Fifteenth Applicant
ECTTC
CO-OP FINANCIAL SERVICES (PTY) LTD
Sixteenth Applicant
SOMILA
CONSULTING AGENCY (PTY) LTD
Seventeenth Applicant
BCM
FET COLLEGE (PTY) LTD
Eighteenth Applicant
BLUE
GROUP SERVICES (PTY) LTD
Nineteenth Applicant
KOUGAKAMMA
CO-OPERATIVE LIMITED
Twentieth Applicant
MATATLELE
MALUTI BUS PRIMARY CO-OPERATIVE
LIMITED
Twenty-first Applicant
BUTTERWORTH
MULTI-PURPOSE CO-OPERATIVE
Twenty-second Applicant
MQANDULI
TRANPORT SERVICES AND MULITI-PURPOSE
PRIMARY
CO-OPERATIVE
Twenty-third Applicant
MQANDULI TRANSPORT
SECONDARY CO-OPERATIVE Twenty-fourth
Applicant
LELILLITHA TRANSPORT
PRIMARY CO-OPERATIVE LTD
Twenty-fifth Applicant
UNCEDO
TRANSPORT AND BUSINESS PRIMARY
CO-OPERATIVE
Twenty-sixth Applicant
MOUNT
FLETHCER – MACLEAR BUS AND TAXI
CO-OPERATIVE
LIMITED
Twenty-seventh Applicant
WILLOWVALE
TRANSPORT AND MULTI-PURPOSE
PRIMARY
CO-OPERATIVE LIMITED
Twenty-eight Applicant
META
YELANGA TRANSPORT SERVICES
Twenty-ninth Applicant
MINILUX
TRANSPORT SERVICE AND MULTI-PURPOSE
PRIMARY
CO-OPERATIVE
Thirtieth Applicant
PORT
ST. JOHNS TAXI OWNERS ASSOCIATION
PRIMARY
CO-OPERATIVE LIMITED
Thirty-first Applicant
KUYASA
PROGRESSIVE PRIMARY CO-OPERATIVE
LIMITED
Thirty-second Applicant
XESI
DEBE TRANSPORT SERVICES PRIMARY
CO-OPERATIVE
Thirty-third Applicant
KULASANDE
EDIMBAZA LOGISTIC CO-OPERATIVE
Thirty-fourth
Applicant
MACLEAR
TAXI ASSOCIATION PRIMARY CO-OPERATIVE Thirty-fifth Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTION
First Respondent
ACTING
COMMISSIONER: UNEMPLOYMENT INSURANCE
FUND
Second Respondent
DIRECTOR-GENERAL
EMPLOYMENT AND LABOUR
Third Respondent
MINISTER
OF EMPLOYMENT AND LABOUR
Fourth Respondent
FIRST
NATIONAL BANK
Fifth Respondent
NEDBANK
LIMITED
Sixth Respondent
ABSA
BANK LIMITED
Seventh Respondent
STANDARD
BANK LIMITED
Eight Respondent
FINANCIAL
INTELLIGENCE CENTRE
Ninth Respondent
In
Re:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTION
Applicant
JUDGMENT
(reconsideration
of preservation orders)
BLOEM
J
:
1.
The
National Director of Public Prosecutions (the NDPP) sought and was
granted an
ex
parte
order
on 30 July 2021 (the first preservation order) in terms whereof the
credit balance, including interest (the credit balance),
in nineteen
bank accounts at First National Bank, two at Nedbank and four at Absa
were preserved. Another
ex
parte
order
was granted in favour of the NDPP on 16 August 2021 (the second
preservation order) in terms whereof the credit balance
in another
banking account at Nedbank and five at Standard Bank were preserved.
On 27 August 2021 the Acting Unemployment
Insurance
Commissioner, the Director-General and the Minister of Employment and
Labour (the Commissioner, DG and Minister) delivered
a notice wherein
they indicated their intention to apply, in terms of section
48(4)(b)(i) of the Prevention of Organised Crime
Act
[1]
(POCA),
for an order excluding from any impending forfeiture order, the
credit balances in the above banking accounts. That
notice was
accompanied by an affidavit contemplated in section 39(5) of POCA
wherein the nature and extent of the interest of the
Unemployment
Insurance Fund in the preserved property were set out.
2.
The NDPP obtained another
ex
parte
order on 15 September 2021 (the
third preservation order) in terms whereof the credit balance in one
bank account at First National
Bank, one at Absa and four at Standard
Bank were preserved.
3.
On 30 September 2021 twenty-eight applicants
launched an application for an order that the first preservation
order be reconsidered.
The applicants were co-operatives and
companies whose credit balances are preserved pursuant to the first
preservation order.
The NDPP delivered an answering affidavit
on 24 November 2021 and heads of argument on 30 November 2021.
4.
On 3 December 2021 Beneke AJ dismissed the
application for the reconsideration of the first preservation order
on the basis that
“
the UIF very
clearly has an interest in the funds attached
”
and
that the failure to join it was fatal. The application for
reconsideration was accordingly dismissed with costs.
5.
On 13 December 2021 the applicants launched
another application for an order that the first, second and third
preservation orders
be reconsidered. That application was
essentially the same as the one that was dismissed by Beneke AJ, save
that more applicants,
the Commissioner, DG and Minister as well as
the banks holding the credit balances and the Financial Intelligence
Centre were added
in the heading of the application, not the
affidavits in support of that application.
6.
The NDPP did not deliver a new answering affidavit
or heads of argument. At the hearing Mr. Wolmarans, attorney
for the NDPP,
made submissions based on the answering affidavit and
heads of argument which were delivered during November 2021, as
the
facts upon which the applicants relied for the relief sought in
the application that was dismissed are the same in the present
application.
7.
The applicants rely on two grounds for the
reconsideration of the preservation orders. The first is that
the deponent of the
founding affidavit which culminated in the first
preservation order failed to show good faith when he placed incorrect
facts before
the court. The second ground was the applicants’
reliance on the audit report which was attached to the founding
affidavit
in the present application. According to Mr.
Mashavha, counsel for the applicants, the applicants’ defence
was set
out in chapter and verse in that report, which defence, it
was submitted, shows that the applicants did not commit theft, fraud
or any unlawful activities. To deal with those grounds, one has
to have regard to the grounds upon which the NDPP relied
to obtain
the preservation orders.
8.
On 25
March 2020 the Minister issued a directive which provides for a
Covid-19 Temporary Employees/Employer Relief Scheme (TERS).
The
purpose of the directive was
inter
alia
to
make provision for the payment of a benefit to employers and
employees who make a contribution in terms of the Unemployment
Insurance Contributions Act
[2]
and who have lost income due to the Covid-19 pandemic (the pandemic);
minimize economic impact of loss of employment because of
the
pandemic; and to establish TERS to alleviate the economic impact of
the pandemic. The directive sets out the circumstances
under
which an employee shall qualify for a Covid-19 temporary relief
scheme benefits (the benefit or benefits). Such benefits
will
be paid to cover only the costs of salary for the employees during
the temporary closure of business operations. An
employee would
also qualify for illness benefits if he or she is in quarantine for
fourteen days due to the pandemic. Where
an employer submits an
application for the benefits under TERS, it is required to furnish
the Unemployment Insurance Fund with
a letter of authority from the
company and a signed memorandum of agreement (MOA) from the employer
or bargaining council with
the Unemployment Insurance Fund.
9.
The MOA was signed on 8 April 2020 for and on
behalf of the Unemployment Insurance Fund. The purpose of the
MOA is to give
effect to TERS in order to expedite the payment of
benefits to contributors who lost income due to the pandemic, to
alleviate the
economic impact of the loss of employment and closure
of businesses due to the pandemic and to allow for applications for
benefits
to be made.
10.
The NDPP’s case is that the benefits paid
out to the applicants are the proceeds of unlawful activities because
the applications
for payment and, after receipt of benefits by the
applicants, the payment to the employees of benefits received from
the Unemployment
Insurance Fund did not comply with the directive and
the MOA.
11.
One of the requirements in the directive is that
an employer, when applying for the benefits, must submit a letter of
authority
as well as a signed MOA with the Unemployment Insurance
Fund. The first applicant, after creating a profile, submitted
applications
for benefits on behalf of the other applicants, as
employers, and was paid in six instalments in one banking account in
the total
sum of R19 743 977.00. An interim audit was
conducted at the instance of the Unemployment Insurance Fund in
response
to allegations of large-scale looting of the benefits.
Irregularities which were uncovered included applications made on
behalf of persons employed by the South African Government and that
applications were made on behalf of deceased individuals.
It
was also alleged that an application was made on behalf of a
prisoner. The NDPP contended that those applications were
fraudulent because the intended recipients were not eligible for the
benefits, that they amounted to unlawful activities, as they
contravened the MOA which provides that an employer would only
qualify for the benefit if the temporary closure of its business
operations is a direct result of the pandemic; and they contravened
Item 7 of the MOA which provides that the employer undertakes
to use
the benefits exclusively and solely for the purpose of paying the
benefits to its employees.
12.
In this case the first applicant, being a
co-operative, submitted applications for benefits on behalf of
affiliate co-operatives.
A search revealed that sixty-six
entities submitted applications for benefits using the same contact
details and collectively received
R220 552 295.88. It
furthermore revealed how the applicants received very many millions
of rands as benefits. It was
against the above background that
the NDPP sought and obtained the preservation orders.
13.
Regarding the allegation that there was a lack of
uberrima fides
when
the first
ex parte
application was launched, the applicants pointed
out that the NDPP made Smith J, who granted the first
preservation order,
to believe that a claim was submitted on behalf
of an employee who had died and another who was in custody, the
contention being
that false claims had been submitted in respect of
those two employees.
14.
On 10 November 2021 the NDPP launched an
application for an order that the money preserved in terms of the
preservation orders be
forfeited to the state. In support of
that application, the NDPP relied on an affidavit by Sipho Melani who
is employed in
the fraud and anti-corruption section of the
Department of Employment and Labour. The purpose of that
affidavit was to correct
and clear up two errors. The first was
to acknowledge that the person who was alleged to have died was in
fact still alive;
and the second was that the person who was alleged
to have been in custody, was in fact never in custody. Mr.
Melani explained
that the mistake regarding the alleged deceased
person was made because his identity number was given to the
Unemployment Insurance
Fund by the first applicant. That
information was then passed on to the Auditor-General, who in turn
gave the information
to the Department of Employment and Labour.
Mr. Melani then used that incorrect information in his affidavit
which was used
in support of the application which culminated in the
first preservation order. Mr. Melani furthermore pointed out
that the
information regarding the incarceration of a person was also
obtained from the Auditor-General’s report, which turned out
to
be incorrect. Mr. Melani tendered his apology for the
wrong information in respect of those two persons.
15.
The main affidavit in support of all three
applications for the preservation orders was deposed to by Nkululeko
Ndzengu, an attorney
and a senior Deputy Director of Public
Prosecutions attached to the asset forfeiture unit. One of the
affidavits upon which
Dr. Ndzengu relied was Mr. Melani’s
affidavit. Because the above information in Mr. Melani’s
affidavit was incorrect,
it follows that Dr. Ndzengu’s
affidavit, insofar as it relied on Mr. Melani’s affidavit, was
also incorrect in that
regard. It was in that respect that Mr.
Mashavha criticised Dr. Ndzengu because, so he submitted, as an
attorney he should
have ensured that correct facts were placed before
the court. In my view the criticism of Dr. Ndzengu is
unwarranted.
Mr. Melani gave an explanation as to why incorrect
facts were placed before the court. There is no merit in the
contention
that Dr. Ndzengu displayed an absence of
uberrima
fides.
The fact that he placed
incorrect facts before the court does not mean that he intentionally
misled the court. There is also
no merit in the submission that
the preservation orders should be set aside because of the alleged
absence of good faith on the
part of Dr. Ndzengu.
16.
I now
deal with the applicants’ second ground upon which they relied
for the relief sought. The applicants’ reliance
on the
audit report is misplaced for two reasons. The first is that in
terms of clause 22 of the MOA, it is the Unemployment
Insurance Fund
which has the power to appoint, at its expense and sole discretion,
an auditor or a suitably qualified investigator
to audit or
investigate suspected breach of the MOA and corruption or fraud
related to the implementation of the MOA. Neither
the directive
nor the MOA gives an employer the power to appoint an auditor to
audit or investigate suspected corruption or fraud
related to the
implementation of the MOA. Secondly, and more importantly, the
main deponent to the application, Nokuthula
Mbebe, attached a copy of
a report by a firm of chartered accountants and auditors dated 20
September 2021 to her affidavit.
It is apparent from the
covering letter of the report that Dr. Mbebe requested that firm to
“
perform
agreed upon procedures engagement in relation to UIF TERS application
and disbursement of the co-operatives and private
companies.
”
Dr.
Mbebe described herself in her affidavit as the applicants’
Chief Executive Officer. The writers of that report
have not
filed affidavits to confirm the correctness of its contents. A
document that is introduced as evidence in court
proceedings must be
identified by a witness who is either the writer or signatory
thereof. The most common way to prove the
authenticity of the
document in question would be to call the author thereof to identify
the document.
[3]
The
contents of that report can accordingly not be used as evidence, with
the result that it is inadmissible.
17.
Mr. Mashavha also submitted that neither the
directive nor the MOA precludes benefits being paid to persons who
are employed by
the government, be it at local, provincial or
national level. It is correct that there is no specific
limitation to that
effect in either the directive or the MOA.
This issue became relevant because very many employees are employed
by the government
and they claimed to be also employed by the various
applicants. Those employees received their full salaries from
government
since the onset of the pandemic. On the assumption
that they were indeed employed by the applicants, they received an
additional
salary from the applicants. In my view to grant
benefits to those employees, albeit that they may have lost a second
income
due to the pandemic, would be to go against the purpose of the
directive, as pointed out above. It is important to note that
the preamble of the directive states that the Minister anticipated
that, as a result of the lockdown, companies would “
have
to shut down and employees laid off temporarily. This means
that employees are compelled to take leave, which is not
out of
choice. We therefore anticipate that employees may lose
income
”
.
18.
In my view it is apparent from the directive that
the benefits were meant for persons who, because of the pandemic,
would not have
an income. It was not meant for those who,
despite the pandemic, would nevertheless receive a full government
salary.
To interpret the directive in the way that the
applicants have, would, in my view, offend the purpose which the
benefits were meant
to serve.
19.
In all the circumstances, I am satisfied that the
applicants have failed to demonstrate the need for this court to
interfere with
the preservation orders. The application should
accordingly be dismissed. There is no reason why the applicants
should
not pay the costs occasioned by the application.
20.
Mr. Wolmarans pointed to the fact that on 27
August 2021 the Commissioner, DG and Minister entered an appearance
in terms of section
39(3) of POCA giving notice of their intention to
apply for an order excluding the Unemployment Insurance Fund’s
interest
in the credit balances from the operation of the impending
forfeiture order. As stated in paragraph 1 above, that notice
was accompanied by an affidavit contemplated in section 39(5) of
POCA. Mr. Wolmarans submitted that this application
should
be dismissed because the applicants have to date not entered an
appearance giving notice of their intention to either oppose
the
making of a forfeiture order or to apply for an order excluding their
interest in the credit balances from the operation thereof,
as they
were obliged to do in terms of section 39(3).
21.
In response to that submission, Mr. Mashavha
submitted that the applicants did not enter a notice in terms of
section 39(3) because
the credit balances should not have been the
subject matter of the preservation orders in the first place and that
“
there is accordingly nothing to
exclude
”
. Counsel
furthermore pointed out that the preservation orders had lapsed
because the NDPP did not institute arbitration and/or
action
proceedings against the applicants within thirty days of
20 August 2021, as ordered by this court.
22.
This court did not make such an order against the
NDPP. On 20 August 2021 this court, at the instance of the
Commissioner,
the DG and Minister, ordered First National Bank to
freeze the bank accounts of the first, second, third, fifth, eight,
tenth to
nineteenth and twenty-seventh applicants. The court
ordered the Commissioner, DG and Minsiter “
to
institute arbitration proceedings and/or action proceedings against
the first to fifteenth respondents within thirty (30) days
of the
date of this order for recovery monies which the applicants allege
were unlawfully and/or erroneously paid to or retained
by the first
to fifteenth respondents.
”
The
court furthermore ordered that that order “
shall
lapse and be of no force or effect
”
in
the event of the Commissioner, DG and Minister failing to institute
the above proceedings within the period stated above.
23.
At the commencement of the hearing Mr. Barrow
placed on record that he held a watching brief on behalf of the
Commissioner, DG and
Minister. After Mr. Mashavha had made
submissions in reply, Mr. Barrow sought leave to address the Court in
what he
deemed to have been a factual inaccuracy in Mr. Mashavha’s
address relating to the order granted by this court on 20 August
2021. Despite Mr. Mashavha’s objection to Mr.
Barrow’s application, I granted him leave to address the
court.
24.
Mr. Barrow pointed out that, in addition to the
above relief that the Commissioner, DG and the Minister, the second,
third and fourth
respondents herein, obtained on 20 August 2021, they
were also ordered to institute arbitrations and/or action proceedings
against,
not all but only, fifteen applicants referred to in that
order and that they had complied with that order. In his
response
thereto, Mr. Mashavha denied that there has been compliance
with that order. In light of what Mr. Barrow had informed
the court, I enquired from counsel whether his submission was that
the Commissioner, DG and Minister did not institute those proceedings
or whether he meant that he, as counsel, was unaware of the alleged
compliance. Counsel then stated, as a fact, that those
proceedings had not been instituted. I then ordered Mr. Barrow
to deliver, before 16h00 on 27 May 2022, proof that there
has been
compliance and Mr. Mashavha or his instructing attorney to deliver a
response thereto before 16h00 on 30 May 2022.
25.
On 27 May 2022 Mr. Barrow delivered documents
demonstrating that on the last day of the 30 day period, the
Commissioner, DG and
Minister instituted action proceedings in this
court against the first, fifteenth, seventeenth, eighteenth and
nineteenth applicants
and on that same day the Commissioner
instituted arbitration proceedings under the auspices of AFSA against
the first, second,
third, fifth, eight, tenth to fourteenth and
twenty-seventh applicants. Mr. Barrow furthermore reported, and
I have checked
with the registrar, that in the action proceedings,
the five applicants, represented by Mr. Mashavha’s instructing
attorney,
who is also his instructing attorney in this application,
caused a plea to be delivered on 14 December 2021.
26.
On 30 May 2022 the applicants responded to the
documents delivered on 27 May 2022 by delivering an
affidavit deposed to
by their instructing attorney and another by Dr.
Mbebe. The instructing attorney’s affidavit is irrelevant
to the order
granted on 20 August 2021 or whether or not it had been
complied with.
27.
In paragraph 6 of her affidavit, Dr. Mbebe stated
the following:
“
The
calculation of the said thirty (30) days resumes from the day the
order was granted which is the 20
th
day of
August 2021 and it ends on the 18
th
day of
September 2021 and even if we do not include the weekends and
holidays the thirty (30) days lapses on the 1
st
day of
October given the fact that the 24
th
of
September was a holiday.”
28.
Dr. Mbebe furthermore alleged that by “
the
time we received the combined summons, the above mentioned order had
already lapsed.
”
She also
confirmed that the applicants’ instructing attorney caused
appearance to defend to be served on 4 October 2021.
She raised
an issue as to the institution of the arbitration proceedings
because, what was attached to Mr. Barrow’s affidavit,
were
requests to AFSA for arbitration under its rules. It is in my
view unnecessary to decide whether or not those requests
can be
equated to the institution of arbitration proceedings, because the
Commissioner, DG and Minister have instituted action
proceedings.
They were ordered to institute either action or arbitration
proceedings or both action and arbitration proceedings.
The
institution of one form of those proceedings would constitute
compliance with the order granted on 20 August 2021, provided
that such proceedings were instituted within thirty days of 20 August
2021.
29.
Only
court days are to be included in the computation of time fixed by an
order of court.
[4]
If 20
August 2021, Saturdays and Sundays thereafter and the public holiday
on 24 September 2021 are excluded from and
the last of the
thirtieth day included in the computation of the thirty day period
referred to in the order that was granted on
20 August 2021, then the
Commissioner, DG and Minister had until midnight of 4 October 2021 to
comply with that order.
[5]
They have accordingly complied with the order.
30.
That the Commissioner, DG and Minister complied
with the order is, in my view, at present less important than the
concerning issue
that counsel stated, as a fact, that those
proceedings had not been instituted. Dr. Mbebe confirmed in her
affidavit that
the action proceedings had been served on four of the
five applicants on 4 October 2021. The face of the summons
indicates
that summons was issued against the five applicants whose
bank accounts were suspended or frozen pursuant to the order granted
on 20 August 2021. The documents delivered on 27 and 30
May 2022 demonstrate that Mr. Mashavha’s submission, regarding
the non-compliance with the order of 20 August 2021 was indeed
factually incorrect.
31.
As a result of that factually incorrect
submission, the second, third and fourth respondents incurred costs
by compiling the documents
delivered on 27 May 2022 and perusing the
documents delivered on 30 May 2022. There is no reason why the
applicants should
not pay those costs.
32.
It is pointed out that, while the order granted on
20 August 2021 remains in place, the present application is academic,
insofar
as it relates to the fifteen applicants affected thereby,
because even if the preservation orders are set aside, the order will
still prevent those applicants from having access to the credit
balances in the bank accounts concerned.
33.
In the result, it is ordered that:
1.
The application for the reconsideration of the
preservations orders be and is hereby dismissed.
2.
The applicants shall pay, jointly and severally
the one paying the other to be absolved:
2.1
the fist respondent’s costs of the
application; and
2.2
the second, third and fourth respondents’
costs, such costs to be limited to the compilation of the documents
delivered on
27 May 2022 and the applicants’ response thereto
delivered on 30 May 2022.
G.H.
BLOEM
JUDGE
OF THE HIGH COURT
For the applicants:
Mr. M.J. Mashavha, instructed
by Matiwane Attorneys, East
London and Netteltons
Attorneys, Grahamstown.
For
the first respondent: Mr. M. Wolmarans of NN
Dullabh and Co,
Grahamstown.
For the second, third and
fourth respondents:
Mr. G. Barrow of Whitesides Attorneys, Grahamstown.
Date
of hearing:
26 May 2022.
Date
of delivery of judgment:
31 May 2022.
[1]
Prevention
of Organised Crime Act, 1998 (Act 121 of 1998).
[2]
Unemployment
Insurance Contributions Act, 2002 (Act 4 of 2002).
[3]
Howard
& Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v de
Sousa
1971
(3) SA 937
(T) at 940E – H and
Maize
Board v Hart
2005
(5) SA 480
(O) at 484E referred to with approval in the minority
judgment in
Hal
obo MML v MEC for Health, Free State
2022
(3) SA 571
(SCA) at par 117.
[4]
Pierre
Cronje (Pty) Ltd v Adonis
2010
(4) SA 294
(WCC) at par 14.
[5]
Section
4 of the Interpretation Act, 1957 (Act 33 of 1957).