About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 396
|
|
L.M.G v D.J.M (22730/2017) [2021] ZAGPPHC 396; 2021 (5) SA 607 (GP) (15 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number
:
22730/2017
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
DATE:
15-06- 2021
In
the matter between:
L
M[…]
[G…]
EXCIPIENT/DEFENDANT
and
D
J
M[…]
RESPONDENT/PLAINTIFF
JUDGMENT
KUBUSHI
J
Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by e-mail.
The date and
time for hand-down is deemed to be 10h00 on 15 June
2021.
INTRODUCTION
[1]
The crux in this matter is whether a curator
bonis
has the
locus standi
to institute divorce proceedings on behalf of an
incapacitated person whose financial affairs and assets she/he has
been appointed
to manage; and if so, whether in terms of the court
order granting the curator
bonis
the power to institute such
proceedings, the curator
bonis
should have obtained the
approval of the Master of the High Court (“the Master”)
before instituting the proceedings.
[2]
The application was heard virtually, and not in open court, as
provided for in this
Division’s Consolidated Directives re
Court Operations during the National State of Disaster issued by the
Judge President
on 18 September 2020.
FACTUAL
MATRIX
[3]
The matter comes before me in the form of an exception. The
respondent/plaintiff,
D J M[…], in his
capacity
as
curator bonis
to
W F
M[…] (“the patient”),
has instituted
divorce proceedings against the excipient/defendant,
L M[…] nee G[…]
, who is the wife of the patient.
[4]
The excipient/defendant has in turn excepted to
the
respondent/plaintiff’s amended particulars of claim on the
ground that they lack the averments necessary to sustain a
cause of
action and are, bad in law in that:
4.1
the respondent/plaintiff lacks the necessary
locus standi
to
institute the divorce proceedings on behalf of the patient, owing to
the nature of the proceedings being too personal in nature;
4.2
the order which purportedly appointed the respondent/plaintiff as the
patient's
curator bonis
has not been complied with as no
averment is made in the amended particulars of claim that the
respondent/plaintiff obtained the
necessary approval from the Master
to institute his action.
[5]
The respondent/plaintiff submits, on the other hand, that the
excipient/defendant’s
exception is irregular, baseless, and
contrary to the prevailing Court Order as well as legislation in that
when properly interpreted the Court Order firstly, grants the
curator bonis
the power to institute action on behalf of the
patient even those actions that are patrimonial in nature; secondly,
the
curator bonis
does not require the curator to seek the
approval of the Master before instituting such proceedings.
THE
RESPONDENT/PLAINTIFF’S CLAIMS
[6]
In his amended particulars of claim the respondent/plaintiff, pleads
three separate
and alternative claims against the
excipient/defendant, namely:
6.1
Claim 1 in terms of which the
respondent/plaintiff seeks:
6.1.1
a decree of divorce of the marriage between the patient and the
excipient/defendant, as well as, for the patient's
unspecified
contact of the minor child born of the marriage ("the minor
child");
6.1.2
the rendering of accounts and the debatement thereof;
6.1.3
division of the excipient/defendant's and the patient's estates
pursuant the ante-nuptial contract (out of community
of property with
accrual).
6.1.4
maintenance for the patient.
6.2
Claim 2 in terms of which the respondent/plaintiff seeks
6.2.1
an order for unspecified contact of the minor child and immediate
division of the excipient/defendant's and the
patient' estates;
6.2.2
the replacement of the matrimonial property system between the
patient and the excipient/defendant with that of
one being in
community of property;
6.2.3
the rendering of statements and the debatement thereof;
6.2.4
forfeiture of benefits;
6.2.5
division of the estates as
per
the ante-nuptial contract.
6.3
Claim 3 in terms of which the respondent/plaintiff seeks:
6.3.1
an order for unspecified contact of the minor child;
6.3.2
an order compelling the excipient/defendant to contribute to the
patient's maintenance in the sum of R 30 000.00
per
month.
THE
ISSUES FOR DETERMINATION
[7]
The grounds raised in the exception present substantive questions of
law which may
have the effect of settling the dispute between the
parties. It is a settled rule of law that where an exception is taken
for the
purpose of raising a substantive question of law which may
have an effect of settling the dispute between the parties, an
excipient
should make out a very clear, strong case before he or she
is allowed to succeed.
[1]
[8]
In the main, the issues that require determination is –
8.1
Whether the respondent/plaintiff has
locus standi
to act on
behalf of the patient in these proceedings, and if so
8.2
Whether before instituting these proceeding the approval of the
Master was required.
[9]
I deal hereunder with the issues, in turn.
Lack
of
Locus Standi
[10]
It is the excipient/ defendant’s submission that the
respondent/plaintiff lacks the necessary
locus
standi
to institute proceedings against the defendant which are of a
matrimonial nature as such proceedings are too personal to the
patient.
In support of this argument the excipient/defendant referred
to the decisions in two cases, namely,
Ex
Parte AB
[2]
and
Spangenberg
NO and Another v De Waal
.
[3]
The
issue for determination
[11]
The question is whether a
curator bonis
has
locus standi
to institute divorce proceedings on behalf of the incapacitated
person whose financial affairs and assets she/he has been appointed
to manage.
Discussion
[12]
Our common law position has always been that a
curator
bonis
,
being no more than a superintending guardian who looks after the
patient’s property, has no capacity to institute divorce
proceedings on behalf of the patient.
This
has been the position since
Voet
,
[4]
who stated the common law to be as follows
"Husband's
curator has no power over wife or children — However that may
be, it has been remarked in the same passage
above that the wife or
children of one who is a madman or a prodigal are certainly not
subject to the power of a curator assigned
to the mad or prodigal
husband or father."
[13]
The position is confirmed in LAWSA,
[5]
where it is stated that certain acts considered to be of too personal
a nature cannot be performed by a curator. A curator, for
example, is
said to have no
locus
standi
to institute an action for divorce on behalf of an insane person.
[14]
The common law position was applied with approval in
Ex parte AB
,
and confirmed with approval, in
Spangenberg and Another v De Waal
.
[15]
In
Ex
parte AB,
the court rejected the argument of a
curator
bonis
that he could not administer the patient’s property properly if
he were compelled to pay maintenance to a spouse guilty of
adultery.
When rejecting the
curator
bonis’
argument,
the court applied the common law espoused in
Voet
above, and held that since the marriage tie is an intensely personal
relationship with which no outsider has any right to interfere,
it is
the question for the husband alone to say whether the marriage should
or should not be broken, and no curator can determine
this for
him.”
[6]
[16]
In that case, the applicant had been appointed as curator of a
so-called lunatic by virtue of
section 42 of Proclamation 36 of 1902.
The lunatic, who possessed considerable property, was married in
community of property.
It appeared that since the lunacy of the
husband, the wife had committed adultery and was pregnant as a result
of the adultery.
An application was made for an order authorising the
applicant (the curator) to institute action against the wife for
divorce and
for an order declaring her to have forfeited all benefits
derived from the marriage in community of property. According to the
argument of the applicant in that matter he, the curator, could not
properly administer the estate of the lunatic if he were compelled
to
pay the lunatic’s money in order to maintain a spouse guilty of
adultery.
[17]
In dismissing the curator's application, the court held, amongst
others, that -
“
The
curator of a lunatic does not completely represent the lunatic in our
law, for where the relationship was of a peculiarly personal
nature
he ceased to have any power. He had no authority over the wife or the
children of the lunatic (Voet, 27, 10, 10). The curator’s
interference in the home of the wife and children is confined
entirely to the property of the lunatic husband.
It
appears to me that it is a question for the husband alone to say
whether the marriage tie should or should not be broken, and
no
curator can determine this for him. Just as our law regards it
inexpedient to allow the curator to interfere in the relationship
of
the lunatic’s wife towards her children, so in my opinion it
regards it as intolerable that a curator should come between
husband
and wife in order to determine whether the relationship should cease
or not. It is a significant fact that no single Roman
Dutch authority
that I have come across suggests that such a power exists... the
marriage tie appears to me to be recognised by
our Law as an
intensely personal relationship with which no outsider has any right
to interfere.”
[18]
In
Spangenberg
, the court had to consider whether the
abolition of fault as a requirement for a divorce in terms of the
Divorce Act and the introduction
of the requirement of prove of the
irretrievable breakdown of a marriage, justified a deviation
from the common law as stated
in
ex parte AB
. The court
refused to deviate from the common law as it then existed and stated
that even though marriage is now much more secular
in nature and
divorce more prevalent and more socially acceptable, 'the deep
personal nature of marriage has not changed'. The
court held that
there was no reason to deviate from
ex parte AB
given that,
more often than not, evidence of the irretrievable breakdown of a
marriage was emotional rather than factual in nature.
The court
stated further that, when a spouse states that his or her marriage
has irretrievably broken down, he or she is making
a statement of the
heart rather than a statement of fact; and that, while there are
facts such as adultery and violence which can
be proved as evidence
demonstrating the irretrievable breakdown of a marriage, it is
very difficult for an outsider, such
as the curator, to prove that an
individual no longer loves or respects his or her spouse. It is,
therefore, not possible for an
outsider to be able to gauge whether a
spouse is prepared to forgive his marriage partner despite whatever
offence his or her partner
has committed against him. What appears to
be unforgivable for one person, the court found, is tolerable for
another, given his
particular personal circumstances and given that
the fabric that keeps a marriage from breaking down is indeed unique
to every
marriage. Therefore, given the intimate nature of marriage
and divorce, only the parties to the marriage can institute divorce
proceedings against one another as only they would be privy to the
intimate details of their marriage warranting the initiation
of such
proceedings.
[19]
The respondent/plaintiff, whilst conceding that the common law
provides that the institution
of matrimonial proceedings by a curator
on behalf of a patient of unsound mind should not normally be
allowed, argued for the development
of the common law in accordance
with the Bill of Rights. The contention being that the Court Order
authorising and empowering the
respondent/plaintiff to
inter alia
"institute...any legal proceedings on behalf of the patient
whether matrimonial of nature or otherwise..." was in compliance
with section 173 of the Constitution, in that, the Court Order
granted, developed the common law in accordance with the interests
of
justice.
[20]
Section 173 of the Constitution provides that the Constitutional
Court, Supreme Court of Appeal
and the High Courts have the inherent
power to protect and regulate their own processes, and to develop the
common law, taking
into account the interest of justice.
[21]
What ought to be determined is whether it would be in the interest of
justice to authorise and
empower a curator to institute legal
proceedings of a matrimonial nature on behalf on an incapacitated
person.
[22]
In Spangenberg, the court concluded that given the intimate nature of
the marriage and divorce,
only the parties involved would be privy to
the intimate details of their marriage warranting the initiation of
such proceedings
and that outsiders, like a curator, would not be
able to prove such intimacy.
[23]
The question that comes to mind is what about the incapacitated
persons who are unable to take
decisions on their own. For example,
in the matter
in casu
the patient suffered a stroke and was subsequent thereto diagnosed
with dementia from which he is not going to recover. Can it
be said
that such a person will be able to consider the pros and cons of
whether or not to stay in marriage with his wife or divorce
her. It
is obvious that in such circumstances the
incapacitated person
or patient will not be able to decide whether he has lost all love
and affection for the wife because of his
condition.
[24]
In my view, it would be in the interest of justice to develop the
common law to allow for exception
to the general in circumstances
like those prevailing in the current matter. The court exercising its
inherent power should authorise
and empower a curator to institute
legal proceedings of a matrimonial nature on behalf of an
incapacitated person who is unable
to make a decision as to whether
she/he should remain in the marriage or not.
[25]
In such circumstances, the court must allow some other evidence such
as adultery and violence
which can be proved as evidence
demonstrating the irretrievable breakdown of the marriage. For
example, in this instance,
the patient was
admitted as a live-in patient at Alzheimer and Dementia Care Centre
in Boschkop, Pretoria, Gauteng during January
2013 where he is to
date hereof still resident. It is thus evident that the patient and
the defendant will never stay together
as husband and wife. A normal
marriage relationship does not exist, nor will same ever exist owing
to the fact that the patient's
condition is not one from which he can
recover; and that there are no reasonable prospects for the
restoration of a normal marriage
relationship, which might be a
reasonable inference.
[26]
Even if I am wrong in my above findings, the further argument by the
respondent/plaintiff that
the Court Order that authorises him to
institute the said proceedings on behalf of the patient for as long
as it has not been set
aside should be obeyed, puts this ground of
exception to bed.
[27]
The respondent/plaintiff’s argument is that even though in
terms of our law, he may not
have the capacity to institute divorce
proceedings on behalf of the patient, in this instance, he has been
authorised to do so
by an order of court.
[28]
It was argued on behalf of the excipient/defendant that the order of
court in question, does
not validate the institution of matrimonial
action, meaning that the Court Order does not authorise the curator
to do that which
is against the law. Put differently, the contention
is that the court order can never legitimise the institution of
proceedings
which are bad in law.
[29]
The excipient/defendant’s argument was contradicted by the
respondent/plaintiff in contending
that an order of court, even when
invalid, must be obeyed until set aside by a court of law.
The
submission being that to date, the court order, in this instance, has
not been set aside, varied or rescinded and as such it
supersedes the
excipient/defendant's contentions until varied or set aside.
[30]
In support of his argument, the respondent/plaintiff referred to the
judgments in
Culverwell
v Beira
,
[7]
wherein the court enunciated that:
"All
orders of this Court, whether correctly or incorrectly granted, have
to be obeyed until they are properly set aside."
[31]
And, in
Samancor
Manganese (Pty) Ltd v Azam Fabrication CC
,
[8]
where the above principle was confirmed as follows:
"As
the Court held in
Bezuidenhout v Patensie Sitrus Beherend Bpk
:
A court order stands and must be strictly obeyed until set aside by a
higher court, and the same court which granted the original
order
does not have the right to nullify its effect or interfere with that
order except in very limited circumstances in the context
of
variation"
[32]
It is trite that an invalid order must be obeyed until set aside by a
court of law. The Constitutional
Court in
Merafong
,
[9]
when confirming that principle as was enunciated in
Oudekraal
[10]
and
Kirkland
,
[11]
expressed itself as follows:
“
[41]
The import of
Oudekraal
and
Kirkland
was
that government cannot simply ignore an apparently binding ruling or
decision on the basis that it is invalid. The
validity of the
decision has to be tested in appropriate proceedings. And the
sole power to pronounce that the decision is
defective, and therefore
invalid, lies with the courts. Government itself has no
authority to invalidate or ignore the decision.
It remains
legally effective until properly set aside.
[42]
The underlying principles are that the courts’ role in
determining legality is pre-eminent and
exclusive; government
officials, or anyone else for that matter, may not usurp that role by
themselves pronouncing on whether decisions
are unlawful, and then
ignoring them; and, unless set aside, a decision erroneously taken
may well continue to have lawful consequences.
Mogoeng CJ
explained this forcefully, referring to
Kirkland
,
in
Economic
Freedom Fighters
.
[12]
He
pointed out that our constitutional order hinges on the rule of law:
“
No
decision grounded [in] the Constitution or law may be disregarded
without recourse to a court of law. To do otherwise would
‘amount to a licence to self-help’. Whether the
Public Protector’s decisions amount to administrative action
or
not, the disregard for remedial action by those adversely affected by
it, amounts to taking the law into their own hands and
is illegal.
No binding and constitutionally or statutorily sourced decision may
be disregarded willy-nilly. It has
legal consequences and must
be complied with or acted upon. To achieve the opposite outcome
lawfully, an order of court would
have to be obtained.”
[33]
This has further been confirmed by the Constitutional Court in the
matter of
Department
of Transport and Others v Tasima (Pty) Ltd,
[13]
wherein
it was provided that:
"Only
an order of constitutional invalidity requires confirmation by the
Constitutional Court to take force. The general rule
is that orders
that do not concern constitutional invalidity do have force from the
moment they are issued. And in light of s 165
(5) of the Constitution
the order is binding irrespective of whether or not it is valid until
set aside."
[34]
In this instance, the salient provisions of the Court Order in issue
read as follows:
“
1.
1.11
To apply any money for or towards the maintenance of or
the benefit of the patient;
1.12
To incur expenditure in respect of the improvement of
any property of the Patient by means of building, repairs
or
otherwise:
1.13.
To expend any monies belonging to the patient on the
maintenance of any other person wholly or partially dependent
on him;
I.14
To invest or re-invest any monies which
become available to the patient from time to time for investment
and
which are not immediately required for the purpose of supporting the
patient;
1.15
To institute and or to defend any legal proceedings on
behalf of the patient whether matrimonial of nature or
otherwise and
to appoint counsel and or attorneys and or experts for this purpose
and to do all such things and to sign all affidavits
in connection
with same as if the patient acted himself
2.
The powers conferred upon the
said curator bonis in sub Paragraph 1.11 to 1.15 shall be
exercised
subject to the approval of the Master.
3.
The cost of this application as between attorney and client including
the costs
of the application for the appointment and the fees of the
curator ad litem appointed to represent the patient; shall be paid
out
of the patient's estate.
4.
The curator bonis is exempted from providing security to the Master
as provided
for in Section 77(1) of the Administration of Estates Act
66 of 1966.”
[35]
It is manifest from the provisions of paragraph 1.15 that the order
authorises the curator to
institute proceedings that are matrimonial
in nature or any other proceedings.
[36]
On the basis of the decision in
Merafong
and the other cases
quoted by the respondent/plaintiff above, I have to rule that the
court order in question, even if it is invalid,
should stand until
set aside by a court of law. It follows that for as long as the court
order has not been rescinded, it is binding
and it authorises the
respondent/plaintiff to institute the divorce proceedings.
[37]
I hold, as a result, that the ground of exception falls to be
dismissed.
Failure
to Obtain Approval of the Master
[38]
The excipient/defendant’s proposition in
this regard is that the respondent/plaintiff has failed to comply
with the order
which purportedly entitled him to institute
proceedings against the excipient/defendant in that, he has failed to
obtain prior
approval from the Master to institute any proceedings
against the excipient/defendant. To this end, the excipient/defendant
argues
that, it is manifest that the respondent/plaintiff’s
amended particulars of claim lack the necessary averments to sustain
any cause of action.
[39]
The respondent/plaintiff’s contrary view is that the Master
cannot overrule a court order
that has authorised him to institute
proceedings on behalf of the patient. The contention is that the word
‘subject’
in paragraph 2 of the Court Order is not to be
read to mean approval and, as such, the Master’s approval is
not a prerequisite.
The word only means for the
curator bonis
to report to the Master as administrative authority in order to
overseer the process.
The
Issue for Determination
[40]
The question, therefore, is whether the Court Order requires the
approval of the Master to be
obtained pre or post
facto
.
Discussion
[41]
In summation, the dispute in this regard as is evident from the
excipient/defendant’s argument
is that in terms of the order of
the court the respondent/plaintiff should have obtained the approval
of the Master before he can
institute the proceedings. Whereas, it is
the respondent/plaintiff’s contention that the court order
authorises him to institute
action and, thereafter, to report to the
Master what he has done.
[42]
In terms of paragraph 1.15 of the Court Order dated 29 June 2016, the
respondent/plaintiff is
specifically authorised:
"To
institute and or to defend any legal proceedings on behalf of the
Patient whether matrimonial of nature or otherwise and
to appoint
counsel end/or attorneys and or experts for his (sic) purpose and to
do all such things and to sign all affidavits in
connection with same
as if the Patient acted himself."
[43]
The said paragraph must be read in conjunction with paragraph 2 of
the Court Order which stipulates
that:
"The
powers conferred upon the said
curator bonis
in sub Paragraph
1.1to 1.16 shall be exercised subject to the approval of the Master."
[44]
When interpreting the Court Order or the provisions of the Court
Order that are in contention,
it is worthy to take note of the
decision of the Supreme Court of Appeal in
Firestone
South Africa (Pty) Ltd v Genticuro
,
[14]
where it was held that"':
"First,
some general observations about the relevant rules of interpreting a
court's judgment or order. The basic principles
applicable to
construing documents also apply to the construction of a court's
judgment or order: the court's intention is to be
ascertained
primarily from the language of the judgment or order as construed
according to the usual, well-known rules. See
Garlick v Smartt and
Another
,
1928 AD 82
at p. 87;
West Rand Estates Ltd. v New
Zealand Insurance Co. Ltd.
,
1926 AD 173
at p. 188. Thus, as in
the case of a document, the judgment or order and the court's reasons
for giving it must be read as a whole
in order to ascertain its
intention. If, on such a reading, the meaning of the judgment or
order is clear and unambiguous, no extrinsic
fact or evidence is
admissible to contradict, vary, qualify, or supplement it".
[45]
And, as further confirmed in
Endumeni
,
[15]
where the Supreme Court of Appeal set out the principles concerning
interpretation which entails
inter
alia
having regard to the "ordinary rules of grammar and syntax; the
context in which the provision appears; the apparent purpose
to which
it is directed and the material known to those responsible for its
production".
[46]
In considering the abovementioned judgments, the court order appears
to me clear and unambiguous.
The powers in paragraphs 1.1 to 1.5 when
read with paragraph 2 of the Court Order are subject to the approval
of the Master. Paragraph
2 clearly puts a condition that the
respondent/plaintiff must fulfil before instituting the proceedings,
that is, the Master must
approve the institution of any of the legal
proceeding contained in paragraph 1.15 of the Court Order. The
approval is to be procured
at the outset and not after the
proceedings have been instituted, as the respondent/plaintiff wants
to argue. The meaning of the
phrase ‘subject to’ is clear
and requires no extrinsic evidence to interpret it. It simply
means that the institution
of legal proceeding is conditional upon
the approval by the Master. The wording of paragraph 2 read with
sub-paragraph 1.15 is
clearly conditional upon the approval of the
Master before instituting action.
[47]
Even if the claims the respondent/plaintiff contends are not
matrimonial in nature but patrimonial,
and ought to be entertained,
were competent by a
curator bonis
, the respondent/plaintiff
still lacks the necessary approval by the Master to institute such
proceedings in accordance with the
Court Order. As such, all the
claims, in that regard, remain excepiable.
[48]
The court that granted that order appears to have been aware that the
powers granted to the
curator bonis,
in this instance, were
not powers that would naturally have been granted in terms of Uniform
Rule 57, hence the court saw it fit
that the institution of the legal
proceedings be made subject to the Master’s approval.
[49]
I have to conclude, therefore, that the absence of the allegation of
this essential element,
that is, the allegation that the Master’s
written approval has been obtained, renders the particulars of claim
excepiable.
CONCLUSION
[50]
Normally the rules require that the respondent/plaintiff be given an
opportunity to amend the
particulars of claim but in this instance,
the excipient/defendants submits that under the circumstances of this
case it would
be a futile exercise to grant the respondent/plaintiff
leave to amend his particulars of claim as he would require the
approval
of the Master or the Master to rectify the
curator
bonis’
actions.
Apparently the said rectification has been sought and refused. This
argument by the excipient/defendant has not been controverted
by the
respondent/plaintiff. In that sense I am also of the view that it
will take the matter no further to grant leave to amend
the
particulars of claim. There appears to be no indication that the
Master will rectify the action already taken by the
respondent/plaintiff.
As such the exception ought to be upheld and
the respondent/plaintiff’s claim be dismissed.
COSTS
[51]
As regards costs, the excipient/defendant argues that as the claim
specified the amended particulars
of claim are bad in law and have
not been authorised by the Master (and will not be ratified by the
Master), the patient's estate
ought not to be mulcted with the costs
of the exception and/or the costs associated with the dismissal of
the claims. The plaintiff
ought to be ordered to pay such costs
de
bonis propriis
for the institution of such reckless and
unauthorised proceedings against the defendant.
[52]
Nevertheless, the respondent/plaintiff has been partly successful in
the matter as the first
part of the exception has been found in his
favour. Ordinarily in such circumstances, the costs would be shared
between the two
parties. What is a challenge in this matter is that
the costs must be covered by the estate of both parties. I intend
therefore
not to make any order as to costs.
ORDER
[53]
I, in the circumstances, make the following order:
1.
The exception is upheld.
2.
The respondent/plaintiff’s claim is dismissed.
3.
No cost order is made.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance
:
Excipient/Defendant’s
Counsel
:
ADV
D BLOCK
Excipient/Defendant’s
Attorneys
: STRAUSS
DALY INC
Respondent/Plaintiff’s
Counsel
:
ADV. RIANI FERREIRA
Respondent/Plaintiff’s
Attorneys
:
LOOTS BASSON ATTORNEYS
INC.
Date
of hearing
: 22 April 2021
Date
of judgment
: 15 June 2021
[1]
See Letivan v Newhaven Hiliday Enterprises CC
1991 (2) Sa 297
at
298B – C.
[2]
1910
TPD 1332.
[3]
[2007] ZAGPHC 233
;
[2008]
1 All SA 162
(T].
[4]
(27.10.10).
[5]
Cronje’ and Carnelley ‘Persons” LAWSA 2ed (Lexis
Nexis Durban 2009) Vol 20 (1) (1984) at 487.
[6]
at 1340.
[7]
1992
(4) SA 490
(W) at p494.
[8]
2019
JDR 0972 (GP) para 20.
[9]
Merafong City Local Municipality v AngloGold Ashanti Limited 2017
(2) SA 211 (CC).
[10]
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[2004]
ZASCA 48
;
2004
(6) SA 222
(SCA).
[11]
MEC
for Health, Eastern Cape v Kirkland Investments (Pty) Ltd
2014
(3) SA 481
(CC
).
[12]
Economic
Freedom Fighters v Speaker of the National Assembly; Democratic
Alliance v Speaker of the
National
Assembly
2016
(3) SA 580
(CC)
para 74.
[13]
2017
(2) SA 622
(CC) para 180.
[14]
1977 (4) SA 298
(A) at 304D – G.
[15]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA).