About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 412
|
|
Compass Insurance Company Limited v Civmaq Projects (Pty) Ltd and Others (6998/2018) [2021] ZAGPJHC 412 (27 August 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, JOHANNESBURG
CASE
NUMBER: 6998/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
27 AUGUST 2021
In
the matter between: -
COMPASS
INSURANCE COMPANY LIMITED
Applicant
and
CIVMAQ
PROJECTS (PTY)
LTD
First respondent
(REGISTRATION
NUMBER: [....])
MAQUBELA,
DONALD MONGEZI
Second respondent
(IDENTITY
NUMBER: 6[....])
NXUMALO,
NKOSINGIPHILE DOLLY PURITY
Third respondent
(IDENTITY
NUMBER: 7[....])
JUDGMENT
DELIVERED
:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e mail and
publication
on CaseLines. The date and time for hand-down is deemed
to be 10h00 on 27 August 2021.
F.
BEZUIDENHOUT AJ:
INTRODUCTION
[1]
The applicant (“
Compass”
)
seeks payment from the respondents, jointly and severally, the one
paying the others to be absolved, of the amount of R1,759,908.62
together with interest and costs on the attorney and client scale
.
[2]
The respondents opposed the application and
to this end filed an opposition to the relief claimed by Compass, on
the 10
th
of July 2018. The respondents were assisted by attorneys.
[3]
On
the 3
rd
of March 2021 an order was granted compelling the respondents to
deliver their heads of argument within three days of the granting
of
the order, failing which their opposition to the main application may
be struck.
[1]
The respondents
failed to do so.
[4]
On the 11
th
of March 2021 the attorneys acting for the respondents formally
withdrew as attorneys of record by way of notice.
[5]
On
the 28
th
of April 2021, the applicant applied for an opposed hearing date
and on the 7
th
of July 2021, one was allocated for the 23
rd
of August 2021. On the 13
th
of July 2021 a copy of the notice of set-down was served by way
of sheriff op the respondents at their chosen
domicilium
citandi et executandi
.
[2]
Despite
proper notification, there was no appearance on behalf of the
respondents.
THE APPLICANT’S
CASE
[6]
Compass is a short-term insurance company registered to conduct
guarantee insurance
business. On the 11
th
of May 2011,
the first respondent executed a counter indemnity and the second
and third respondents deeds of suretyship,
in favour of Compass.
[7]
I interject
to mention that the first respondent underwent a name change on the
19
th
of
August 2014 from Khuboni Civil Projects (Pty) Ltd to Civmaq
Projects (Pty) Ltd.
[3]
[8]
The material terms of the written indemnity, for purposes of the
present application,
were as follows: -
[a]
Compass agreed to enter into certain guarantees, undertakings and
suretyships on behalf of the
first respondent in favour of certain
persons, companies, local, provincial or governmental authorities or
other bodies for the
due payment by the first respondent of any
monies owing from time to time or for the due performance by the
respondent of its obligations
under any contracts entered into;
[b]
Compass agreed to execute the guarantees against signature and
delivery by the first respondent
of a written counter-indemnity and
of the additional securities required by Compass;
[c]
The first
respondent would indemnify Compass and hold it harmless from and
against all and any claims, loss, demands, liability,
costs and
expenses of whatsoever nature, including legal costs as between
attorney and client, which it may at any time sustain
or incur by
reason or in consequence of having executed any guarantees on behalf
of the first respondent;
[4]
[d]
The first
respondent undertook and agreed to pay to Compass on demand any sums
of money which it may be called upon to pay under
the guarantees,
together with interest thereon, whether or not Compass at such date
shall have made such payment, and whether or
not the first respondent
admitted the validity or amount of such claim against Compass under
the guarantees;
[5]
[e]
If the
first respondent disputed the validity of amount of any claim against
Compass, it would nonetheless be obliged to deposit
the amount with
Compass, on demand, pending adjudication or settlement of such
dispute;
[6]
[f]
The first
respondent would be liable to Compass for payment of interest on any
sums which it may pay under the guarantees, from
the date of such
payment until it is repaid at the rate equal to the overdraft rate of
Standard Bank of South Africa Limited, plus
2 %;
[7]
[g]
The first
respondent’s liability to Compass would be unlimited;
[8]
[h]
The first respondent chose as its
domicilium citandi et executandi
[....] L[....] Street, Boksburg.
[9]
The written
deed of suretyship executed by the second and third respondents in
favour of Compass provided as follows:
[9]
-
[a]
The second and third respondents bound themselves as sureties for and
co-principal debtors jointly
and severally with the first respondent,
in solidum
for the due payment by the first respondent to
Compass of all and any amounts which the first respondent may be
liable to pay to
Compass under the indemnify and further indemnified
Compass and held it harmless from and against all and any claims,
losses, demands,
liabilities, costs and expenses of whatsoever
nature, including legal costs as between attorney and client,
together with interest
at the prime overdraft rate of Standard Bank
of South Africa Limited plus 2 % to date of payment;
[b]
The second
and third respondents undertook and agreed to pay to Compass on
demand any sums of money which Compass may be called
upon to pay
under any guarantee, whether or not Compass shall at such date have
made such payment and whether or not the first
respondent admitted
the validity of such claims against Compass under the guarantee;
[10]
[c]
The second
and third respondents renounced the legal exceptions or benefits of
excussion, division, cession of action and no value
received;
[11]
[d]
The second
and third respondents chose as their
domicilium
citandi et executandi
for the effectual service of all notices and legal processes in
regard to flowing from the surety at [....] S[....] Street,
Libradene, Boksburg.
[12]
[10]
On 11 April 2012 Compass, through its underwriting agent, issued a
guarantee at the instance
and request of the first respondent in
favour of the Ekurhuleni Metropolitan Municipality (“
the
employer”
). In terms of the guarantee, Compass held itself
liable to the employer as guarantor and co principal debtor for
the performance
of the first respondent in respect of a construction
contract concluded between the first respondent and the employer. The
liability
of Compass was limited to payment of a maximum amount of
R1,759,908.62.
[11]
On 23 June 2017, the employer instituted action against Compass
claiming payment under the guarantee
for an amount of R1,759,908.62
together with interest at the rate of 10.25 %
a tempore morae
as well as costs.
[12]
On 26 January 2018 Compass, through its attorneys of record, demanded
payment from the respondents
in terms of the indemnity.
Notwithstanding demand, payment of the amount had not been
forthcoming from the respondents and as a
consequence the present
application was instituted.
[13]
Compass
attached to its founding affidavit as annexure “COM6”
[13]
an extract from Standard Bank of South Africa’s website
indicating the prime overdraft rate for purposes of the calculation
of interest as 10.25 % effective from 21 July 2017.
RESPONDENTS’
CASE
[14]
The defences raised by the respondents in their answering affidavit
may be summarised as follows: -
[a]
The respondents contend that the deponent to Compass’ founding
affidavit, namely Ms Adel Walker,
did not have the
authority to depose to the founding affidavit;
[b]
They further contended that payment by the first respondent is not
due as Compass did not make
payment to the employer;
[c]
The respondents claim that the indemnity is contradictory as to when
payment by the first respondent
becomes due;
[d]
It is alleged that the suretyship is against public policy.
[15]
I deal with each defence in my finding.
FINDING
Lack of authority
[16]
Annexure
“COM1” to the founding affidavit
[14]
states that Ms Varden is authorised to depose to affidavits in
litigation matters on behalf of Compass, and in her absence,
Ms Walker does.
[17]
The respondents argue that the absence of Mr Varden is a
condition precedent to Ms Walker
deposing to the founding affidavit.
Therefore, Ms Walker was required to state in the founding
affidavit that Ms Varden
was absent, resulting in Ms Walker
deposing to the founding affidavit.
[18]
In reply
Ms Walker denies the lack of authority, states that she is
unable to recall whether Ms Varden was absent on the
day
Ms Walker was required to depose to the founding affidavit, but
more importantly, states that the facts contained in the
founding
affidavit fall within her knowledge in that the claim instituted by
the employer against Compass falls in her purview
and personal
knowledge. In any event, Ms Walker then attaches a further
resolution to Compass’ reply as annexure “COM7”
authorising her to depose to any affidavit in any litigation matters
involving Compass and specifically ratifying her authority
to depose
to the founding affidavit in this matter.
[15]
[19]
The
approach to challenging authority has been developed by our courts.
In this regard, it has been held that:
[16]
-
“…
The
regularity of arguments about the authority of a deponent [is]
unnecessary and wasteful.
A rule of court or a
formal practice direction must be honoured despite any arbitrariness.
It functions even when it lacks convincing
logic or utility in its
creation or in its survival. The present issue may be decided in
accordance with principle without interference
from constraining
directives because there is now, ordinarily, no prescribed formula
for proving authority either as a routine
prerequisite for issuing an
application or otherwise. See Administrator, Transvaal v Mponyane and
Others
1990 (4) SA 407
(W); Brown v Oosthuizen en ‘n Ander
1980
(2) SA 155
(O) at 162.
The care displayed in
the past about proof of authority was rational. It was inspired by
the fear that a person may deny that he
was party to litigation
carried on in his name. His signature to the process, or when that
does not eventuate, formal proof of
authority would avoid undue risk
to the opposite party, to the administration of justice and sometimes
even to his own attorney.
(Compare Viljoen v Federated Trust Ltd
1971
(1) SA 750
(O) at 752D-F and the authorities there quoted).
The developed view,
adopted in court rule 7(1), is that the risk is adequately managed on
a different level. If the attorney is
authorised to bring the
application on behalf of the applicant, the application necessarily
is that of the applicant. There is
no need that any other person,
whether he be a witness or someone who becomes involved especially in
the context of authority,
should additionally be authorised. It is
therefore sufficient to know whether or not the attorney acts with
authority.
As to when and how the
attorney’s authority should be proved, the rule maker made a
policy decision. Perhaps because the risk
is minimal that an attorney
will act for a person without authority to do so, proof is dispensed
with except only if the other
party challenges the authority. See
rule 7(1). Courts should honour that approach. Properly applied, that
should lead to the elimination
of the many pages of resolutions,
delegations and substitutions still attached to applications by some
litigants, especially certain
financial institutions.”
[20]
It is thus
clear that it is not the deponent to an affidavit in motion
proceedings who needs to be authorised by the party concerned,
but it
is the institution of proceedings and the prosecution thereof which
must be authorised. Rule 7 of the Uniform Rules
of Court
provides a procedure for a respondent who challenges the authority of
an attorney who instituted motion proceedings on
behalf of an
applicant. In circumstances where an attorney’s authority to
institute proceedings on behalf of an applicant
is challenged, it is
incumbent upon the respondent to avail itself of the procedure
provided for in rule 7.
[17]
[21]
The
rationale behind this approach has been concisely stated and that is
that:
[18]
-
“…
A
party who wishes to raise the issue of authority should not adopt the
procedure followed by the appellants in this matter, i.e. by
way
of argument based on no more than a textual analysis of the words
used by a deponent in an attempt to prove his or her own
authority.
This method invariably resulted in a costly and wasteful
investigation, which normally leads to the conclusion that
the
application was indeed authorised. After all, there is rarely any
motivation for deliberately launching an unauthorised application…”
[22]
The respondents in this matter did not avail themselves of the
procedure set out in rule 7(1).
In any event, insofar as it was
necessary, a resolution ratifying Ms Walker’s authority
was attached to the replying
papers and the respondents made no
further issue by way of a supplementary affidavit. I accordingly find
that there is no merit
in this defence.
Payment by the first
respondent not due
[23]
The respondents contend that the counter-indemnity is contradictory
as to when payment by the
first respondent becomes due. Coupled with
this argument, the respondents deny that the first respondent
breached the building
contract concluded between the first respondent
and the employer.
[24]
Lastly on this defence, the first respondent who deposed to the
answering affidavit avers that
it was specifically represented to him
by a certain Tamuka Chikorov upon the conclusion of the
counter-indemnity that the
first respondent’s liability to make
payment would only arise upon Compass having made payment to the
employer. The representation
was thus material, so the argument goes,
and induced the second respondent in concluding the counter-indemnity
on behalf of the
first respondent.
[25]
It is trite
that the onus of proof rests on the party who alleges the
misrepresentation. The determination of the actionability
of the
misrepresentation will thus depend on whether the respondents have
shown on a balance of probabilities that the misrepresentation
was
made and that it induced the contract.
[19]
[26]
The respondents failed to provide any details about the relationship
between this certain Tamuka Chikorov
and Compass. In fact, no
information regarding the circumstances surrounding this
representation has been provided.
[27]
It is
apposite that the first respondent’s allegation of
misrepresentation only extends to the counter-indemnity, not to the
suretyship. This is clear from paragraphs 18 and 19 of the
answering affidavit.
[20]
Pertinently clause 1 of the deed of suretyship mirrors
clause 1.2 of the indemnity and similarly provides that the
sureties
shall be jointly liable with the first respondent for the
payment of the amount claimed by Compass, whether or not Compass has
made payment of such amount.
[28]
In
addition, it has been held in
Slipknot
Investments 777 (Pty) Ltd v Du Toit
[21]
that a person who is induced to sign a suretyship agreement by fraud
or misrepresentation of a third party that he is unaware of
the
nature of the document he is signing, will nevertheless be bound by
the agreement if the lender is innocent and unaware of
the surety’s
mistake. It is most certainly not the respondents’ case that
Compass was aware of the alleged misrepresentation.
[29]
Further, in
Langeveld
v Union Finance Holdings (Pty) Ltd
[22]
the full court of this division held that there is a strong
praesumptio
hominis
that anyone who had signed the document had the
animus
to enter into the transaction and this person was burdened with the
onus of convincing the court that he had not in fact entered
the
transaction by virtue of the maxim
caveat
subscriptor
.
The second respondent describes himself as a businessperson at
paragraph 1.1 of the answering affidavit. He is therefore
not a
“
babe-in-the-woods”
as referred to in Langeveld.
[30]
Accordingly, I find that the respondents failed to discharge the onus
to prove that the counter-indemnity
was induced by misrepresentation.
Even if a case was made out for misrepresentation, the respondents
have a further difficulty.
As already indicated, the defence of
misrepresentation has only been raised against the counter-indemnity.
The deed of suretyship
provides at clause 7(a) that the deed shall be
enforceable against the sureties in accordance with the tenor
thereof, notwithstanding
that the indemnity may in any way be invalid
or unenforceable against the first respondent. Therefore, on this
basis also, the
defence has no merit.
Contradictory terms of
the counter-indemnity
[31]
As a third defence, the respondents contend that clauses 1.2 and
2 of the counter indemnity
contain contradictory terms.
Clause 1.2 provides that Compass may claim payment from the
respondents whether or not Compass
has made payment to the employer.
Clause 2 provides that for purposes of any claim against the
respondents, the vouchers or
other evidence showing payment by
Compass shall be
prima facie
evidence against them of the fact
and the amount of their liability.
[32]
Clauses 1.2 and 2 provide for two completely different scenarios. In
terms of clause 1.2
Compass has not yet made payment to the
employer, but is regardless entitled to claim payment from the
respondents, whereas clause 2
facilitates an evidentiary burden
where Compass has already made payment to the employer. Under the
circumstances it therefore
cannot be said that there is a
contradiction between these two terms. If there is no contradiction,
there can also be no great
injustice that has been perpetrated
against the respondents as alleged. In the premises, I do not find
any merit in this defence
either.
Suretyship against
public policy
[33]
The respondents allege that the provisions of clause 7(a) of the
suretyship already referred
to, is contrary to public policy in that
it seeks to permit enforceability of the suretyship agreement despite
the counter-indemnity
being unenforceable.
[34]
The courts
have reaffirmed the concept of public policy as the appropriate
instrument for dealing with contractual unfairness that
cannot
satisfactorily be handled by existing rules.
[23]
[35]
It is now firmly established that in the words of Cameron JA in
Brisley v Drotsky
: -
“
Public policy
is now rooted in our Constitution and the fundamental values it
enshrines. These include human dignity, the achievement
of equality
and the advancement of human rights and freedom, non racialism
and non-sexism.”
[36]
Brand JA
took the opportunity in
South
African Forestry Co Ltd v York Timbers Ltd
[24]
to refer to
Brisley
and sum up: -
“…
It was
held by this court that, although abstract value such as good faith,
reasonableness and fairness are fundamental to our law
of contract,
they do not constitute independent substantive rules that courts can
employ to intervene in contractual relationships.
These abstract
values perform creative, informative and controlling functions
through established rules of the law of contract.
They cannot be
acted upon by the courts directly. Acceptance of the notion that
judges can refuse to enforce a contractual provision
merely because
it offends their personal sense of fairness and equity will give rise
to legal and commercial uncertainty. After
all, it has been said that
fairness and justice, like beauty, often lie in the eye of the
beholder. In addition, it was held in
Brisley and Afrox Healthcare
that - within the protective limit of public policy that the courts
have carefully developed, and
consequent judicial control of
contractual performance and enforcement - constitutional values such
as dignity, equality and freedom
require that courts approach their
task of striking down or declining to enforce contracts that parties
have freely concluded,
with perceptive restraint.”
[37]
Finally, in
Barkhuizen
v Napier
[25]
the Constitutional Court held that: -
“…
The
proper approach to the constitutional challenges to contractual terms
is to determine whether the term challenged is contrary
to public
policy as evidenced by the constitutional values, in particular,
those found in the Bill of Rights. This approach leaves
space for the
doctrine of pacta sunt servanda to operate, and at the same time
allows courts to decline to enforce contractual
terms that are in
conflict with the constitutional values even though the parties may
have consented to them.”
[26]
[38]
The enquiry is twofold, namely: -
[a]
firstly, whether the clause itself is unreasonable; and
[b]
secondly,
if the clause is unreasonable, whether it should be enforced given
the circumstances preventing compliance with it.
[27]
[39]
The court elaborated on these two questions as follows: -
“
The first
question involves the weighing up of two considerations. On the one
hand public policy, as informed by the Constitution,
requires in
general that parties should comply with contractual obligations that
have been fully and voluntarily undertaken. This
consideration is
expressed in the maxim pacta sunt servanda, which, as the Supreme
Court of Appeal has repeatedly noted, gives
effect to the central
constitutional values of freedom and dignity. Self-autonomy, or the
ability to regulate one’s own affairs,
even to one’s own
detriment, is the very essence of freedom and a vital part of
dignity.”
And
further, as far as the second question is concerned:
-
“
Once it is
accepted that the clause does not violate public policy and
non-compliance with it is established, the claimant is required
to
show that in the circumstances of the case there was a good reason
why there was a failure to comply.”
[40]
The words of caution uttered by Moseneke DCJ and Sachs J in
the same case are instructive: -
“
Courts
emphasize that it is the tendency of the clause to deprive the
respondent of his right to judicial redress, which should
be
scrutinized for reasonableness. Public policy cannot be determined at
the behest of the idiosyncrasies of individual contracting
parties.
If it were so, the determination of public policy would be held
ransom by the infinite variations to be found in any set
of
contracting parties. In effect, on the subjective approach that the
majority judgment favours, identical stipulations could
be good or
bad in a manner that renders whimsical the reasonableness standard of
public policy.”
[28]
[41]
The respondents have not advanced any evidence to support their bald
allegation that clause 7(a)
is against public policy. The deed
of suretyship was freely and voluntarily entered into. There is no
evidence before me to gainsay
this fact. With regard to the first leg
of the enquiry as held in
Barkhuizen
, I find that the clause
is not against public policy. It is common cause that the respondents
have not complied with the deed of
suretyship and failed to make
payment. Therefore their defence tested against the second leg of the
enquiry, holds no water either.
No breach of the
building contract
[42]
As an additional defence, the respondents denied that the first
respondent breached the terms
of the building contract. They
therefore contend that until this dispute is resolved, it would not
be in the interest of justice
and fairness to expect the respondents
to make payment of the amount claimed.
[43]
The respondents lose sight of the fact that there are three distinct
relationships between the
parties: -
[a]
Firstly, there is a relationship between the employer and the first
respondent, which relationship
is governed by the terms of the
construction contract. It is common cause that Compass was not privy
to this agreement;
[b]
Secondly, there is a relationship between Compass and the employer,
which relationship is governed
by the terms of the guarantee; and
[c]
Thirdly, there is a relationship between Compass and the respondents,
which relationship is governed
by the terms of the indemnities.
[44]
It is clear from a reading of the founding papers that the cause of
action brought by Compass
is founded on the indemnities. The
counter-indemnity renders the undertaking made by the first
respondent an “
on demand guarantee”
.
[45]
In these
circumstances the underlying contractual relationship between the
employer and the first respondent is irrelevant to the
present
application as “
on
demand guarantees”
stand separately, independently and autonomously from the underlying
contracts.
[29]
[46]
In all the circumstances I find that the respondents failed to
disclose a defence to the applicant’s
claim and I find that the
applicant has made out a proper case for the relief sought.
ORDER
I
therefore make the following order: -
[1]
The first, second and third respondents, jointly and severally, the
one paying
the others to be absolved, shall make payment to the
applicant of:
-
[a]
The amount of R1,759,908.62; and
[b]
Interest on the amount of R1,759,908.62 at a rate of 12.25 % per
annum calculated from date
of payment by the applicant to the
employer (Ekurhuleni Metropolitan Municipality) until date of final
payment;
[c]
The costs of this application on a scale as between attorney and
client.
F
BEZUIDENHOUT
ACTING
JUDGE OF
THE
HIGH COURT
DATE
OF HEARING: 23
August 2021
DATE
OF JUDGMENT: 27 August 2021
APPEARANCES:
On
behalf of applicant:
Adv
A N Kruger
.
adrian.k@law.co.za
Instructed
by:
Frese, Gurovich Attorneys
Tel: (011) 888-2300
.
ivan@fresemoll.co.za
.
On
behalf of respondents:
No appearance.
[1]
Order
to compel: pp A1 and A2.
[2]
Returns
of service: pp B42, C4 and C5.
[3]
Founding
affidavit: annexure “COM2”, p 1-25.
[4]
Founding
affidavit: annexure “COM3.1”; counter-indemnity, clause
1.1.
[5]
Founding
affidavit: annexure “COM3.1”; counter-indemnity, clause
1.2.
[6]
Founding
affidavit: annexure “COM3.1”; counter-indemnity, clause
1.2.
[7]
Founding
affidavit: annexure “COM3.1”; counter-indemnity, clause
1.3.
[8]
Founding
affidavit: annexure “COM3.1”; counter-indemnity, clause
2.
[9]
Founding
affidavit: annexure “COM3.2”, p 1-34.
[10]
Founding
affidavit: annexure “COM3.2”, clause 1, pp 1-35 and
1-36.
[11]
Founding
affidavit: annexure “COM3.2”, clause 4, p 1-36.
[12]
Founding
affidavit: annexure “COM3.2”, clause 8, pp 1-37 and
1-38.
[13]
p
1-123.
[14]
p
1-19.
[15]
Replying
affidavit: annexure “COM7”, p 3-15.
[16]
Eskom
v Soweto City Council
1992 (2) SA 703
(W) at 705C - H.
[17]
Ganes
and Another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) at paragraph [19].
[18]
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at paragraph [16].
[19]
African
Eagle Life Assurance Co Ltd v Cainer
1980 (2) SA 234
(W) at 236 - 238; see also
Dorklerk
Investments (Pty) Ltd v Bhyat
1980 (1) SA 443
(W) at 444F - G.
As
to materiality of facts and representation, a reliable résumé
of our law is to be found in Christie,
The
Law of Contract in South Africa
(6
th
edition)
at 294
et
seq
.
[20]
Answering
affidavit, pp 2-11 and 2-12.
[21]
2011
(4) SA 72
(SCA).
[22]
2007
(4) SA 572 (W).
[23]
Brisley
v Drotsky
2002 (4) SA 1
(SCA) [91], citing
Sasfin
(Pty) Ltd v Beukes
1989 (1) SA 1
(A);
De
Beer v Keyser
2002 (1) SA 827
(SCA) [22].
[24]
2005
(3) SA 323
(SCA) [27].
[25]
2007
(5) SA 323 (CC).
[26]
Paragraphs
[28] to [30].
[27]
Barkhuizen
v Napier
,
paragraph [56].
[28]
Barkhuizen
v Napier
paragraph
[98].
[29]
Compass
Insurance Co Ltd v Hospitality Hotel Developments
2012 (2) SA 537
(SCA) at paragraphs [14] and [15];
Lombard
Insurance Co v Landmark Holdings
2010 (2) SA 86
(SCA) paragraph [20].