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[2021] ZAGPPHC 213
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Masenya and Another v Tau Rollermeule (Pty) Ltd (84019/16) [2021] ZAGPPHC 213 (10 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
(2)
OF INTEREST TO OTHER
JUDGES:
YES
(3)
REVISED.
YES
Case
no: 84019/16
In
the matter between:
LS
MASENYA
First Applicant
MURCUS
M FARMING CC
Second
Applicant
and
TAU
ROLLERMEULE (PTY) LTD
Respondent
In
re
TAU
ROLLERMEULE (PTY)
LTD
Applicant
and
MURCUS
M FARMING CC
Respondent
NEUKIRCHER
J:
1]
This is an application for recission of an order granted on 15
November 2016
which reads as follows:
“
That the
attached Settlement Agreement marked Annexure “A” be made
an order of this Court.”
2]
The application for recission
[1]
was served on 20 August 2019 i.e. 2 years and 9 months later.
3]
In essence, the relief sought by the present applicants
[2]
is the following:
3.1
condonation for the late filing of the recission application;
3.2
joinder of first applicant
[3]
to
the proceedings as he was not a separate party in the main
proceedings
[4]
;
3.3
recission of the order granted on 15 November 2016;
3.4
certain declaratory orders that the credit application and suretyship
signed by applicants on 17 October 2013 and
10 March 2016
respectively are
3.4.1
credit agreements; and
3.4.2
that they constitute reckless credit in terms of s80(1)(a) or
s80(1)(b)(i) or s80(1)(b)(ii)
of the National Credit Act no 34 of
2005 (the NCA); and
3.4.3
that they be set aside
alternately
declared reckless;
3.5
alternatively
that respondent be directed to comply with s129
[5]
of the NCA.
4]
It is respondent’s position that:
4.1
the recission application is late and fails to provide a proper
explanation not only as
to why the applicants (and in particular the
second applicant) failed to defend the main application, but why this
application
was launched more than almost 3 years later; and
4.2
the recission application fails to establish a
bona
fide
defence.
The joinder
application
5]
The first applicant, as sole member and director of the second
applicant, seeks
to be joined in the main proceedings as he states
that he has a direct and substantial interest in the proceedings.
This, he says,
arises out of the suretyship which he avers is the
subject matter of this application and which he alleges is linked to
the Credit
Agreement and the Settlement Agreement (the Agreement)
concluded between the Respondent and the second applicant.
6]
Rule 10 provides as follows:
“
10
Joinder of Parties and Causes of Action
(1) Any number of
persons, each of whom has a claim, whether jointly, jointly and
severally, separately or in the alternative, may
join as plaintiffs
in one action against the same defendant or defendants against whom
any one or more of such persons proposing
to join as plaintiffs
would, if he brought a separate action, be entitled to bring such
action, provided that the right to relief
of the persons proposing to
join as plaintiffs depends upon the determination of substantially
the same question of law or fact
which, if separate actions were
instituted, would arise on each action, and provided that there may
be a joinder conditionally
upon the claim of any other plaintiff
failing.
(2) A plaintiff
may join several causes of action in the same action.
(3) Several
defendants may be sued in one action either jointly, jointly and
severally, separately or in the alternative, whenever
the question
arising between them or any of them and the plaintiff or any of the
plaintiffs depends upon the determination of substantially
the same
question of law or fact which, if such defendants were sued
separately, would arise in each separate action…”
7]
It is clear from the main proceedings that the Agreement was
concluded between
second applicant and the respondent. The terms of
the Agreement relate to the debt owed to respondent by the second
applicant.
The only participation by the first applicant as regards
the Agreement was that he signed it on behalf of second applicant.
The
lis
was thus not between respondent and first applicant
and no right which respondent may have against first applicant
personally is
sought to be enforced.
8]
It has been stated by our courts that even though a person has, in
his personal
capacity, concluded the contract which an applicant
seeks to enforce
[6]
against a
corporation, relief against the corporation is not precluded by a
failure to join the signatory to that contract. It
is also not
necessary for a creditor to join, as defendant, debtors who are
jointly and severally liable for the debt sued upon
[7]
.
9]
In
Parekh
v Shah Jehan Cinemas (Pty) Ltd
,
Leon J stated
[8]
“
The
argument for the respondents on this part of the case does not appear
to me to rest upon any firm foundation. The rule relating
to
non-joinder is one of convenience raising a question of practice and
not one of substantive law. The modern practice is clear:
in the case
of joint and several debtors a creditor may select his target. And
the great weight of authority supports this practice.
Christie Law of
Contract at 249 states the position as follows:
‘
In respect
of these debtors who are jointly and severally liable each is liable
to the creditor for the full amount of the debt
and the creditor can
at his option claim the full debt or any lesser amount from any of
them provided he does not receiver in total
more than the full amount
of the debt’ “
10]
A “direct and substantial interest” has been held to be
“…
an
interest in the right which is the subject-matter of the litigation
and not merely a financial interest which is only an indirect
interest in such litigation
[9]
.
11]
It is thus “…
a
legal interest in subject-matter of the litigation excluding an
indirect commercial interest only.”
[10]
12]
The “subject-matter” of the present litigation is the
Agreement entered into between
the parties in September 2016 which
was signed by virtue of the debt owed by second applicant. The first
applicant seeks to be
joined because he states that the suretyship he
signed on 10 March 2016 provides him with a direct and substantial
interest because
it is linked to the present application and the
Agreement.
13]
But the suretyship is irrelevant for the purposes of the present
proceedings as order was sought
and granted solely against second
applicant on 15 November 2016 and no liability in respect thereof for
the first applicant arises
by virtue thereof.
14]
Where the suretyship is however relevant is in the proceedings under
case no 193/2018 in the Magistrate’s
Court, Ventersdorp. This
action is against the first applicant and it is based on the
suretyship. That action is still pending.
15]
In my view, the proceedings before me have nothing to do with the
suretyship – in fact the
Agreement itself makes no mention of
it and thus no personal consequences flow from the judgment that was
granted against second
applicant for first applicant.
16]
What is more, all defences that first applicant now raises must be
raised by him in the Magistrate
Court where they can be adjudicated.
17]
In light of this and the fact that there are pending proceedings
against first applicant in Ventersdorp
on the issue of the
suretyship, he has no personal direct or substantial interest in the
subject matter of the present application
and the application for
joinder is therefore dismissed.
Background
18]
The respondent is a supplier of chicken feeds. The second applicant
farms with chickens and its
sole member and director is the first
applicant. It appears, from all that is before the court, to be
common cause that it was
first applicant who opened an account with
respondent on behalf of second applicant, on 17 October 2013 and who
signed a suretyship
on 10 March 2016. The purpose of this credit
facility was to ensure that respondent would supply second applicant
with chicken
feed and related goods on credit.
19]
Until approximately 2016 the second applicant’s account was in
good order. However the second
applicant began defaulting on its
obligations to pay and was in default in an amount exceeding R5
million. The result was that
during +/- August 2016 the respondent
communicated its intention to institute legal action against second
applicant in respect
of monies owed in respect of the chicken feed
sold and delivered.
20]
On 28 September 2016 first applicant, on behalf of second applicant,
signed the Agreement in which
the second applicant admitted
20.1
it owed respondent R5,395,962.30 as at 23 September 2016; and
20.2
it could not pay the full amount outstanding.
21]
The parties also agreed that the Agreement could be made on Order of
the Court.
22]
The parties agreed to certain terms of payment and
“
3.7
if the Defendant does not adhere to his obligations in terms of this
agreement and/or if any other
condition of this agreement is not
adhered to … the Plaintiff will, apart from any other rights
which the claimant may have,
be entitled to apply for judgment
against the Defendant, without any notice of the Defendant and may
continue with any further
action to collect the outstanding debt
amount and/or will be able to apply for the liquidation of the
Defendant and/or any other
action or application.”
23]
On 25 October 2016 the Respondent brought an application in which it
sought an order that
the Agreement be made an order of Court. As
stated in paragraph [1]
supra
, that application was granted.
24]
On 6 December 2016 respondent’s attorney sent a letter of
demand to second applicant in
which it demanded payment of an amount
of R5,440,032.98 which it alleged was owing as at 30 November 2016
and stated “
it
is our instructions to apply to court for judgment for the said
outstanding amount and continue with the collection process in
this
regard
.”
[11]
25]
On 1 March 2017 the second applicant’s attorney, Gildenhuys
Botha Inc, wrote to respondent
asking it to withdraw a warrant of
execution that had been issued on 17 February 2017
[12]
and asked the respondent for an indulgence and further time to pay.
26]
During May 2017 second applicant undertook to pay R40,000 to R50,000
every 30 to 50 days to liquidate
its debt. Between 11 July 2017 and 8
February 2018 second applicant made payments totalling R227,908.60
and it states:
“
39.
It was on the basis of the aforesaid payment arrangement and/or
Settlement Agreement that the
Applicants did not consider to launch
this Application. In fact, it was not necessary to even consider
launching this Application.
40.
This was exacerbated by the fact that the Applicants were not legal
(sic) presented.”
27]
On 6 August 2017 the Gauteng Division, Pretoria, granted judgment in
favour of the Land and Agricultural
Development Bank of South Africa
(the Land Bank) against second applicant as second applicant had
defaulted on its obligations
to the Land Bank. It is stated in the
Application for Condonation
[13]
that an appeal was pending to the Full Bench to be heard on 19 August
2020 – nothing was placed before me regarding the outcome
of
this appeal.
28]
On 21 November 2018 respondent instituted action against first
applicant in the Magistrate’s
Court Ventersdorp based on the
suretyship signed by first applicant as set out in paragraph [5]
supra.
29]
The third application between these parties is the application for
liquidation brought by respondent
against second applicant in October
2018. A provisional order of liquidation was granted on 12 September
2019 and on 29 July 2020
judgment was handed down by Maumela J
discharging the rule and dismissing the application.
30]
Of course, the second applicant states that the provisional
liquidation order suspended the recission
application which was
delivered on 20 August 2019 about three weeks before the
rule
nisi
in the liquidation application was granted.
The Application for Condonation for the late
institution of the
recission application was served on 7 August 2020 once the
provisional order of liquidation had been discharged.
31]
There is, however no explanation why the Application for Condonation
was not launched at the same
time as the recission application.
32]
It is thus common cause on these papers that:
32.1
the recission application was launched two years and nine months
after the Agreement was made an order of
Court;
32.2
the application for condonation was launched just shy of a year after
that.
Recission
Application
33]
There are three ways in which a judgment granted in the absence of a
party may be set aside:
33.1
Rule 31(2)(b); or
33.2
Rule 42(1); or
33.3
at common law
[14]
.
34]
This application is launched in terms of Rule 42(1)
alternatively
the common law.
35]
Rule 42(1) provides as follows:
“
(1)
The court may in addition to any other powers it may have, mero motu
or upon the application of
any party affected, rescind or vary:
(a)
An order or judgement erroneously sought
or erroneously granted in the absence of any party affected thereby…”
36]
In
Tshabalala
and Another v Peer
[15]
the Full Court stated that if the Court holds that an order or
judgment was erroneously granted in the absence of any party affected
thereby it should, without further enquiry, rescind or vary the
order. However it does not appear from this judgment that there
was
any issue regarding when the recission application was launched. It
appears that judgment was granted in the absence of defendant
on 10
April 1974 and “
thereafter
the first, second, third and fifth defendants each brought an
application for recission of the default judgment…”
37]
In
Topol
and Others v LS Group Management Services (Pty) Ltd
[16]
Shakenovsky AJ, in following
Tshabalala
(
supra
),
found that it is not a requirement for recission under Rule 42(1)(a)
that an applicant need, in addition, establish good cause
for
recission or a
bona
fide
defence
[17]
, however in the
absence of an error in the proceedings, the applicant must fall back
on either Rule 31(2)(b) or the common law
in respect of which he must
show good cause.
38]
In
Avenet
South Africa (Pty) Ltd v Lesiva Manufacturing (Pty) Ltd and
Another
[18]
the parties, who were not involved in litigation, had concluded a
settlement agreement in respect of moneys first respondent owed
applicant and the applicant then applied to make the settlement
agreement an order of court. Budlender AJ stated the following
when
refusing to make the agreement an order of court:
“
[27]
After having considered the relevant authorities, I have concluded
that I have no power to make the
present settlement agreement an
order of court.
[28]
It seems to me that the approach taken in Eke v Parsons
[19]
and PL v YL
[20]
while not binding on me, is correct.
[29]
The practice of making a settlement agreement an order of court has a
long history in common
law. However this invariably appears to have
taken place where the settlement agreement was reached between the
parties which were
already engaged in litigation. Apart from the
Growthpoint Properties
[21]
case, … there appears to be no judicial support for the
contention that a court has a power to make a settlement agreement
an
order of court where litigation has not commenced by the time that
the settlement agreement is concluded.
[30]
This is unsurprising. The primary function of the courts is to
determine disputes between the
parties. The basis up on which a court
makes a settlement agreement an order of court is therefore that
there is a dispute between
the parties which is already before the
court and that, absent the settlement agreement the court would have
to adjudicate that
dispute…
[34]
A breach of a court order is a serious matter. Disobedience of a
court order constitutes a violation
of the Constitution and can give
rise to contempt proceedings, with consequences such as
incarceration. It does not seem permissible
or appropriate for
parties to be free to clothe their agreement with these consequences,
in circumstances where the agreement is
not resolving a matter
already before the court.”
39]
In
Eke
v Parsons
(
supra)
[22]
the court stated:
“
[25]
This in no way means that anything agreed to by the parties should be
accepted by a court and made
an order of court. The order can only be
one that is competent and proper. A court must thus not be mechanical
in its adoption
of the terms of a settlement agreement. For an order
to be competent and proper, it must in the first place ‘relate
directly
or indirectly to an issue or lis between the parties’.
Parties contracting outside of the context of litigation may not
approach
a court and ask that their agreement be made an order of
court. On this issue Hodd
[23]
says:
‘
If two
merchants were to make an ordinary commercial agreement in writing,
and then were to join an application to court to have
that agreement
made an order, merely on the ground that they preferred the agreement
to be in the form of a judgment or order because
in that form it
provided more expeditious or effective remedies against possible
breaches, it seems clear that the court would
not grant the
application.’
That is so
because the agreement would be unrelated to litigation.”
40]
But that is precisely what occurred in this matter – an
agreement that was entirely unrelated
to litigation (because none had
been instituted) was elevated to the status of a court order and this
by agreement between the
parties.
41]
In the present case the bases upon which the second applicant asks
that the recission be
granted are varied but, in my view, given the
fact that no action preceded the parties Agreement being made a court
order, the
only one which is presently relevant is that relating to
Rule 42(1)(a).
42]
It is clear from the above authorities that on 15 November 2016 the
court erroneously granted
an order as set out in para [1]
supra
and this being so the order should be set aside.
Condonation
43]
However, in the present matter, that is not the end of the enquiry as
it is common cause
that this recission application was launched two
years and nine months late in circumstances where the second
applicant had had
notice of the original application, had received
correspondence pertaining to the order granted and a demand for
payment pursuant
to that, had consulted attorneys during early 2017,
sought an opinion from counsel regarding a possible counterclaim and
paid R278,908.60
between July 2017 and March 2018.
44]
The defence that the applicants were not represented when the
Agreement was signed in 2016
is no defence at all and even if it
were, on its own version an attorney was consulted in early 2017 –
had it truly intended
to contest the Agreement or had a defence to
its terms, a recission application should have been brought then. It
was not and instead
a payment arrangement was entered into.
45]
Thus, it appears that second applicant acquiesced in the order.
46]
In
Kouligas
and Spanoudis Properties (Pty) Ltd v Boland Bank Bpk
[24]
the court found that in circumstances where facts come to a
defendant’s knowledge which constitute a good defence only
after
default judgment is granted, the judgment should be rescinded.
However
46.1
in this matter judgment was granted on 11 July 1985;
46.2
on 7 August 1985 defendant decided to bring the recission
application; and
46.3
the application was signed on 3 October 1985 and enrolled for hearing
on 11 October 1985 i.e. three
months after judgment was granted.
47]
However, in
Morkel
ABSA Bank Bpk en ‘n Ander
(
Morkel
)
[25]
, the court found that an
applicant who has been in wilful default cannot apply for a recission
of judgment if he or she becomes
aware of a possible defence
after
judgment has been granted against him/her.
48]
In
Morkel
48.1
after initially defending the action, the defendant withdrew his
defence and signed a consent to judgment
on 22 October 1993;
48.2
he defaulted on his undertakings and judgment was granted against him
by default on 24 May 1994;
48.3
the application before the court was in respect of an interdict to
stop a sale in execution pending
an application for recission of
judgment. The former was instituted on 27 September 1994 i.e. 11
months after the consent to judgment
and four months after judgment
was granted.
49]
In discussing the
Kouligas
judgment (
supra
)
Steyn AJ, in disagreeing with it stated:
“
Indien ‘n
verweerder subjektief kennis het van die feit dat, indien hy nie
verdediging aanteken nie ‘n vonnis
teen hom gegee kan
word sonder verdere kennisgewing aan hom (ooreenkomstig die beplaings
van Hofreel 17(2)(a) of (b), saamgelees
met Vorm 10 en Vorm 9 van die
Eerste Bylae, onderskeidelik) en hy besluit om nie verdediging aan te
teken nie, is so ‘n verweerder,
myns insiens, opsetlik in
versuim.”
50]
In
Roopnarain
v Kamalapathy and Another
[26]
50.1
judgment was obtained on 25 September 1970; and
50.2
the application for recission was served on 26 March 1971 i.e. six
months later.
51]
In refusing the recission application, James JP stated:
“
Although
the Rule
[27]
does not apply to motion proceedings it is, nevertheless,
a
pointer to what would be a reasonable time within which to seek
recission in a case such as the present one. Roopnarain has exceeded
such a reasonable time by many months. As was said in Saloojoe and
Another NNO v Minister of Community Development,
1965 (2) SA 135
(AD), there is a limit beyond which a litigant cannot escape the
result of his attorney’s lack of diligence or the insufficiency
of the explanation tendered. In my view the limits have been exceeded
in this case by a large margin”
[28]
.
52]
But as stated
supra
, the second applicant does not need to
show “good cause” for the recission. What it needed to
demonstrate is why condonation
for the late filing of the recission
application should be given.
53]
R42(1)(a) is “
a
procedural step to correct designed to correct expeditiously an
obviously wrong judgment or order
”
[29]
but even so the
application must be brought within a reasonable time.
54]
The words “reasonable time” form a somewhat elastic
concept and depend on the facts
of each case.
[30]
55]
As was pointed out by Eloff JP in
First
National Bank of Southern Africa Ltd v Van Rensburg NO and Others: in
re First National Bank of South Africa Ltd v Jurgens
[31]
“
Even if it
can be said that the order granted by Coetzee J was erroneously
sought or contains a patent error, the application should,
in my
view, have been dismissed by reason of the long time lapse. As
mentioned previously, the appellant’s attorney uplifted
the
order on approximately 10 September 1988. The application in situ was
launched on 18 November 1991, more than three years later.
Rule 42(1)
was designed, as was said in Bakoven Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E) at 471E-F, ‘to correct expeditiously an
obviously wrong judgment or order’.
The need to
proceed rapidly to correct an order mistakenly granted was mentioned
by Trollip JA in Firestone South Africa (Pty) Ltd
v Gentiruco AG
1977(4) SA 298(A) at 306H
‘
Thus, provided the
Court is approached within a reasonable time of its pronouncing the
judgment or order, it may correct, alter
or supplement it in one or
more of the following cases …’
That was
admittedly said in relation to the common-law power of correcting an
order of Court, but the reasoning applies equally
well to
applications under Rule 42(1).
It
is in the interest of justice that there should be relative certainty
and finality as soon as possible concerning the scope and
effect of
orders of Court. Persons affected by such orders should be entitled
within a reasonable time after the issue thereof
to know that the
last word has been spoken on the subject. The power created by Rule
42(1) is a discretionary one (see Tshivhase
Royal Council and Another
v Tshivhase and Another; Tshivhase and Another v Tshivhase and
Another
1992 (4) SA 882
(A) at 862 in fine 863A) and it would be a
proper exercise of that discretion to say that, even if the appellant
proved that Rule
42(1) applied, it should not be heard to complain
after the lapse of a reasonable time. A reasonable time in this case
is substantially
less than the three years referred to.”
Conclusion
56]
In the present case, not only was the application for recission
brought two years and nine
months after the order was granted, but it
was not accompanied by a proper Application for Condonation. That was
launched a year
later.
57]
I agree with Eloff JP that there must come a time in every matter
where the parties must
reconcile themselves to the certainty that a
judgment or order brings. It can never be in the interests of justice
that years after
an order is granted Pandora’s Box is opened
and the parties are again plunged into the vortex of litigation. It
would defeat
the entire purpose of the finality of an order
especially in circumstances like the present one where the second
applicant not
only entered into an agreement but was notified that
judgment had been granted, had received legal advice within four
months of
an order being granted by consent and in respect of which
it made payments to liquidate its debt.
58]
I am of the view that this application was not brought within a
reasonable time and that
condonation should therefore be refused.
This being so, the application for recission of judgment, in this
matter, falls to be
dismissed and costs must follow the result.
Order
59]
Thus, the order I make is the following:
59.1
the application for joinder is refused;
59.2
the application for condonation for the late filing of the recission
application is dismissed;
59.3
the application for recission of judgement granted on 15 November
2016 is dismissed;
59.4
the applicants are ordered to pay the respondent’s costs.
NEUKIRCHER J
Date of hearing: 9
February 2021
Date of judgment: 10
March 2021
Note:
The
parties agreed that the application could be decided on the papers
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 10 MARCH 2021.
Counsel
for applicants: Mr Mofokeng
Instructed
by: Ndobe Inc Attorneys
Counsel
for respondents: Adv F J Erasmus SC
Instructed
by: De Kocks Attorneys
[1]
Brought
under Rule 42(1) alternatively the common law
[2]
The
parties are referred to as in the recission application and not the
main application
[3]
Mr
Masenya
[4]
What
is referred to as “the main application” or “the
main proceeedings” in this judgment is the
application
to make the Agreement an order of court
[5]
s129(1) as
read with s130
[6]
Wholesale
Provision Supplies CC v Exim International CC
1995 (1) SA 150
(T) at
158D-I
[7]
1982(3) SA
618(D)
[8]
A
t
622E-G in respect of an argument that, as third respondent had
passed away applicants were precluded from continuing with the
suit,
until third respondent executor had been joined
[9]
Bohlokong
Black Taxi Association & Interstate Bus Lines (Edms) Bpk
1997
(4) SA 635
(O)
at 644A-B
[10]
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2) SA 151
(0) at 169,
170; Burger v Rand Water Board
2007 (1) SA 30
(SCA) at paras 7-9
[11]
In terms of
clause 3.5 of the Settlement Agreement which states
“
2.3
It all the chickens could
not be sold within the next six weeks, the Plaintiff
will have the
choice to either give back the remaining chickens not sold to the
Defendant and request the Court for judgement,
without any notice to
the Defendant for the outstanding balance then due and payable, or
to extend this six week period for another
period and/or periods to
sell the remaining chickens and then request the Court for
judgement, without any notice to the Defendant,
for the outstanding
balance then due and payable…”
[12]
i.e
subsequent to the Agreement being made an order of court
[13]
See
paragraph [30]
[14]
Hardroad
(Pty) Ltd v Oribi Motors (Pty) Ltd
1977 (2) SA 576
(W) at 578 B-C;
De Wet and Others v Western Bank Ltd
1977 (4) SA 770
(T) at 776E
[15]
1979
(4) SA 37 (T)
[16]
1988
(1) SA 639 (W)
[17]
Bakoven
Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (E)
[18]
2019 (4) SA
541 (GJ)
[19]
2016 (3) SA
37
(CC)
2015 (11) BCLR 1319
;
[2015] ZACC 30)
; dictim in para [25]
applied
[20]
PL v YL
2013
(6) SA 28
(ECG) ([2013]
4 ALL SA 41)
; dictim in para [15] applied
[21]
Gowthpoint
Properties Ltd v Makhonya Technologies (Pty) Ltd and Others (2013)
ZAGPPHC 43
[22]
At para [25]
[23]
Hodd
v Hodd; D’Aubrey v D’Aubrey 1942 NPD 198
[24]
1987 (2) SA
414 (O)
[25]
1996
(1) SA 899 (C)
[26]
1971 (3) SA
387 (D)
[27]
In this case
the referral was to Rule 31(2)(b)
[28]
A
t
391B-D
[29]
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471 E-F
[30]
Promedia
Drukkers & Uitgewers (Edms) Bpk v Karmowitz
1996 (4) SA 411
(C)
at 421(G) where the court found a delay of two and a half months not
to be a bar
[31]
1994
(1) SA 677
(T) at 681B-G