Mia v Verimark Holdings (Pty) Ltd (522/08) [2009] ZASCA 99; [2010] 1 All SA 280 (SCA) (18 September 2009)

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[2009] ZASCA 99
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Mia v Verimark Holdings (Pty) Ltd (522/08) [2009] ZASCA 99; [2010] 1 All SA 280 (SCA) (18 September 2009)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case no: 522/08
In the matter between:
SAYED HOOSEN MIA
A
ppellant
and
VERIMARK HOLDINGS (PTY) LTD
Respondent
Neutral citation:
Mia v
Verimark Holdings (Pty) Ltd
(522/08)
[2009]
ZASCA 99
(18 September 2009)
Coram:
STREICHER,
MLAMBO and SNYDERS JJA and GRIESEL and WALLIS AJJA
Heard
:
24
August 2009
Delivered
:
18
September 2009
Summary: Damages – Non-fulfilment of suspensive
condition in written agreement – Whether the respondent has proved
a claim for
damages as contemplated in the agreement.
ORDER
On appeal from:
Johannesburg
High Court (Moshidi J sitting as court of first instance).
The following order is made:
The appeal is upheld with costs such costs to include
those consequent upon the employment of two counsel.
The order of the court
a quo
is altered to read as follows;
‘
(a) On claim 1 judgment is granted in favour of the
plaintiff for R13 160 together with interest thereon at the rate of
15,5% per
annum from date of demand, being 24 February 2003, to date
of payment.
(b) Claim 2 is dismissed.
(c) The defendant is to pay the plaintiff’s costs of
suit on the appropriate magistrates’ court scale from the
commencement
of the action until the end of the first day of the
trial, such costs to exclude the costs of making discovery and the
costs attendant
upon the preparation and copying of the trial bundle.
(d) The plaintiff is to pay the defendant’s costs,
including the costs of two counsel, from the second day of the trial
until
the completion of proceedings, as well as the costs excluded in
paragraph (c).’
JUDGMENT
WALLIS
AJA (STREICHER, MLAMBO and SNYDERS JJA and GRIESEL AJA concurring).
[1] Suspensive conditions are commonly encountered in
contracts for the sale of immovable property. Their legal effect is
well settled.
The conclusion of a contract subject to a suspensive
condition creates ‘a very real and definite contractual
relationship’
between the parties.
1
Pending fulfilment of the suspensive condition the exigible content
of the contract is suspended.
2
On fulfilment of the condition the contract becomes of full force and
effect and enforceable by the parties in accordance with
its terms.
No action lies to compel a party to fulfil a suspensive condition. If
it is not fulfilled the contract falls away and
no claim for damages
flows from its failure.
3
In the absence of a stipulation to the contrary in the contract
itself, the only exception to that is where the one party has
designedly prevented the fulfilment of the condition. In that event,
unless the circumstances show an absence of
dolus
on the part of that party, the condition will be deemed to be
fulfilled as against that party and a claim for damages for breach
of
the contract is possible.
4
[2] In the present case the parties entered into a
contract on 2 July 2002 in terms of which the appellant, Mr Mia,
purchased from
the respondent, Verimark Holdings (Pty) Ltd, an
immovable property situated in Sandton on which Verimark’s office
premises were
situated. The purchase price was R13,5 million payable
against transfer and had to be secured by the provision of a
suitable, unconditional
and irrevocable guarantee within seven days
of the conclusion of the agreement. The contract contained a
suspensive condition making
it subject to the guarantee being
obtained within seven days failing which it would be deemed to be of
no force and effect. It
is common cause that the guarantee was not
furnished by 10 July 2002 and that as a result the agreement fell
away. Verimark does
not allege that Mia brought about the failure of
the suspensive condition by any default on his part so no question of
fictional
fulfilment arises. Nonetheless Verimark successfully sued
Mia for damages in the amounts of R13 160 and R2 248 964.49 in the
Johannesburg
High Court. Leave to appeal having been refused by the
trial court but granted by this Court, Mia now appeals against that
judgment.
[3] The foundation for Verimark’s claim is found in
the terms of the suspensive condition. The material parts of the
clause read
as follows:
‘7.1 The
operation of the whole of this Agreement (except for the obligation
of the Purchaser to timeously obtain fulfilment of
the suspensive
condition) is suspended pending the presentation of the guarantee, as
contemplated in 3.2, by no later than 7 days
after the effective
date.
7.2 ...
7.3 In the event that the suspensive condition is not timeously
fulfilled ... this Agreement shall from the date referred to in
7.1
... be deemed to be of no force or effect provided that the Purchaser
shall be liable to the Seller for the costs incurred
by the Seller in
respect of the drafting, negotiation and signature of this Agreement
and any other damages suffered by the Seller
as a result of such
non-fulfilment.’
In terms of the particulars of claim Verimark’s claims
were brought under clause 7.3 as claims in terms of the contractual
undertaking
contained in the proviso to that clause. Therefore the
claims were couched as contractual claims, not conventional claims
for damages
arising from a breach of contract. The first claim is for
the costs amounting to R13 160 in respect of the drafting,
negotiating
and signature of the agreement. That claim is now
conceded and we are told has been paid together with interest. Its
only relevance
for present purposes is therefore in relation to the
costs incurred in pursuing the claim. The appeal concerns the merits
of the
second claim. The nature of that claim and the circumstances
giving rise thereto require some explanation.
[4] As mentioned, Verimark’s offices were situated in
the building standing on the property that was the subject of the
sale.
In addition to that property it leased warehouse premises in
Midrand where it stored the goods that are its stock in trade. At the

time its financial position was not entirely satisfactory and it
decided to consolidate the office and warehouse in new premises
as a
measure to save costs and improve its financial circumstances. The
lease of the warehouse was nearing an end and so the office
property
was placed on the market, it being the intention once it had been
sold to terminate the warehouse lease and move to new
consolidated
premises. Verimark claimed that if Mia had provided the guarantee as
contemplated within the seven day period stipulated
in the agreement
it would have been able to pass transfer of the office property by no
later than 31 October 2002 and would have
been able to relocate to
new premises on 1 November 2002. Instead, so it alleged, it was only
able to secure new premises in terms
of a lease concluded on 20
October 2002 under which new premises were to be constructed for it.
This lease provided for the warehouse
portion of the new premises to
be available by 1 May 2003 and the balance on a later date by
arrangement with Verimark. That eventually
turned out to be 1 October
2003, the office property having been sold by public auction in June
2003.
[5] Verimark’s second claim is for the additional
costs that it incurred between 1 November 2002 and 1 May 2003 in the
case of
the warehouse, and between 1 November 2002 and 1 October 2003
in the case of the office premises, in consequence of its inability

to move from its old warehouse and office premises to the proposed
new premises. It claims these costs under the following headings:
R1 525 646.66 being the interest on its bond over the
office premises during the relevant period;
R199 320.20 being the costs of providing security at
its office premises from 1 November 2002 to 30 September 2003;
R253 080.76 being the rates and taxes paid in respect
of the office premises from 1 November 2002 to 30 September 2003;
R114 894.18 being the cost of maintenance for the
office premises in the form of building repairs, plumbing, cleaning
and sanitation,
pest control and garden services from 1 November
2002 to 30 September 2003;
R13 485.26 being insurance for the office building
from 1 November 2002 to 30 September 2003;
R1 017 409.75 being rental in respect of the warehouse
from 1 December 2002 to 30 April 2003;
R167 622.76 being additional rates and taxes in
respect of the warehouse for the same period.
R90 406.14 being the cost of advertising the immovable
property for sale.
In calculating its claim for damages Verimark gives
credit for an amount of R1 132 901.22 as the rental it calculates it
saved as
a result of not moving premises earlier. Making this
allowance gives the figure of R2 248 964.49 for which the court
below
held Mia to be liable to compensate Verimark.
[6] In its pleadings Verimark based its claim for
damages solely on the provisions of clause 7.3 of the agreement and
not on any
alleged breach of contract. The relevant paragraphs in the
particulars of claim dealing with the terms of the contract read as
follows:
‘4.7 The provision of the bank guarantee by the Defendant to the
Plaintiff would operate as a suspensive condition.
…
In the event of the Defendant failing to deliver the bank guarantee
to the Plaintiff by 9 July 2002, or within the extended
period, the
agreement would be deemed to be of no further effect.
In the event of the agreement becoming of no further force or
effect, as a result of the Defendant failing to deliver the bank

guarantee, the Defendant would be liable to the Plaintiff for the
costs incurred by the Plaintiff in respect of the drafting,

negotiation and signature of the agreement, as well as any other
damages suffered by the Plaintiff.’
In pleading the second claim Verimark alleged that there
had been a failure to fulfil the suspensive condition; that the
contract
became of no force and effect and that ‘in terms of the
written agreement’ Mia was liable for any damages suffered by
Verimark
in the event of Mia’s failure to deliver a bank guarantee
timeously. It then formulated its claim in the fashion already
described.
[7] In formulating its claim in this
manner Verimark did not challenge any of the basic principles in
relation to suspensive conditions
set out in paragraph 1 of this
judgment, but accepted that clause 7.1 was a conventional suspensive
condition the failure of which
would not give rise to any claim for
damages. Its claim was accordingly a contractual one based on the
undertaking in clause 7.3.
No question of breach of contract came
into the picture. On that basis the outcome of the case would have
depended upon the construction
of the words ‘any other damages
suffered by the Seller as a result of such non-fulfilment’ and in
particular on the meaning
to be assigned to the word ‘damages’ in
clause 7.3. Ascertaining the meaning of this word would involve a
conventional exercise
in contractual interpretation in accordance
with well-established rules.
5
The language used by the parties must be considered in its particular
context and in the light of the relevant surrounding circumstances.

In general terms, what needs to be determined is what type of
financial loss or detriment is encompassed by the expression ‘any

other damages’. Expressed more narrowly the question is whether any
of the heads of claim advanced by Verimark fall within that

expression.
[8] In arguing its case in this Court Verimark shifted
its ground and contended that the failure by Mia to provide the
guarantee
timeously constituted a breach of contract. Its case as now
presented can be summarised as follows. It submits that under clause

3.2 Mia was obliged to pay the purchase price on transfer and in the
interim it was to be secured by a suitable, unconditional
and
irrevocable bank guarantee which was to be delivered to the seller no
later than seven days after the effective date, being
the date of
signature of the agreement. It says that the words, ‘except for the
obligation of the Purchaser to timeously obtain
fulfilment of the
suspensive condition’ in parentheses in clause 7.1, mean that this
obligation was untouched by the suspension
of the ‘whole of this
Agreement’ in clause 7.1. Accordingly when Mia failed to provide
the guarantee he was in breach of his
obligations under the agreement
and liable to pay damages. That liability is recorded in clause 7.3
of the agreement, but is a
liability arising from the alleged breach
of contract rather than one created by the contract itself. It is not
dependent upon
notice being given in terms of the breach clause
(clause 14) because the operation of that clause is suspended by
clause 7.1. The
damages recoverable as a result are those that would
ordinarily be recoverable for a breach of contract.
[9] Mia disputes this construction of clause 7.1. He
contends that the suspension of the whole of the agreement in clause
7.1 extends
to the obligation to provide the guarantee and that the
words in parentheses apply only to the more limited obligation
resting
upon him to do all things necessary and within his power to
secure the fulfilment of the condition. He accordingly disputes the

suggestion that the mere failure to provide the guarantee was a
breach of contract, but accepts that as a result of the contract

becoming of no force and effect he is liable in terms of clause 7.3
to pay the costs incurred in drafting, negotiating and signing
the
agreement and any other damages suffered by Verimark as a result of
the non-fulfilment of the suspensive condition. His liability
is one
arising by virtue of the contractual stipulation and it is
accordingly necessary to construe the clause in order to determine

the meaning to be ascribed to the word ‘damages’ and hence the
scope of his undertaking. He contends that properly understood
the
‘damages’ referred to in clause 7.3 are restricted to those costs
and expenses, if any, incurred by Verimark that were
wasted as a
result of the non-fulfilment of the condition and the agreement
lapsing and do not extend to other damages that would
ordinarily flow
from a breach of the agreement. If that is incorrect he contends that
the requirements for a successful claim for
special damages are
absent and that the evidence does not support these claims. In
addition he challenges the order made by the
court below that he pay
the costs of the action on the attorney and client scale.
[10] Assuming it is open to Verimark on these pleadings
to contend that the failure to provide a guarantee, without more,
constitutes
a breach of a contractual obligation by Mia, that is
clearly relevant to a proper understanding of the nature of the
‘damages’
referred to in clause 7.3. If the contention is correct
the inevitable conclusion would be that clause 7.3 is referring to
damages
in the broad sense of whatever damages flow from that breach
of contract calculated on whatever basis may be permissible. However,

even on that basis, Mr Joubert SC, who appeared for Mia, submitted
that Verimark had failed to prove its entitlement to the damages

claimed by it. As in my view that contention is correct, it is
unnecessary to address the issues of construction raised by the

parties’ conflicting arguments.
[11] Approaching
the matter on the basis that Mia was in breach of a contractual
obligation to provide the guarantee needed to secure
payment of the
price, the agreement that in that event the contract would be
regarded as of no force or effect must be treated
in the same way as
if Verimark had cancelled the contract as a result of Mia’s breach
and become entitled to claim damages as
a result. On Verimark’s
contentions it is entitled to be put in the same position as it would
have been in if the contract had
been performed, insofar as that can
be done by the payment of money and without undue hardship to the
wrongdoer. Two types of damages
are recoverable on this basis,
namely, those that flow naturally and generally from the kind of
breach in question and that the
law regards as a probable result of
the breach (usually referred to as general damages) and those that,
although caused by the
breach, would ordinarily be regarded as too
remote to be recoverable, but that in the special circumstances
attending the conclusion
of the contract, the parties actually or
presumptively contemplated would result from its breach (usually
called special damages).
6
Where damages of the latter kind are claimed the special
circumstances, on the basis of which the parties are to be presumed
to
have formed their contemplation, must be proved by evidence in the
usual way.
7
The contemplation of those circumstances must be ascertained at the
time the contract is concluded.
8
At present our law adheres to the principle that it is not only
necessary that the damage was within the contemplation of the
parties, but also that the contract was concluded on that basis (the
‘convention’ principle), although that may be the subject
of
reconsideration on some other appropriate occasion.
9
[12] The
damages that flow naturally from the failure of a contract of
purchase and sale are ordinarily calculated as the adverse
difference
between the nett price that would have been paid under the failed
transaction and the market value of the property at
the time for
performance.
10
In many cases the calculation will be based on the nett price
actually achieved on resale provided there is no reason to think
that
market circumstances have materially altered in the interim.
11
Those are the damages that a purchaser would reasonably anticipate as
flowing from a default in paying the purchase price and a
subsequent
cancellation. As damages will probably flow from a particular breach
if the party in default would have anticipated
their occurrence as a
realistic possibility in the circumstances,
12
are any of the heads of damages claimed by Verimark in this category?
[13] The
only items that it was suggested in argument fall under this head
were the interest on the mortgage over the office property
and the
additional costs of security guards, rates and taxes, maintenance and
insurance in respect of that property. In my view
these do not flow
naturally from the failure to bring about the fulfilment of the
suspensive condition. Had the condition been
fulfilled then in due
course Verimark would have received the purchase price less estate
agent’s commission. If the property
had been sold for less than the
agreed price, after taking account of additional sale costs such as
the advertising costs in relation
to the auction ultimately
conducted, there would have been a loss suffered. If Verimark had
changed its mind about moving to new
premises and remained in its old
offices then it could have claimed the difference between the price
offered by Mia and the market
value of the property. That was
foreseeable and a reasonable possibility in all the circumstances.
However that is not the basis
of the claim because Verimark in fact
sold the building the following year for more than the price offered
by Mia, even after taking
account of the additional advertising
costs.
[14] The
expense items referred to above stand on an entirely different
footing. If the sale had proceeded they would have ceased
in respect
of this building but would have been incurred or replaced by
equivalent expenses in premises elsewhere, or the rental
in respect
of new premises would have taken account of such expenses. Neither
Verimark nor Mia could foresee what would happen
in this regard. Much
would depend on how quickly a new purchaser would be found. That in
turn would depend upon the state of the
property market. If a new
purchaser were found fairly quickly then Verimark would move to new
premises. Whether it would need to
incur similar expenses in new
premises would depend on the terms on which it occupied those
premises. The costs incurred would
depend on whether these were more
luxurious or more Spartan than the existing offices. If it was
compelled to stay in the existing
premises for a period the expenses
would continue to be incurred but Verimark would obtain benefits from
them in the form of security,
maintenance of the property, insurance
cover and the payment of interest on its bond rather than rental. The
expenses would maintain
the value of its asset and thereby contribute
to its obtaining the higher price that was obtained when it was sold
the following
year. No doubt the costs incurred would have been
deductible as expenses in the production of income for income tax
purposes and
the VAT payable would have been deducted as an input
credit. No-one in the position of Mia could have any insight into
these matters
of internal administration of Verimark’s business
much less foresee as a realistic possibility that if he failed to
provide the
guarantee Verimark would suffer loss in relation to them.
All in all the situation is far too beset with uncertainty for it to
be said that these were costs that were foreseeable as a realistic
possibility flowing naturally from the failure to provide a guarantee

for payment of the purchase price.
[15] I
turn then to consider the claim on the basis that it is recoverable
as special damages. In order to assess that claim it
is necessary to
have regard to the special circumstances on which Verimark relied in
advancing this claim as it is those circumstances
that must be proved
in order to advance the claim at all. The special circumstances on
which Verimark relied as set out in its
pleadings were limited to
‘the Defendant’s knowledge of the Plaintiff’s intention to
vacate the immovable property and occupy
alternative business and
warehouse premises’. No allegations were made in regard to
knowledge of Verimark’s desire to reduce
costs nor were any details
alleged in regard to the nature or location of the proposed new
premises and the basis upon which the
move to such premises would
result in a cost saving. It is unclear in those circumstances on what
basis Verimark then contended
that the damages it was claiming were
within the contemplation of the parties at the time of entering into
the written agreement,
but it is unnecessary to go into this as there
is a prior insurmountable difficulty with its case.
[16] The
claim advanced on the basis of special damages founders because the
evidence does not support even the limited pleaded
proposition on
which it is based. Britz, who was the principal witness for Verimark
in this regard, said that Blair, the agent
acting for Verimark in
looking for a purchaser, knew of its plans in regard to selling the
office premises and consolidating new
office premises with new
warehouse facilities. However Blair was Verimark’s agent and his
knowledge could not be attributed to
Mia. The fact that at the same
time he was also employed by Mia to find a tenant for the building
that he was buying from Verimark
cannot alter this. It certainly
forms no basis for the submission advanced to us that Blair must have
told Mia about Verimark’s
plans. That is pure speculation. As
regards the knowledge of Mia there is no evidence that he was aware
of Verimark’s plans.
Britz merely testified to some limited and
irrelevant conversations when Mia visited the premises. It was
suggested that the absence
of evidence could be overcome by drawing
an inference against Mia from his failure to testify, but the cases
are clear that such
an inference can only be drawn when there is at
least some evidence that prima facie supports the proposition sought
to be proved.
13
Here the evidence provided no basis at all for attributing to Mia
knowledge of Verimark’s plans so that his failure to give evidence

is a neutral factor.
[17] Even
if the claim for special damages is limited to the additional costs
in respect of the office premises the same problems
of lack of
knowledge and absence of foreseeability confront Verimark. Not only
was Mia not made aware of the existence of the warehouse
and the plan
to consolidate it with the office, he did not know that Verimark was
disposing of the office premises in order to
cut its costs by
reducing its overheads. As was put to its counsel in argument, Mia
did not know if Verimark intended to move to
Pofadder or to more
palatial premises in Sandton. He could not then have known the
underlying facts on which the claim is based
and could not have
foreseen that Verimark would suffer the damages it now seeks to
recover as a result of the failure to provide
the guarantee for the
purchase price.
[18]
What is more, a claim for special damages requires that, in the light
of the relevant special circumstances, the damages claimed
must have
been in the contemplation of the parties when the contract was
concluded. However, when Verimark’s attorneys formulated
its claim
in correspondence, in letters dated 14 February 2003 and 4 August
2003, (the latter after the property had been sold)
they did so on a
wholly different basis to that advanced at the trial. The letters
contain no suggestion that the contract had
been concluded in the
light of knowledge of special circumstances or that the damages now
claimed (which were not the damages claimed
in the letters) were
foreseeable when the contract was concluded. As knowledge of the
special circumstances on which Verimark relies
in support of its
claim for special damages is crucial to establish foreseeability,
which in turn is necessary for them to be in
the contemplation of the
parties when they contracted, the letters are a clear indication that
the parties did not have the requisite
knowledge or foresight.
[19] For
those reasons the appeal must succeed and the judgment in favour of
Verimark be set aside. In the court below an order
for attorney and
client costs was made against Mia. In arguing the appeal Mr du
Toit SC submitted that if the appeal succeeded
that success
should not carry with it an order for costs in favour of Mia and
similarly no order for costs should be made in Mia’s
favour in
respect of the trial. He based this on allegations of dishonesty that
he founded on amendments made to Mia’s plea,
the late abandonment
of the defence of rectification and Mia’s failure to give evidence.
He added in regard to the appeal that
Mia had falsely stated in his
application for leave to appeal that he had been refused a loan
whereas this was not true.
[20] It
is correct that Mia amended his pleadings several times and abandoned
certain defences, but the same point can be made against
Verimark.
The claim it formulated in correspondence prior to commencing
proceedings and its initially pleaded claim were significantly

different from the claim finally advanced. It is not possible for us
to discern whether these changes of stance were, as suggested
to us
by Mr Joubert SC, a result of counsel’s advice as to the law and
the proper conduct of the case or for some other reason.
They do not
appear to have prolonged the proceedings unnecessarily or resulted in
a significant waste of costs. In making its order
the trial court
should have borne in mind, as I do, the words of Trollip JA in the
Shatz Invesments
case
14
that:
‘But
generally, in regard to that complaint and others by plaintiff about
the manner in which the trial was conducted on defendant's
behalf,
one should bear in mind that usually a wide latitude should be
afforded a defendant in presenting his defence, especially
when he is
confronted with a substantial claim for damages. In such a case, I
think, the defendant is usually entitled
'to put
his back against the wall and to fight from any available point of
advantage'
(cf
KEKEWICH J in
Blank v Footman, Pretty &
Co
39 Ch D 678
at p. 685, quoted with
approval in
Nel v Nel
1943 AD 280
at p. 288).’
[21] As
regards Mia’s failure to give evidence, if there was, as I have
found, no case for him to meet there was no reason for
him to do so
and no criticism can be addressed against him for not doing so. That
leaves only the point about the falsehood in
the application for
leave to appeal. That cannot affect the costs of the trial and did
not affect either the grant of leave to
appeal or the outcome of the
appeal. Whilst it is deprecated it does not warrant an adverse order
for costs.
[22] The
appeal therefore succeeds with costs including those of two counsel.
However, in regard to the costs in the court below
it must be borne
in mind that the claim to recover the costs of negotiating, drafting
and signing the sale agreement was resisted
to the end although no
part of the trial was spent on it. Verimark is entitled to some costs
in regard to its successful pursuit
of that claim. Mr Joubert SC
suggested that the appropriate order would be one in which the first
claim was upheld with costs on
the appropriate Magistrates’ Court
scale and the second claim should be dismissed with costs including
those of two counsel.
However that may create unnecessary complexity
in taxing the rival bills of costs. It seems to me preferable for
Verimark to have
its costs on the appropriate magistrates’ court
tariff up to the first day of the trial and for Mia to have his costs
thereafter
including the costs of two counsel. An adjustment is made
in respect of the costs of discovery and the preparation of the trial

bundle as these costs related almost exclusively to the second claim.
[23] In
the result the following order is made:
(a) The appeal is upheld with costs such costs to
include those consequent upon the employment of two counsel.
The order of the court
a quo
is altered to read as follows:
‘
(i) On claim 1 there will be judgment for the
plaintiff for R13 160 together with interest thereon at the rate
of 15,5% per
annum from date of demand, being 24 February 2003, to
date of payment.
Claim 2 is dismissed.
The defendant is to pay the plaintiff’s costs of
suit on the appropriate magistrates’ court scale from the
commencement
of the action until the end of the first day of the
trial such costs to exclude the costs of making discovery and the
costs
attendant upon the preparation and copying of the trial
bundle.
The plaintiff is to pay the defendant’s costs,
including the costs of two counsel, from the second day of the
trial until
the completion of proceedings, as well as the costs
excluded in paragraph (c).’
M J D WALLIS
ACTING JUDGE OF APPEAL
APPEARANCES
FOR APPELLANT: A P JOUBERT SC (with him D H WIJNBEEK) the heads of
argument having been prepared by A P JOUBERT SC (with him M
M SMIT).
Instructed by
Melamed & Hurwitz Inc, Johannesburg Rosendorff, Reitz and Barry,
Bloemfontein
FOR RESPONDENT: S DU TOIT SC (with him G NEL).
Instructed by
Bell, Dewar and Hall Inc, Johannesburg Webbers,
Bloemfontein.
1
Corondimas v Badat
1946 AD 548
at 551, 558-559;
Palm
Fifteen (Pty) Limited v Cotton Tail Homes (Pty) Ltd
1978 (2) SA
872
(A) at 887.
2
Odendaalsrust Municipality v New Nigel Estate Gold Mining Co Ltd
1948 (2) SA 656
(O) at 665-667.
3
Design and Planning Service v Kruger
1974 (1) SA 689
(T) at
695C-F;
Jurgens Eiendomsagente v Share
[1990] ZASCA 81
;
1990 (4) SA 664
(A) at
674D-675B.
4
Macduff & Co Ltd (in liquidation) v Johannesburg Consolidated
Investment Co Ltd
1924 AD 573
at 590-591.
5
Coopers & Lybrand & others v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A) at 767E - 768E.
6
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670
(A) at 687C-F.
7
Shatz Investments (Pty) Ltd v Kalovyrnas
1976 (2) SA 545
(A)
at 552A-B.
8
Shatz Investments
at 551D-H.
9
Shatz
Investments
at 552A-554F. The controversy remains unresolved.
Thoroughbred Breeders' Association v Price Waterhouse
2001
(4) SA 551
(SCA) para 47.
10
Novick v Benjamin
1972 (2) SA 842
(A) at 860B-D;
Katzenellenbogen Ltd v Mullin
1977 (4) SA 855
(A) at
879H-880B.
11
Culverwell & another v Brown
1990 (1) SA 7
(A) at
30I-31F.
12
Thoroughbred Breeders
para 49.
13
Titus v Shield Insurance Co Ltd
1980 (3) SA 119
(A) at
133D-134B;
Raliphaswa v Mugivhi & others
[2008] ZASCA 17
;
2008 (4) SA 154
(SCA) para 15.
14
At 560D-F.