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[2021] ZAGPPHC 296
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Bee Foundation (Pty) Ltd and Others v IDADA Trading 108 (Pty) Ltd (5654/2011) [2021] ZAGPPHC 296 (21 April 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 5654/201 1
In
the matter of:
BEE
FOUNDATION (PTY) LTD
First Plaintiff
LEDWABA,
LAZARUS
MAPONYA
N.O.
Second
Plaintiff
MCKENZIE,
WERGELE
STAFFORD
N.O.
Third Plaintiff
KOKA,
JERRY
SEKELE
N.O.
Fourth
Plaintiff
and
I
DADA
TRADING
108 (PTY)
LTD t/a
I
DADA
PLASTICS
Defendant
(Reg
No: 2005/041623/07)
J
U D G M E N T
MAUMELA,
J
1.
This application concerns three interlocutory aspects namely:
1.1
The question whether or
not IDADA is entitled to costs for having
pursued an interlocutory Rule 30A application. In this regard,
reference is made to paragraph
11.2 of the 'Joint Minute for the
First Case Management Conference on 11 October 2019, before this
court.
1.2
The admissibility, in the
prospective trial proceedings, of the
founding and answering affidavits served and filed during the course
of motion proceedings
under the same case number (5654/2011) which
preceded this dispute being referred to trial. In this regard,
reference is made to
paragraph 13 of the 'Joint Minute for the First
Case Management Conference on 11 October 2019 before this court.
1.3
The admissibility of a
transcript concerning evidence given at a
section 415 insolvency inquiry in respect of BEE's insolvent estate,
which transcript
is annexed to its founding affidavit in the former
motion proceedings and has been separately discovered in the
subsequent trial
proceedings. In this regard, reference is made to
paragraph 13 of the 'Joint Minute for the First Case Management
Conference on
11 October 2019 before this court.
THE
THREE ASPECTS
2.
The applicant proceeded to deal with the three aspect as follows: The
first
interlocutory aspect concerns:
The question
whether
IDADA
Is entitled to costs
arising from
its rule 30 application:
Concerning
this aspect, the applicant submits that on the 27th of March 2019,
BEE served a notice of bar on IDADA, which gave rise
to IDADA's Rule
30(2)(b) complaint and subsequent Rule 30(2) application. The
applicant submits that BEE's "irregular' notice
of bar was the
result of an erroneous interpretation of Rule 28(8).
The
relevant procedural background
3.
On the 7th of February 2019, BEE served and filed a notice of
intention to amend its POC in terms of Rule 28(1). IDADA did not
object to this and subsequently, BEE served and filed its amended
pages on 22 February 2019. Pursuant to BEE having served and filed
its amended pages in terms of Uninform Rule 28(7), it was incumbent
upon IDADA to decide whether it would consequentially amend/adjust
its plea within 15 court days, as provided for in terms of Uniform
Rule 28(8) or not. This 15-day period expired on the 15th of
March
2019. After IDADA failed to adjust its plea in terms of Rule 28(8),
BEE served and filed a notice of bar on the 27th of March
2019,
requesting IDADA to consequentially adjust its pleading within 5
days.
4.
BEE accepts that on a proper interpretation of Rule 28(8), it does
not envisage compelling a party to adjust its pleading by way
of a
notice of bar. It is clear that a party under Rule 28(8) i.e. IDADA,
has the prerogative to decide if it wishes to adjust.
BEE's notice of
bar subsequently gave rise to IDADA's notice in terms of Rule
30(2)(b). After BEE opted not to withdraw its notice
of bar, IDADA
pursued a substantive interlocutory application, seeking to strike
out/set aside the notice of bar. After service
of IDADA's substantive
interlocutory application, BEE proceeded to withdraw its notice of
bar, without tendering costs.
The
prevailing law on Rule 30 notices and applications
5.
Despite BEE accepting that its notice of bar can be regarded as
"irregular", it persists in its view that IDADA's Rule
30(2)(b) notice and subsequent substantive application was wholly
inappropriate and unnecessary. BEE's argument is based on the
following:
5.1
A
sine
qua
non
for the delivery of
a notice in terms of Rule 30 and any subsequent substantive
application in terms of the said rule - is that
the applicant, in
this instance IDADA, must show that it has or will suffer actual
prejudice relating to the continuation of the
litigation at hand, if
the so-called irregularity is not removed;
5.2
The
fact
that
IDADA
does
not
even
mention
the
word
prejudice in
its
founding
affidavit renders
its
application
fatally
defective, considering that
it
circumvents
the entire
purpose of
a founding
affidavit in Rule
30
proceedings
[1]
and;
5.3
It is trite
law that
IDADA must
stand and fall
by its
founding affidavit.
[2]
6.
The
applicant submits that at best for IDADA, its attorney of record
could have contacted the attorney of record for BEE and that
the
notice
of
bar
serves
no
procedural
purpose and
could
not
compel the
subsequent
adjustment
or
amendment
of its
plea
already filed. Applicant
submits
that such a
suggested
approach,
would
have
accorded
with
the
locus
classicus
in
this
Court
on
Rule 30
applications
and
specifically
considering
the concept
of
prejudice. In
the matter
of
De
Klerk
v
De
Klerk
[3]
,
which
also concerned an irregular notice of bar, Flemming J held as follows
at 425 and 426:
''There
was
the
aforesaid
absence
of
prejudice
worthy
of
serious
mention;
and
very
limited effort
would
have
been
involved
in
raising
a
query
with
the
defendant's
representative. The
combined
effect
of
those
considerations
called
for
the
taking
of
non-litigious
remedial
steps
or
steps
to
obviate
litigation.
Such
steps
could
be
taken
speedily, effectively and cheaply.
"
[4]
''The
prejudice which is relevant for the
purpose of
Rule 30(1) requires more than
that.
It
is
true
that
on
receipt
of
the
notice
of
bar
the
attorney
had
to
read
it,
to
consider
it,
and to
decide
what
to
do
next. But
at
the
point where
that
decision was
taken,
he
had
to
take
the
correct
decision.
At
the
point
of
making
that
decision
(why
which
time
most of the
effort and costs already alluded to
had come into
being), he had to
be
led by the prejudice which
his client would suffer if he did not bring a Rule 30
application. He
had to
decide whether
his
client would
be
prejudiced in
the
further
conduct
of
the
case
if
an
irregular
step,
which
I
will
take
the
present notice
to
be,
is
not set aside. When
the
matter
comes before Court that
is the
nature of
prejudice which
the
Court
in
turn,
should
assess."
"It
must again be emphasised that Rule 30(1) applications should
succeed only if
there is
prejudice related to
proceeding
with the litigation. After the
plaintiff's attorney
in
the
present case
had
read and
considered the
notice
of
bar
the
correct decision was not
to deliver a Rule 30(1)
application.
The
limited prejudice
that was recognisable
should
have
been
coped
with
in
another
fashion.
It
is
not
necessary
for
the decision of this application to speculate whether a different
conclusion might become
possible
because
of
additional facts,
example,
if
defendant insisted
upon receiving a
plea
despite being informed of the
plaintiff's a/legation
that same had already
been
delivered.
The
application
being
unjustified
and
an
order
of
Court
not being required to
remove or
prevent prejudice or
injustice,
the application is
refused."
7.
The
applicant makes
the point
that there
is
no
prejudice,
if
the
further
conduct of
the
case
is
not
affected by
the
irregularity and
the
irregular step, so to speak, can simply
be
ignored.
[5]
The
applicant points out
that IDADA
simply
elected not
to
amend or
adjust its
plea
pursuant
to
it,
(
the
applicant), having
effected
its
amendment
in
terms
of Uniform
Rule
28(7).
It
argues
that
this
conscious
election
meant
that
the
"irregular"
notice of
bar brought
no negative
or
prejudicial
effect to
bear
on
IDADA.
It
did
not
prejudice
IDADA
in
conducting
further
litigation, considering that IDADA
had
no
intention
of
consequentially
adjusting or
amending
its
pleading.
8.
According to the applicant, on this score, BEE could never have
argued that IDADA in any way, shape or form, would be precluded
from
adjusting or amending its pleading in terms of Rule 28(8),
considering that it had no intention to do so. The applicant submits
therefore that the Rule 30 notice and subsequent substantive
application was pursued as a result of a misconceived attempt to
prove a point, without considering the actual purpose of Rule 30 and
whether or not IDADA stands to suffer actual or procedural
prejudice
in continuing its litigation.
9.
The
applicant
cites
following
dicta
in
the
case
of
SA
Metropolitan
Lewensversekeringmaatskappy Bpk
v
Lauw
N.0
[6]
where
the
court
confirms
the stated position as follows:
"Even
if
this
generalization
needs
qualification,
the
exercise
of
the
Court's
discretion
has
been
consistently
led
by
the
presence or
absence
of
prejudice
in
relation
to
the
exercise
of
a
party's
procedural
right
or
duty
to
respond
to
a
communication
received, or
to
the
taking
of
a
next
step
in the sequence of permissible procedures to ripen the matter for
proper orderly hearing. Where
such
prejudice
is
absent,
a
decision
to
set
the
irregular
proceeding
aside will
not
be
given.
On
the
contrary, the
irregularity
may be
overlooked.
[7]
"
"With
the
picture of
absence of
prejudice which
has
been
sketched, no
other
order
"seems
meet" (Rule
30(3))
than
to
dismiss
the
application or
at
most to
go
through
the
formality of
condoning the
irregularity. In
such
circumstances defendant could
not
have
expected
an
order
with
any
substantially
different
effect.
In
this
context
any
hopes
that
may
have
lived
for
delay
or
for
harassment by
way
of
an
order
as
to
costs
(for
which
objects
opposition
to
the
amendment
application
may
have
been
the
key
for
a
Rule
30(1)
application) are
irrelevant. The
Rule
30(1)
application
of
defendant
was accordingly not
justified.
Insofar
as
the
Court's
discretion
as
to
costs
is
concerned,
it
would
in
any
event
seem
to be
inappropriate to regard a
party
who has achieved nothing more substantial
(and
could
never
have
hoped
to
achieve
anything
more)
than
the
Court's
concurrence
with
a
submission
that
the
other
party's
procedure
was
not
technically
correct,
as
a
"successful"
party.
It
appears
to
be
more
correct
to
ask
whether
a
necessity to
incur
the
costs
of the
Rule
30 (1)
application
was caused by
plaintiff.
See
Texas
Co
(SA) Ltd
v
Cape
Town
Municipality
[8]
.
I
believe
that
in
the
circumstances
that was not the case.
10.
On the basis of the above,
the applicant argues that IDADA's Rule 30
application and/or its persistence for costs should be refused. It
argues further that
IDADA should be ordered to pay BEE's costs of
pursuing this argument in these proceedings considering that its Rule
30 application
is inherently flawed for absence of any actual
procedural prejudice.'
11.
The second interlocutory
aspect has to do with:
The admissibility
of
the founding
and answering
a
ffidavits: The applicant submits that for purposes of
determining the admissibility of the affidavits, this court should
consider
the following:
11.1
The pleadings and witness statements filed of record insofar as it
speaks to
the fundamental requirement of relevance in respect of
admissibility and
11.2
The contents of the affidavits in issue, considering this court's
inherent
discretion to consider the contents of any documentary
evidence forming the subject matter of a dispute regarding its
admissibility.
12.
The applicant submits that
the obligation by IDADA to its signed and
commissioned founding affidavit and its answering affidavit was
opportunistic. It points
out these documents were served and filed
within the context of motion proceedings. As a result, the dispute
was referred to trial.
Applicant submits that the relevant affidavits
and their contents addressed the exact same issues which now serve
before this Court
in terms of the pleadings and witness' statements
filed of record. According to the applicant, the affidavits
constitute documentary
evidence which is directly relevant towards:
(i). the primary facts pleaded by the respective parties and (ii).
the secondary evidence
sought to be detailed in the witnesses'
statements.
13.
The applicant argues that
there could be no procedural prejudice to
either party, or any prevailing legal rationale for not allowing this
Court to take cognisance
of what has been stated under oath by the
respective parties prior to this matter having been referred to trial
and affording each
of the respective parties the option to either
cross-examine on the contents of the affidavits or refer to the
evidence contained
therein for purposes of legal argument. Applicant
makes the point therefore, that the test for admissibility of the
relevant affidavits
is the same for any other documentary evidence
and that it remains relevant.
14.
According
to
the
applicant,
relevance
is
essentially
a
matter
of reason
and
common
sense,
based
upon
a
blend
of
logic
and
experience
lying
outside
the
law.
[9]
It views
that
on this
score,
it is
highly relevant that the witnesses
it seeks to
call at the trial, each of which
will file
a witness's
statement,
as well
as the
solitary witness on
behalf
of
IDADA,
Mr.
Bennie
Du
Plessis,
who
will
also
file
a witness's
statement, were the deponents to the affidavits signed and
commissioned
on behalf
of the respective
parties
when this dispute initially fell to
be decided
within
the
context
of
motion
proceedings. Amongst other
things, BEE
seeks
to
rely
on
the
allegations
and
statements of fact made by IDADA in its
answering
affidavit, through its
sole
director,
shareholder
and
controlling
mind
Du
Plessis,
to either
potentially:
(i).
persuade this Court, as a result of its relevance, to draw certain
inferences and make certain findings; or
(II)
to showcase certain contradictions in the evidence of IDADA which
either discredits, disproves or disadvantages IDADA's version.
BEE
argues that in the circumstances, there can be no question as to the
admissibility of the affidavits signed and commissioned
and filed of
record for purposes of the prospective trial court hearing.
15.
The
third
interlocutory aspect concerns:
The admissibility
of the 415
insolvency inquiry t
ranscript. BEE submits that
for purposes of determining the admissibility of the 415 insolvency
inquiry transcripts, this court
should consider the following:
15.1
The pleadings and witness statements filed of record insofar as it
speaks to
the fundamental requirement of relevance in respect of
admissibility,
15.2
The contents of the affidavits in issue and the contents of the 415
insolvency
inquiry transcripts in issue, considering this court's
inherent discretion to consider the contents of any documentary
evidence
forming the subject matter of a dispute regarding its
admissibility and
15.3
BEE seeks to utilise the transcripts to potentially achieve the
following:
15.3.1
to test the credibility of IDADA's version as proffered by its
proposed witness Du Plessis,
("the first purpose").
15.3.2
to prove the truth of certain facts and admissions made by Du Plessis
during the course
of the inquiry ("the second purpose").
16.
On the main, BEE submits
that the section 415 insolvency inquiry
transcripts and its contents are admissible for both its stated first
and second purposes
at the prospective trial hearing, considering the
following:
16.1
That as a matter of law, the transcripts are not
hearsay.
16.2
That even
if
this
court
finds
that the
transcripts
are hearsay, it, (BEE), hereby seeks its
admission
in
terms
of section 3 of the Law
of
Evidence
Amendment
Act
[10]
,
("the
Evidence
Amendment
Act") and
16.3
That
IDADA
itself
under
oath,
in
terms
of
the
signed
and
commissioned
answering
affidavit
of
Du Plessis,
within
the
context of
the
former
motion proceedings, already stated
that it,
(IDADA), does not dispute the evidence which Du Plessis gave
at
the
415
insolvency inquiry
.
[11]
17.
BEE
asserts
that
IDADA's
stated
position
under
oath,
that
the
evidence
given
by Du
Plessis at the 415
insolvency
inquiry
is not
disputed,
inherently
undermines its, (IDADA's), attempt to dispute
its
admissibility
in
these
proceedings.
[12]
The
transcripts
are
not hearsay
and
therefore
admissible as a matter of law.
18.
BEE
submits
that
the
rationale
behind
certain
authorities
[13]
,
("the
dissenting
authorities"),
having
refused
to
admit
evidence
into subsequent
civil
proceedings,
given
within the context
of an
insolvency
inquiry,
(specifically
insofar
as
BEE's
stated
second
purpose
is
concerned),
was the
following:
18.1
The general principle is that evidence given by
a witness in his/her
personal capacity at an insolvency inquiry, could only be admissible
at subsequent civil proceedings against
that person himself/herself.
This was in line with the common law rule against hearsay.
18.2
This general principle would similarly apply to
the scenario where an
agent makes admissions in an insolvency inquiry, which admissions are
then sought to be used against his
principal, in subsequent civil
proceedings. This is also in line with the common law rule against
hearsay.
19.
BEE submits
that
it
should
be
uncontroversial
that the
dissenting
authorities
do
not preclude it, (BEE), seeking to use the transcripts for its stated
first
purpose
and
therefore the real dispute regarding the admissibility of the
transcripts, should only concern its, (BEE), stated
second
purpose.
[14]
BEE
submits
further
that
the
evidence
given
by
Du
Plessis
at
the
415
inquiry,
does
not
fall
under
any secrecy
provisions
in terms of
the
Insolvency
Act,
and
the
use
of
such
evidence in
these
subsequent civil proceedings against IDADA, is subject to the
ordinary rules of evidence,
i.e.
relevance and hearsay.
[15]
20.
BEE submits that the facts
of this dispute confirm the following:
20.1
Du Plessis
is
the
sole
director
and
shareholder
of IDADA and therefore
the
only
individual
who
can
speak
on
behalf
of IDADA,
meaning
that
it
constitutes
IDADA's
controlling
mind.
[16]
20.2
Du Plessis signed the written sale agreement forming
the subject
matter of Claim 1 and authored the AOD forming the subject matter of
Claim 2 which serve before this court for determination.
20.3
The sole
purpose of the 415 insolvency inquiry held on the 18th of September
2009
and 23
October 2009
respectively,
was to question
Du
Plessis
qua
representative
of
IDADA,
regarding
IDADA's acquisition of Dotcom's liability towards
BEE.
[17]
21.
BEE submits
therefore
that
in
contradistinction
with the
facts
of
the
dissenting
authorities
in this
matter,
Du
Plessis is
the only
individual
who
can
speak
for
!DADA
and
he
has always
been
aware
that
his
evidence
given
at
the
415
insolvency
inquiry
on
the
18th
of
September
2009
and
the
23rd
of
October
2009,
was
on
behalf
of IDADA.
Therefore,
the
mischief
which
the
hearsay
rule
is aimed
at
preventing, the inability to
test
under
cross-examination
the
probative
value
of
the
statements
made
by
Du
Plessis
at
the
415
inquiry, is
not
present,
considering
that IDADA
is
able
to
cross
examine
Du
Plessis, (a
witness whom
!DADA
itself
seeks to call on its
behalf
regarding
the statements
and
admissions
made by him
at the
415
insolvency
inquiry.
In the
circumstances,
the
facts
of
this matter
can be distinguished from the
dissenting
authorities
,
which
in turn
negate
against
the
evidence
contained
in the
transcript
which is
regarded as
hearsay
.
[18]
Even if the court finds that the transcripts are
hearsay
in
respect
of
BEE's
stated
second
purpose;
it
is
admissible
under s 3
of the
Evidence
Amendment
Act.
22.
BEE
submits
that in
terms of
this
alternative argument, it
views that
the
transcripts
should be
admitted
under
s
3
of
the
Evidence
Amendment Act
[19]
,
either;
(i). provisionally in
terms of
s
3(1)(b)
read
with s 3(2)
or (ii).
finally in
terms of s
3(1)(c).
[20]
23.
It was submitted that the
factors which support the admission of the
transcripts for BEE's stated
second purpose
in terms of
s 3(1)(c) can be summarised as follows:
23.1.
The joint liquidators, to no fault of their own, come as
strangers to
the estate of BEE and are primarily reliant on documentary evidence
to prove its claim against IDADA (See: 3(1)(c)(i)].
23.2.
The evidence at the 415 inquiry was focussed solely on the
transaction between IDADA and Dotcom leading to IDADA acquiring
Dotcom's indebtedness towards BEE [See: 3(1
)(c)(ii)].
23.3.
The evidence is tendered for BEE's stated
first purpose
- to
potentially discredit Du Plessis as a witness, if required - and
BEE's stated
second purpose
- to prove the truth of
certain statements and admissions made by Du Plessis at the 415
inquiry [See: 3(1)(c)(iii)].
23.4.
The probative value of the evidence 1s substantial considering that
the transcript records IDADA's
only representative recounting its
transaction with Dotcom approximately 2 years thereafter - instead of
- witnesses giving evidence
at the prospective trial, approximately
12 years after the relevant transaction [See: 3(1)(c)(iv)].
23.5.
BEE
has
already
indicated
its
intention
to
call
Du
Plessis
as a
witness
under
a
subpoena
duces
tecum
for
purposes
of
introducing
his
evidence
given at
the
415
inquiry
and reflected
in
the
transcripts
[See:
3(1)(c)(v)].
[21]
23.6.
IDADA cannot be prejudiced considering it does not dispute the
contents of the transcripts
nor is it unable to cross examine Du
Plessis on the contents of the transcripts which may establish or
infer its indebtedness
to BEE
[
vide:
3(1)(c}(vi)] and
23.7.
Du Plessis is the controlling mind of IDADA and the main protagonist
in this dispute [See:
3(1 )(c)(vii)].
24.
BEE submits that this Court has one of three options insofar
the
admissibility of the 415 transcripts are concerned:
24.1.
Rule that the transcripts are not hearsay and therefore admissible
without further ado;
or
24.2.
Rule that the transcripts are hearsay insofar as BEE's stated
second
purpose
is concerned, however, admissible under s
3
of the Evidence Amendment Act either provisionally or finally; or
24.3.
Rule that the transcripts are hearsay - only insofar as BEE's
stated
second
purpose
is concerned - and also refuse
its admission under s 3 of the Evidence Amendment Act.
25.
The respondent submitted
that the aspect of costs depends on the
success or otherwise in the substantial matter. The applicant submits
that costs for this
application can only be recouped through an order
made herein. However, the applicant submits that because the
defendant admits
the anomaly, then costs should be ordered to be paid
at a punitive scale. It submits that the costs should have been
tendered from
the beginning. The court finds no course for costs to
be ordered to be paid at a punitive scale and it is inclined to order
costa
at an ordinary scale.
26.
BEE contends that it has
made its case for an order to be granted
which provides for the interlocutory aspects here in raised. On the
basis of all the facts
stated above, the court finds that the
applicant made its case for the order sought, save that if finds no
sufficient basis for
costs to be granted at a punitive scale. In the
result, the following order is granted.
ORDER
26.1
The defendant's rule 30 application is dismissed with costs.
26.2
The papers filed of record in the motion proceedings preceding this
trial action
under case number 5654/11 and reflected on pages 116-245
of the plaintiff s essential documents bundle order to be
admissible
for purposes of the trial hearing without qualification.
26.3
The section 415 transcript reflected on pages 25-78 and 82- 109 of
the plaintiff
s essential documents bundle is declared to be
admissible without qualification for purposes of the trial hearing.
26.4
It is ordered that the costs of this interlocutory hearing is to be
paid by
the defendant.
T.A.
Maumela.
Judge
of the High Court of South Africa.
[1]
To this end, the reason why the application is brought on affidavit,
in the first place, is that it allows a litigant to detail
in
the
founding affidavit the procedural prejudice which the complaining
litigant has
or will
suffer if the complaint is not removed or set aside.
[2]
Hart v
Pinetown Drive-In
Cinema
(Pty) Ltd
1972
(1) SA 464
(D). See also
Director
of Hospital
Services
v
Mistry
1979
(1) SA 626
(A) at p
635H-636A.
[3]
1986 (4) SA 424 (W).
[4]
Read with
SA
Metropolitan Lewensversekeringsmaatskappy
BK
v Lauw N.O.
1981
(4) SA 329
(0) at 333G-H
and 334.
[5]
Afrisun
Mpumafanga (Ply) Ltd
v
Kunene
N.
0.
and
Others
1999
(2) SA 599
(T) at 611
B-F.
[6]
1981
(4)
SA 329
(0).
[7]
See
Herbstein
and
Van
Winsen,
The
Civil
Practice
of the
Superior
Courts
in SA
(3''
ed),
at
386
and in
particular the
decisions
cited
therein.
[8]
1926
AD
467
at 488.
[9]
R v
Mathews
1960
(1) SA
752
(A) at 758 and
Ex
part
Rosch
[1]
All
SA
319
(W)
at 227
[10]
Act Number 45 of 1988
[11]
Para 23
of
IDADA's
answering
affidavit
[12]
What
it
does showcase
is that
the
proffered
evidence
given
by Du
Plessis and
reflected
in the
transcripts
of the 415
insolvency
inquiry
is damning
for
!DADA
insofar as its indebtedness
towards
BEE is concerned.
[13]
Simmons
NO
v
Gilbert Hamer
&
Co Ltd
1962
(2)
SA
487
(D);
Du
Plessis
NO
v
Oosthuizen;
Du
Plessis NO
v
Van
Zyl
1995
(3)
SA
604
(O);
O'Shea
NO
v
Van
Zyl
NO
&
Others
[2011]
ZA
(SCA)
156;
Rhodesian
Corporation
Ltd
v
Globe and
Phoenix
Gold
Mining
Co
Lid
1934
AD
293
at 304.
[14]
On this score BEE relies on the dicta in
Gordian!
Trading CC v Daimler Chrysler Financial Services
(Ply)
Ltd
2005
(4) SA 389
(D) at 397
[15]
On this
score
BEE relies
on the dicta in
Van
Zyl
and
Another
N.N.
0.
v
K N.
0.
and
Another
2014(4)
SA
452 (WCC)
at
[41]
-
[44].
[16]
Para
1
of
IDADA's
answering
affidavit.
pp 33 of
415
transcript
marked
"Item
2.14".
[17]
See BEE's witness statements filed of record. See also the line of
questioning in the transcripts marked "Item 2.14"
and
"Item 2.16".
[18]
This
matter
constitutes
an
exception
to
the
rule
stated
in
Yorkshire
Insurance
Co
Ltd
v
Standard Bank
of
SA Ltd
1928
WLD
223
at 225-6
[19]
Supra
[20]
On this score,
BEE relies
on the judgment
in
/CM
Clearing
and
Forwarding
Pty
Ltd and Another
v
Croninent
Chrome
SA
Pty Ltd
[2017]
ZAGPJHC
245
(12 June
2017).
[21]
It is noteworthy
that
IDADA
could
only
ever
be
represented
by Du
Plessis. Therefore,
Du Plessis
is the
only
individual
who
could
instruct
IDADA's
attorneys
of
record.
Despite
this,
IDADA's
attorneys of
record
recalcitrantly
refuse to
facilitate the
service
of
a subpoena
duces
tecum
for
Du
Plessis, who
is to give
evidence
on
behalf of
IDADA in
any
event,
through
their
offices.