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[2021] ZANCHC 7
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Minister of Justice and Correctional Services v Kitcher and Another (874/2019) [2021] ZANCHC 7 (22 January 2021)
IN THE HIGH COURT OF SOUTH
AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Reportable/ Not reportable
Case No: 874/2019
In the matter between:
MINISTER OF JUSTICE &
CORRECTIONAL SERVICES APPELLANT
And
KARL
KITCHER
FIRST RESPONDENT
MOMPATI CELETIOUS
SEBOGO
SECOND RESPONDENT
Coram: Phatshoane ADJP, Mamosebo
J and Van Tonder AJ
Determined on paper
Delivered: 22 January 2021
Judgment
PHATSHOANE ADJP
Introduction
[1] Mr
Karl Kitcher, the first respondent, was viciously attacked and
injured by the dogs that belonged
to Mr Mompati Celetious Sebogo, the
second respondent. He instituted action for damages in the amount of
R1 799 832.77
against Mr Sebogo and the Minister of Justice
and Correctional services, the appellant. The cause of action pleaded
by Mr Kitcher
against Mr Sebogo was
actio
de pauperi
which
action “
lies
against the owner in respect of harm (pauperies) done by domesticated
animals, such for instance....dogs acting from inward
excitement
(sponte feritate commota) if the animal does damage from inward
excitement or, as it is also called, from vice, it is
said to
act contra naturam sui, generis; its behaviour is not considered
such as is usual with a well-behaved animal of the
kind. On the other
hand, if the act was not due to vice on the part of the animal but
was provoked-in other words if there has
been concitatio, the
action does not lie.”
[1]
[2] Mr
Kitcher’s alternative cause of action against Mr Sebogo is
under the
Actio Legis Aquilia
on the ground
,
inter alia
, that he negligently caused foreseeable injury to him
by failing to take reasonable precautions to prevent the dogs from
harming
him.
[3] As
against the Minister it was pleaded that he was aware of the danger
posed by Mr Sebogo’s dogs
to the employees of Correctional
Services and members of the public; he had a legal duty to take
reasonable steps to ensure that
the public and, in particular, Mr
Kitcher was protected from being attacked by the dogs; he unlawfully
and negligently failed to
prevent the harm from eventuating. It was
further pleaded that the Minister ought to have compelled Mr Sebogo
to confine his dogs
in his yard or dispose of them; and to have
exercised sufficient control over them.
[4] The
parties agreed before Coetzee AJ to have the merits disposed of first
while the question of
quantum
stood over for later
determination. Having granted the application in terms of Rule 33(4)
of the Uniform Rules Coetzee AJ ordered
that the matter proceed on
the issue of liability only. On 07 December 2018, following the
hearing of evidence he upheld Mr Kitcher’s
claim and found that
the Minister and Mr Sebogo were jointly and severally liable for all
damages, as Mr Kitcher would be able
to prove, in consequence of Mr
Sebogo’s dogs having attacked and injured Mr Kitcher including
the costs of the action.
[5] This
appeal, which serves before us with leave of the Court
a quo,
our
brother Coetzee AJ
,
is against part of the judgment and order.
As will be noted in due course the liability of the owner of the
dogs, Mr Sebogo, is
not in issue but central to this appeal is the
liability of the Minister.
Factual background
[6] Mr
Kitcher and Mr Sebogo were employed by the Minister as Section Head:
Case Management Administration
and Call Centre Clerk: Supply Chain,
respectively. They rented official accommodation in two of about 10
married quarters which
form part of the Douglas Correctional Centre
(prison premises) under the control of the Department of Justice and
Correctional
Services (“the department”) and the
Minister. Mr Kitcher and Mr Sebogo’s family houses were
situated on opposite
sides of the street. Each of these married
quarters or units is fenced off and fitted with a gate. Overall,
around the correctional
facility is a security perimeter fence of the
razor-wire type. Access to the premises is controlled.
[7]
Although there were no declared internal rules or policy governing
keeping of pets in general or dogs
in particular the tenants of the
family quarters were not debarred from owning domesticated animals
provided they did so within
their fenced yards and the gates properly
closed at all times. Mr Sebogo owned three dogs: an Alsatian/Police
dog called Tiger;
a mixed-breed type of an Alsatian called Sissy and
a small-sized dog whose name is not apparent from the record. It was
initially
disputed in the Court
a quo
that the mauling dogs
fitted the description of Mr Sebogo’s. However, no appeal lies
against that Court’s finding that
it was indeed the case.
[8] Mr
Kitcher testified that Mr Sebogo’s gate was not always kept
closed which “suffered the
dogs to be free”, (as the
saying goes). On 08 November 2012, following a complaint concerning
the dogs, Mr George Frederic
Enslin, the Centre Coordinator: Staff
Support for correctional services, directed a letter dated 05
November 2012 to Mr Sebogo
on behalf of Mr Van Wyk, the head of the
correctional facility, in which he was instructed to keep the dogs
inside his yard or
to discard them because they had been roaming
around the complex, overturned rubbish bins, stormed officials, and
caused disturbance
with their incessant nocturnal barking. The
letter further records:
‘
Please
keep in mind that domestic animals must be inoculated on a regular
basis to prevent the outbreak of rabies and that if an
animal attacks
a person, the owner is liable for civil action.’
[9] Five
months later, on 03 April 2013, Mr Sebogo’s dogs bit 20 years
old Mr Cheslyn Snykop on the
left arm. Ms Veronica Snykop, Cheslyn’s
mother, reported the incident to Mr Morolong, the Operational Support
of the department.
However, the issue was resolved between Mr Sebogo
and Cheslyn’s parents.
[10] A further four
months down the line, on 09 August 2013 at approximately 23h30, close
to the fenced gate of the
correctional facility, while Mr Kitcher was
on his way to report for night duty Mr Sebogo’s three dogs
stormed him. He tried
to calm them down but Tiger and Sissy mauled
his upper leg and arm. In an attempt to escape he fell and broke both
his wrists whereupon
he kept still for a while which caused the dogs
to retreat. He was hospitalised and was off duty for a period of a
month following
the attack. Mr Enslin instructed Mr Sebogo on the
morning following the vicious attack to remove his dogs from the
premises. The
dogs were later put down.
The judgment of the Court a
quo
[11] The Court
a
quo
reasoned that the Minister had a legal duty but failed to act
reasonably in order to prevent the repetition of the occurrence that
followed the warning issued by Mr Enslin on 05/08 November 2012. The
Court found the existence of such a legal duty on the following
factual basis: The Minister was the owner of the property or in
control thereof; the Minister had authority to decide which employees
were allocated houses on the “married quarters”; on 05
November 2012 the Minister, through Mr Enslin, had proactively
responded to a report on the unruly behaviour of Mr Sebogo’s
dogs by directing a letter to Mr Sebogo in which he commanded
him to
keep his dogs confined or to discard them. In so doing, the Court
held, the Minister assumed responsibility. The Court further
found
that the Minister omitted to take positive steps notwithstanding that
he had knowledge that the dogs also attacked Cheslyn
Snykop. As
already alluded to, the Court found both the Minister and Mr Sebogo
jointly and severally liable for all damages as
Mr Kitcher would be
able to prove.
The appeal
[12] The grounds of
appeal are that the Court
a quo
erred in finding on the facts
and the law that:
12.1
the Minister was burdened with a legal duty to take reasonable steps
to prevent Mr Sebogo’s
dogs from attacking and injuring Mr
Kitcher;
12.2
the Minister acted unlawfully and negligently;
12.3
the alleged
ommissio
by the Minister attracted liability in
view of moral indignation and general sense of the community;
12.4
the Minister assumed a legal duty by writing a letter to Mr Sebogo on
05 November 2012;
12.5
the Minister’s failure to act during April 2013 to prevent a
repetition of an occurrence
of an event of 05 November 2012, after
the incident involving Ms Snykop’s son had been reported to
him, was unreasonable.
The
discussion
[13] The overriding
question for determination is whether the legal convictions of the
community required the Minister
through his functionaries to exercise
control over the dogs that belonged to one of his employees, Mr
Sebogo, and to prevent them
from attacking and injuring Mr Kitcher.
[14] Mr Kitcher’s
claim against the Minister is based on omission. Liability follows
only if the omission was
in fact wrongful, and this will be the case
only if a
legal
duty
rested on
the Minister to act positively to prevent harm from occurring or
befalling the victim but he failed to comply with that duty.
[2]
The
element of wrongfulness constitutes a fundamental and distinct
requisite for delictual liability.
[3]
A
court’s decision on whether conduct is wrongful or not is a
conclusion of law drawn on a case-by-case basis from the
facts
before it.
[4]
The
question is whether the defendant’s conduct is wrongful against
the plaintiff and in terms of the consequences
that followed.
In
Za v Smith and
another
[5]
the SCA dealt with the most
recent jurisprudence on the element of wrongfulness as follows:
'The
import of wrongfulness in the province of delict – and
particularly with reference to delictual liability for omissions
and
pure economic loss – has been formulated, both by the
Constitutional Court and in this court on numerous occasions
recently…
In the most recent of these expositions by the
Constitutional Court in
Country
Cloud Trading CC v MEC Department of Infrastructure Development
[2015
(1) SA 1(CC)
paras 20-21] Khampepe J explained the position as
follows:
"Wrongfulness
is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm
demands the imposition
of liability or, conversely, whether "the social, economic and
other costs are just too high to justify
the use of the law of delict
for the resolution of the particular issue".
Wrongfulness typically acts as a brake on liability,
particularly in areas of the law of delict where it is undesirable
and overly burdensome to impose liability.
Previously,
it was contentious what the wrongfulness enquiry entailed, but this
is no longer the case. The growing coherence in
this area of our law
is due in large part to decisions of the Supreme Court of Appeal over
the last decade. Endorsing these developments,
this court in
Loureiro
[
Loureiro
v Imvula Quality Protection (Pty) Ltd
[2014]
ZACC 4
;
2014 (3) SA 394
(CC) para 53]
recently
articulated that the wrongfulness enquiry focuses on – "the
[harm-causing] conduct and goes to whether
the policy and legal
convictions of the community, constitutionally understood, regard it
as acceptable. It is based on the duty
not to cause harm –
indeed to respect rights – and questions the reasonableness of
imposing liability
."
The
statement that harm-causing conduct is wrongful expresses the
conclusion that public or legal policy considerations require
that
the conduct, if paired with fault, is actionable. And if conduct is
not wrongful, the intention is to convey the converse:
"that
public or legal policy considerations determine that there should be
no liability; that the potential defendant should
not be subjected to
a claim for damages", notwithstanding his or her fault."
With
reference to the criterion for wrongfulness referred to in
Loureiro
,
as to whether it would be reasonable to impose liability on the
defendant, the Constitutional Court sounded the following note
of
caution in
Le
Roux v Dey
[
Le
Roux v Dey (Freedom of Expression Institute and Restorative Justice
Centre as amici curiae
)
[2011] ZACC 4
;
2011 (3) SA 274
(CC) para 122]:
"
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict:
(a)
the
criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable to
impose liability on a defendant for the damages flowing
from specific
conduct; and
(b)
that
the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms
.
Incidentally, to avoid confusion it should be borne in mind that,
what is meant by reasonableness in the context of wrongfulness
has
nothing to do with the reasonableness of the defendant's conduct, but
it concerns the reasonableness of imposing liability
on the defendant
for the harm resulting from that conduct."'
(My
own emphasis)
[15] Ms Erasmus, for the
appellant, argued that the legal conviction of the community would
not demand a duty to act on the
part of the Minister prior to the
vicious attack in issue because no one had been bitten by dogs by 05
November 2012. In respect
of the second incident of April 2013 she
contended that the dispute had been amicably resolved between the
Snykops and Mr Sebogo.
In any event, she argued, during an unrelated
incident of April 2013, in which Mr Sebogo had filed a complaint
against one of the
employees for having fired an Airgun at his dogs
Mr Kitcher attested to an affidavit in which he intimated that he had
no issues
with Sebogo’s dogs. She further contended that the
legal conviction of the community would not impose a legal duty on
the
Minister in the circumstances where Mr Sebogo had been provided
with the means to exert control over his dogs but failed to utilise
those means appropriately.
[16] The Bill of
Rights entrenches the rights to life, human dignity and freedom
and security of the person.
[6]
There is a duty imposed on the
State and all of its organs not to perform any act that infringes
these rights.
[7]
These constitutional imperatives
would ordinarily place a legal duty on the Minister to act. But even
more compelling in this case
is the employment relationship between
the Minister and his employees who are at loggerheads. In
Minister
of Safety and Security v Carmichele
[8]
the Court dealt with the
requirement of a special relationship as follows:
‘
Likewise,
the requirement of a special relationship (which is in my view
just another label for proximity) is not essential
for
wrongfulness. However, if there is in fact some connecting factor
between the plaintiff and the defendant, it is more likely
that in
the case where the defendant is an individual the breach of a duty
might arise; and in the case where the defendant is
the State it is
less likely that there will be any deviation from the norm of
accountability that the Constitution imposes.’
[17] The 10 family
quarters fall within the Minister’s administration and control.
The head of the correctional
centre directed the letter dated 05
November 2012 to Mr Sebogo when the first incidents were reported
concerning the dogs to,
inter alia
, keep the dogs inside his
erf or to discard them. This was indicative thereof that Mr Sebogo
had failed to confine his dogs as
required. When the second incident
occurred, the attack on Mr Snykop, some internal investigation was
conducted. Ms Snykop
deposed to an affidavit because the dogs
were not removed from the terrain. The details of how this complaint
was dealt with internally
are very sketchy. It matters not that the
Snykops and Mr Sebogo privately resolved their grievance. The key
issue here is that
the Minister had authority over Mr Sebogo who had
failed to heed his previous warning to keep his vicious dogs in his
gated property
or to dispose of them. Over a period of four months
after the dogs had charged at Mr Snykop the Minister failed to order
Mr Sebogo
to remove the dogs from the premises. The Minister
appreciated the risk that the dogs could attack and injure the
residents
or visitors to the complex. Under these circumstances the
legal convictions of the community would impose a legal duty on the
Minister
to prevent Mr Kitcher or those similarly circumstanced from
being harmed by the dogs.
[18] In
Minister
of Safety and Security v Van Duivenboden
[9]
the
Supreme Court of Appeal held:
‘
[12]
… A negligent omission is unlawful only if it occurs in
circumstances that the law regards as sufficient to give
rise to a
legal duty to avoid negligently causing harm. It is important to keep
that concept quite separate from the concept of
fault. Where the law
recognises the existence of a legal duty it does not follow that an
omission will necessarily attract liability
- it will attract
liability only if the omission was also culpable as determined by the
application of the separate test that has
consistently been applied
by this court in
Kruger
v Coetzee
[1966
(2) SA 428
(A) at 430 E – F], namely whether a reasonable
person in the position of the defendant would not only have foreseen
the harm
but would also have acted to avert it.’
[19] Ms Erasmus
argued that the harm was not foreseeable as the Minister had provided
fenced properties to the residents
who were required and had been
instructed to confine their dogs within their gated erven.
[20] The difficulty
with this submission is that on 05 November 2012 it was apparent to
the Minister and his functionaries
that the dogs had been storming
officials and inmates and generally causing a disturbance in the
neighbourhood. It was axiomatic
that Mr Sebogo was not confining his
dogs to his premises. Regard being had to the two preceding separate
incidents involving these
dogs, already discussed, the conduct of
the Minister fell short of the conduct of the notional
reasonable person. I am of
the view that the Minister must have
foreseen the reasonable possibility of the dogs attacking a resident
of or visitor to the
precinct, like Mr Kitcher.
[21] The next enquiry
is whether the Minister should have taken reasonable steps to guard
against the dogs’ attack.
In
Cape
Metropolitan Council v Graham
[10]
the
Court said:
‘
Turning
to the question of negligence, it is now well established that
whether in any particular case the precautions taken to guard
against
foreseeable harm can be regarded as reasonable or not depends on a
consideration of all the relevant circumstances
and involves a
value judgment which is to be made by balancing various competing
considerations. These would ordinarily be
'(a)
the degree or extent of the risk created by the actor's conduct; (b)
the gravity of the possible consequences if the risk of
harm
materialises; (c) the utility of the actor's conduct; and (d) the
burden of eliminating the risk of harm'.
…
If
a reasonable person in the position of the defendant would have done
no more than was actually done, there is, of course, no
negligence.’
[22] The facts speak
for themselves in respect of the gravity of the consequences if the
dogs attacked a resident of
or visitor to the family units. With
regard to the utility of the actor's conduct and the burden of
eliminating the risk of harm
Joubert, LAWSA, second edition, Vol 8
part 1 para 122 at p213 states:
‘
In
general the magnitude of the risk must be balanced against the
utility of the conduct and the difficulty, expense or other
disadvantage
of desisting from the conduct or taking a particular
precaution. If the magnitude of the risk outweighs the utility
of the
conduct, the reasonable person would take measures to prevent
the occurrence of harm; if the actor failed to take such measures
he
or she acted negligently. On the other hand, if the burden of
eliminating a risk of harm outweighs the magnitude of the
risk, the
reasonable person would not take any steps to prevent the occurrence
of the foreseeable harm..’
[23] The Minister and
his functionaries knew that Mr Sebogo’s dogs had been on the
loose around the family units
on numerous occasions. On his own
version Mr Enslin says upon receipt of Ms Snykop’s complaint he
cannot remember if he relayed
the complaint to the head of the
correctional facility but went on to say “
I would have
reported it.”
He conceded that on the basis of the report
that the dogs had attacked Mr Cheslyn Snykop the head ought to have
instructed Mr Sebogo
“
to get rid”
of the dogs.
[24] The ultimatum
given to Mr Sebogo following the attack on Mr Kitcher, that either he
had to leave the complex or
his dogs should, was too little and came
too late. It was clear at that stage that the dogs had the
propensity for storming
officials and or residents of the family
units. This would have prevented the dogs from straying onto the
streets and mauling Mr
Kitcher. Such steps would have been reasonable
and would not have involved much extra cost or disbursement but would
certainly
not have imposed a financial burden on the Minister. The
failure to give instruction to remove the dogs from the premises was
unreasonable
and negligent.
[25] The Court
a
quo
correctly concluded that the Minister breached his legal duty
towards Mr Kitcher in a wrongful and negligent manner and therefore
liable to make good the damage, as Mr Kitcher may be able to prove,
jointly and severally with Mr Sebogo. It follows that the appeal
must
fail.
[26] What remains is
the questions of costs of the proceedings of 17 August 2020 when the
appeal had been set down but
could not be disposed of due to the
incomplete record that had been filed. We directed the parties to
file supplementary heads
addressing the issue of wasted costs
occasioned by the postponement.
[27] The argument is
made in the Minister’s heads, which ought to have been
contained in an affidavit and placed
before us in terms of the rules,
that the registrar had failed to place three complete sets of record
before the Court when she had been duly served
. Ms Erasmus
submitted that neither party is to blame for the aborted proceedings
of 17 August 2020. In any event, she urged, the
costs concerned do
not fall within the ambit of wasted costs because the parties agreed,
subject to the Court’s directive,
that the appeal be disposed
of on paper and thereby eliminating additional costs of appearance
for oral argument. She urged for
no order as to costs alternatively,
the costs of the day be costs in the appeal.
[28] Mr Botha, for Mr
Kitcher, does not make common cause with the Minister that the
registrar defaulted in placing
the complete set of the record before
the Court. Like the Minister, Mr Kitcher did not verify his
allegation by deposing to an
affidavit. The appeal was initially set
down for hearing on 20 April 2020 but could not be heard due to the
declaration of the
National State of Disaster and the subsequent
National lockdown. Mr Botha submitted that at least two volumes of
the record are
date-stamped 24 April 2019 while others are dated 12
March 2020. He argued that the state attorneys had ample time, prior
to the
National Lockdown, effective from 25 July 2019, the date of
set down, to ensure that the record was in order. Instead they
presented
the record in a slovenly fashion. Mr Botha contended that
the Minister is to blame for the postponement and the wasted costs
occasioned
thereby. Absent any order as to these costs Mr Kitcher
would have to pay his legal representatives out of his own pocket for
services
rendered on 17 August 2020, so the argument ran.
[29] Rule 49(7) of
the Uniform Rules of this Court provides:
‘
(7)
(a)
At
the same time as the application for a date for the hearing of an
appeal in terms of subrule (6)
(a)
of
this rule the appellant shall file with the registrar three copies of
the record on appeal and shall furnish two copies to the
respondent.
The registrar shall further be provided with a complete index and
copies of all papers, documents and exhibits in the
case, except
formal and immaterial documents: Provided that such omissions shall
be referred to in the said index. If the necessary
copies of the
record are not ready at that stage, the registrar may accept an
application for a date of hearing without the necessary
copies if—
(i) the
application is accompanied by a written agreement between the parties
that the copies of the record may be handed
in late; or
(ii) failing
such agreement, the appellant delivers an application together with
an affidavit in which the reasons for his
omission to hand in the
copies of the record in time are set out and in which is indicated
that an application for condonation
of the omission will be made at
the hearing of the appeal.
(b)
The
two copies of the record to be served on the respondent shall be
served at the same time as the filing of the aforementioned
three
copies with the registrar.
(c)
After
delivery of the copies of the record, the registrar of the court that
is to hear the appeal or cross-appeal shall assign a
date for the
hearing of the appeal or for the application for condonation and
appeal, as the case may be, and shall set the appeal
down for hearing
on the said date and shall give the parties at least twenty days’
notice in writing of the date so assigned.
(d)
If
the party who applied for a date for the hearing of the appeal
neglects or fails to file or deliver the said copies of the record
within 40 days after the acceptance by the registrar of the
application for a date of hearing in terms of subrule (7)
(a)
the
other party may approach the court for an order that the application
has lapsed.’
[30] The obligation
to prepare and file the complete record of appeal falls squarely on
the appellant’s attorneys.
There was noncompliance with Rule
49(7). It is concerning that some of the records were filed on a date
after the initial set down
of the appeal. It may well be that by 17
August 2020, the second set down date, the records had been filed
with the registrar.
However, it is clear that on that date, despite
the alleged failure by the registrar to place all records before the
Court, the
appeal was not ripe for hearing. This is so because the
index to most of the volumes of the record are dated 24 August 2020,
four
days preceding the date in respect of which the appeal would
have been heard.
[31] To borrow from
Colman J in
Dinath v
Breedt
[11]
an attorney who presents his/her
appeal record in so slipshod a manner exposes his client to the
risk of having his appeal
struck off the roll with costs. In the
premise the appellant is to pay the wasted costs occasioned by the
postponement of 17 August
2020.
I
make the following order.
Order:
1.
The appeal is dismissed.
2.
The Minister of Justice and Correctional Services, the
appellant, is to pay Mr Karl Kitcher’s, the first respondent’s,
wasted costs occasioned by the postponement of 17 August 2020; the
costs of this appeal; and the costs of the application for leave
to
appeal.
Phatshoane ADJP
I concur
Mamosebo J
I concur
Van Tonder AJ
APPEARANCES:
For the
Appellant:
Adv S.L Erasmus
Instructed by State Attorneys
For
the First Respondent
:
Adv C.H Botha
Instructed
by Elliot Maris Wilmans & Hay
[1]
South
African Railways and Harbours v Edwards
1930
AD 3
at 9-10.
[2]
Bergivier
Municipality v Van Ryn Beck
2019
(4) SA 127
(SCA) at 140 para 43.
[3]
Sea
Harvest Corporation
(
Pty
)
Ltd
v Duncan Dock Cold Storage
(
Pty
)
Ltd
2000
1 All SA 128
(SCA)
par
19
[4]
Mabaso
v Felix
1981
2 All SA 306
(A)
;
1981 3 SA 865
(A)
875.
[5]
Za
v Smith and Another
[2015]
ZASCA 75
;
2015 (4) SA 574
(SCA) paras 15 and 16.
[6]
See s 10, 11, 12 of the
Constitution of the Republic of South Africa Act 108 of 1996.
[7]
Carmichele
v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at 957 para 44.
[8]
2004
(3) SA 305 (SCA).
[9]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) ([2002]
3 All SA 741
;
[2002] ZASCA 79)
at 441E –
442B.
[10]
2001 (1)
SA 1197
(SCA) at 1203-1204 para 7.
[11]
1966 (3) SA 712
(T) at 718G.