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[2021] ZANCHC 12
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Minister of Justice and Correctional Services v Kitcher and Another (874/2019) [2021] ZANCHC 12 (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 Sebago 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 Sebago 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 Sebago, 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 MEG
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
lmvula
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 Sebago privately resolved their
grievance. The key issue here is that the Minister
had authority over
Mr Sebago 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 Sebago 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 Sebago 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 Jin
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); 19813 SA 865
(A)
875.
[5]
Za
v Smith and Another
(2015]
ZASCA 75;
2015 (4)
SA
574
(SCA) paras 15 and 16.
[6]
6 Sees 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
(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 - 4428.
[10]
2001 (1) SA 1197
(SCA)
at
1203-1204
para
7.
[11]
1966 (3) SA 712
(T) at 718G.