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[2021] ZAKZPHC 30
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Schwartz v Strauss Daly Incorporated (1374/17P) [2021] ZAKZPHC 30 (3 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 1374/17P
In
the matter between:
ALEXANDER
NIKOLAEVITCH
SCHWARTZ PLAINTIFF
and
STRAUSS
DALY
INCORPORATED DEFENDANT
ORDER
The
plaintiff
'
s
claim is dismissed with costs
,
such
costs to
include
those occasioned
by
the employment of two counsel.
JUDGMENT
Henriques
J
Introduction
[1]
'Neither a borrower nor a lender be
'
are prophetic words that should resonate
with the parties in the current action
.
The plaintiff is a Russian national and
a businessman who instituted action
against the
defendant
,
a
firm
of
attorneys
practising under the name and style of Strauss Daly Incorporated
,
carrying on business at 9
t
h
Floo
r
,
Strauss
Daly
Plac
e
,
41
Richefond Circle
,
Ridgeside
Office
Par
k
,
Umhlang
a
,
KwaZulu-Natal.
The
cause of action and the pleadings
[2]
The particulars of claim alleges that on
or about 25 February 2015
,
the
plaintiff
personally
concluded an agreement of mandate with the defendant
,
represented by its director Mr Andile Z
Khoza (Mr Khoza) which was partly oral and confirmed in writing
by
ema
i
ls
exchanged between the
plaintiff
and
Mr
Khoza
,
through
his
secretary
,
Ms
Charlene
Budhoo
(Ms
Budhoo)
.
[3]
The plaintiff pleads that the express
,
alternatively
implied
,
alternatively
tacit
terms of the agreement were that he would make payment of the sum of
R1 million into the defendant's trust account
,
under file reference Khoza/CB/ZUM248
.
1
.
The
defendant would use these funds to make
a payment to Mr K Zuma
(Mr
Zuma)
as a short term loan, provided that the defendant complied with
the
following requirements
:
(a)
the defendant arranged for Mr Zuma to
execute a written document acknowledging the said loan and
undertaking to repay the said sum
,
together with interest thereon at 2%
above prime by no later than 31 March 2015;
(b)
the defendant was to arrange for a
surety undertaking executed by Kapital Mindz (Pty) Ltd
('Kapital
'
)
under the authority of a resolution by
Kapital
,
standing
as surety for the loan to Mr Zuma
;
(c)
an authority
by Kapital in
writing
authorising the defendant
to repay
the debt
out
of funds held on behalf of Kapital
;
(d)
the defendant
would
not
release
the
funds
paid
by
the
plaintiff
into
its
trust
account until the
requirements
in paragraphs
(a)
to
(c)
had
been complied with
;
(e)
the defendant would exercise a duty of
care and competence towards the
plaintiff and
;
(f)
the defendant would deal with the
plaintiff with the utmost good faith
.
[4]
Pursuant to the agreement, the plaintiff
deposited the amount of R1
million
into the defendant's trust account
,
held
by Absa Bank
,
on
27 February 2015. In breach of the agreement, the defendant
,
represented by Mr Khoza, paid the funds
out to a person or persons unknown to the plaintiff
,
without complying with the requirements
set out
in
paragraph
3 above, and has not arranged for repayment of the money on the due
date
.
[5]
The plaintiff gave no authority for the
funds to be paid out at any time. The defendant now denies receiving
any mandate from the
plaintiff
,
and
despite demand for the return of the funds deposited
,
which repayment date the plaintiff
pleads was 31
March
2015, the defendant has failed to effect payment.
[6]
In the alternative, the plaintiff pleads
that as a consequence of the defendant's
breach, he has suffered damages in
the said sum of R1
million
,
plus
interest, and
does not know who the monies were paid
to
,
or if
it was paid to a third party, and he is unable to recover the monies
from any other person.
[7]
The defendant has denied having a
mandate from plaintiff
in
respect
of
the said
money. The
plaintiff pleads that the damages which
he suffered
is
a
natural and direct consequence of the
defendant's breach of the agreement alternatively were
,
or are presumed to have been, within the
contemplation of the parties at the time of
the
conclusion of the agreement
,
as being the probable result of the
breach.
[8]
In
the
further alternative
,
the
plaintiff pleads that in
the
event of the court finding that no
mandate or contract existed between himself and the defendant
,
then the deposit of the R1 million into
the defendant's trust account on 27 February 2015 created a duty of
care on the part of the
defendant
,
owed
to
him for
the protection and
proper
use of the deposit and the plaintiff's rights thereto. The defendant
breached its
duty
of
care
in
that it failed to protect the deposit, failed to attend to the proper
use thereof and
failed
to
protect
the
plaintiff
'
s
rights
thereto
and
the
defendant appropriated the amount
without the plaintiff's
consent
or
authority. In doing so
,
the
defendant's conduct was unlawful or negligent and was a breach of its
duty of
care
.
The
defendant's plea
[9]
The defendant in
its
plea admits that R1 million was paid
into
its
trust
account
,
but avers that this was pursuant to an
agreement between Mr Zuma
,
represented
by Mr Vuyo Babalo Mkhize (Mr Mkhize) and the plaintiff
.
The defendant pleads further that it
acted on the instructions of Mr Mkhize in dealing with the money. It
denies that a
contract
of
mandate
came
into
existence between the
plaintiff and
itself
,
and
it
further
denies that it owed the plaintiff a duty of care
.
[10]
The defendant in its plea relies on a series of emails exchanged
between the parties
,
setting
out the sequence of events and written exchanges between the
defendant
,
the
plaintiff
,
Mr
Mkhize and the plaintiff's attorneys of
record.
It avers that the documents were annexed
to demonstrate that
it
did
not ignore any responsibility which attached to it as a firm of
attorneys in responding to queries
,
and
such documents are to be read in the context of all the documents and
circumstances of the dispute.
Replication
[11]
The plaintiff filed a replication to the
defendant's plea
.
In
response to the defendant's denial that
there was any agreement or instructions
which emanated from him, the plaintiff pleads that the exchange of
emails between himself
and Mr Khoza, through Mr Khoza
'
s
secretary
,
Ms
Bhudoo
,
which
are annexed as annexure
'A
'
to the
particulars of claim
,
and annexure
'
B
'
to the plea
,
constituted a representation by the
defendant
,
expressly
or impliedly
,
that
there was an agreement of mandate and that the conditions as set out
by the plaintiff were accepted.
[12]
The plaintiff pleads that this is a
representation by silence or by the defendant not responding to an
email which had been sent by
him
and
received by Ms Budhoo. The plaintiff acted on this email exchange and
consequently paid money over as directed, to
his
detriment. In
addition
,
the
plaintiff pleads that
the
defendant
is
estopped from
denying that
the
parties
had
an
agreement in
relation
to
the
payment of
the
money
which he made and its disposal by the
defendant
,
and
further that he gave an instruction to
the defendant which the defendant had
agreed to abide by.
Issues
[13]
The issues to be determined are the
following:
(a)
Was an agreement of mandate concluded
between the parties?
(b)
If no
agreement of
mandate came
into
existence
,
has
the
plaintiff proved a claim
in
delict
,
alternatively that the
defendant owed him a duty of care and
was negligent in discharging such duty?
(c)
Is the defendant estopped from denying
that an agreement of mandate was concluded?
[14]
Of
relevance to the issues for determination and central to an
understanding of
the
evidence
,
are
the emails exchanged between the plaintiff
,
Mr
Khoza
'
s
secretary Ms Budhoo on behalf of the defendant
,
and
Mr Mkhize
.
These
emails formed part of
a
core bundle
,
[1]
which was handed in
during
the course of the trial.
[15]
It warrants mentioning at this stage
that the main protagonists in the dispute are the plaintiff
,
Mr Mkhize
,
Mr Zuma, and Mr Khoza who interacted
with the plaintiff in his capacity as a director of the defendant. It
is common cause that the
defendant was the attorney of record for Mr
Zuma in a number of matters and legal fees were owing by Mr Zuma to
the defendant
,
hence
Mr Mkhize procuring the loan for Mr Zuma
from the plaintiff
.
[16]
It is also common cause between the
parties that the plaintiff paid R1 million into the defendant
'
s
trust account on 27 February 2015
,
which
payment was acknowledged by the defendant
,
and the money was appropriated as
follows
:
(a)
R900 000 was retained by the defendant
in respect of legal fees owing to the defendant by Mr Zuma
;
(b)
R100 000 was paid to Mr Mkhize for
brokering the deal
;
(c)
The plaintiff
'
s
conditions as set out in the email of 25 February 2015 were not
complied with
;
(d)
R1 million has not been repaid to the
plaintiff
.
Emails
exchanged between the parties
[17]
The
defendant relies on an email sent to it by Mr Mkhize on 24 February
2015
at
8h13
pm
.
[2]
It
is
common cause that
this
email
was sent to Mr Khoza's email address
and
copied to
the
plaintiff
.
[18]
This
email
dated
24
February
2015
from
Mr
Mkhize
to
Mr
Khoza
and
the plaintiff
reads
as follows
:
'
Subject:R1
Million Loan From Alexander Schwartz To Cover Khulubuse Zuma
'
s
Legal Fees
!
Dear Mr Khoza
,
This
serves to confirm that Mr Alexander Schwartz has agreed to advance Mr
Khulubuse Zuma an amount of R1million to
c
over
h
i
s legal
fees on the Aurora Empowerment Systems matter
.
The
terms of this loan agreement are that:
1.
Mr Schwartz will pay the amount of R1
million into trust account
(
Strauss
Daly Trust
,
Absa
Current Account Number 404344245
7
,
Reference
Number ZUMA 24
8
.
1)
within
the
next 24
(
twenty
four-
)
hours
;;
2.
The loan will earn interest at a rate of
Prime plus 2 per annum
;
3.
The loan will be repaid before 31 March
2015
,
failing
wh
ic
h you
are to repay it out of the funds to be deposited into your trust
account by Mr Barend Petersen of Macrovest 147
(
Pty)
Ltd
,
which
funds will be the commission payment due to Kapital Mindz
(
Pty)
Ltd unde
r
its
mandate agreement with Macrovest (the mandate to help Macrovest ra
i
se
funding in the financial market to purchase a 51
%
equity stake
i
n
Evraz Highveld Steel and Vanadium Ltd as well as secure a working
c
apitalfacility
for the company
)
:
4.
You will
not disburse any monies from
the Macrovest payment before ensur
i
ng
that Mr
Schwartz
'
s
loan has been repaid in
full.
Please
confirm acceptance of
the
above terms as
they relate to you at your
earliest
convenience
.
Kind
Regards
,
Vuyo
Mkhize
'
[19]
The
response
to Mr Mkhize
'
s
email was sent by Ms Charlene Budhoo to the plaintiff as well as Mr
Mkhi
z
e
on 25 February 2015 at 06h56
,
[3]
[4]
electronically
signed by Mr Khoza. It read as follows
:
'
Subject:
R1
Million Loan From Alexander Schwartz To Cover Khulubuse Zuma
'
s
Legal Fees!
Dear
Sirs
,
We
refer to your email dated 24
t
h
February 2015 and confirm that we shall
abide by the terms
thereof
.
Please
note that the payment must be made into our Trust Account bearing the
following details:
Account
Name: Strauss Daly Trust Account
Bank: ABSA
Account
Number: 404 344 2457
Branch: ABSA
Business Centre
Branch
Code: 632005
File
Reference: Khoza/cb/ZUM248.1
We
would appreciate proof of EFT payment by close of business today
(25
th
February 2015)
.
Would
you
kindly
provide us with Mr Alexander
'
s
banking details into which the
refund
must be paid
.
'
[20]
The
significant
email
is
the one
sent by the
plaintiff
on 25 February
2015
at
01h26 pm to Ms Budhoo and copied to Mr
Mkhize. It reads as
follows:
'
Subject:
R1
Million
Loan
From
Alexander Schwartz To
Cover Khulubuse Zuma's Legal Fees!
Dear
Mr Khoza
,
Due
that Mr Zuma is not noted for their prompt payment of debts due. I
suggest you ensure Kapital Mindz
(if
the
money seemingly paid into Strauss Daly is there and belongs to
Kapital) to sign a written surety to underwrite Zuma
'
s
debt as well as obtain a resolution of Kapital Mindz to sign the
surety and authorise Strauss Daly to discharge the debt in the
event
of non
payment.
Basically
the same kind of confirmation
Mr Vuyo have
requested
on his initiative
email.
I
would hesitate to accept an e-mail from Mr
.
Vuyo not on the Company
letterhead
and not accompanied by proper Company
resolution
.
Could
you
kindly
help
to draft the require and I
will
be in position to release the funds within next 24 hours prompt.
Best
Regards
,
Alex
Schwartz
'
[21]
The
plaintiff ind
i
cated
that his email was premised on the advice from his attorney, Mr
Roy
Wolfson
,
received
earlier on
that
day
[5]
which
was recorded in
an
email
that
read as follows
:
'
Subject:
R1 Million Loan From Ale
x
ander
Schwartz To Cover Khulubuse Zuma
'
s
Legal Fees
!
Alex
Some
of the Zuma family are not noted for their prompt payment of debts
due.
I
suggest you ensure Kapital Mlndz
(
if
the money seemingly paid into Strauss Daly is there and belongs to
Kapital) to sign a written surety to underwrite Zuma
'
s
debt as well as obtain a
resolution
of Kapital Mindz
to
s
i
gn the
surety and authorise Strauss Daly to discharge the debt
in the event of non-payment by Zuma
.
I
would hesitate to accept an e-ma
i
l
from the chairman not on the Company letterhead and not accompanied
by a proper Company resolution
.'
Evidence
[22]
It is against the background of these
correspondences that the evidence presented at trial must be
analysed
.
I
propose to summarise the salient features thereof
.
[23]
The plaintiff who has permanently
resided in South Africa since 1998
,
is
a businessman involved in oil logistics and the manufacturing of
lubricants and is a director of
Lukoil
,
the largest private oil company in the
world. He knew Mr Zuma
,
who
was introduced to
him
by
Mr Mkhize
,
as
they were involved in a number of
commercial
ventures.
He testified that Luko
i
l
had a need for a storage facility near Maydon Wharf
and required the co-operation of
Transnet to do so
.
Mr
Mkhize had indicated to him that Mr Zuma could assist in th
i
s
regard
.
[24]
Discussions had taken place between him
and Mr Mkhize before he arrived at the offices of the defendant
,
as Mr Mkhize wanted him to provide a
short term loan to
Mr
Zuma for the payment of his legal fees
.
He confirmed that at no stage did he
meet
with
Mr Zuma to discuss the loan
,
and
all his discussions relating to
the
loan occurred between
himself
and Mr
Mkhize
.
He wanted
the monies
to be paid into
a reputable
attorney
'
s
firm
'
s
trust account
,
as
he was uncomfortable with Mr Mkhize
'
s
suggestion
that
the monies be paid into h
i
s
account.
[25]
Mr Mkhize informed him that he knew an
attorney at Strauss Daly
,
Mr
Khoza
,
and
would make the necessary arrangements for them to meet. He testified
that prior
to
send
i
ng the
email of 25 February 2015
,
he
had attended at the offices of the defendant with Mr Mkhize for a
meeting with Mr Khoza
,
which
Mr Mkh
i
ze
had arranged
.
Such
meeting took place in the boardroom at the defendant's offices prior
to his email of 25 February
,
although
he was not certa
i
n
of the exact date
.
At
the meeting in the defendant's boardroom
,
Mr Khoza was
i
n
possession of a large file
,
and
Mr Khoza confirmed with him that he
,
the
pla
i
ntiff
,
agreed to advance the loan to Mr Zuma
.
[26]
The plaintiff testified that at such
meet
i
ng
,
he indicated to Mr Khoza and Mr Mkhize
that he had agreed to provide the loan
,
and would revert regarding his
conditions for providing the loan
,
although it had been agreed that this
was a short term loan to be repaid by 31 March 2015
.
[27]
The
plaintiff further testified that he had a discussion with his
attorney
,
Mr
Roy
Wulfso
n
,
subsequent
to the meet
i
ng
at the defendan
t
'
s
boardroo
m
,
and
was advised
in
relation
to the conditions that he should request in relation to the loan
.
Such
conditions were set out in an
email
from his attorney to him which was not discovered
,
and
was only made avai
l
able
to the defendant on the first day of trial. The defendant agreed to
this email being used during the course of the plaintiff's
evidence.
The plaintiff confirmed that the contents of Mr Wulfson
'
s
email
[6]
were
cut and pasted
i
n
the
email
which he had sent to the defendant.
[28]
The plaintiff testified that he required
an acknowledgement of debt o
r
an
admission of liability and suretysh
i
p
documents to be drafted by Strauss Daly which would then be checked
by him before he gave autho
r
ity
for the funds to be released
.
It
i
s common
cause that the defendant did not respond to this email received from
the
pla
i
ntiff
with his alleged conditions
.
[29]
Pursuant to such email
,
the plaintiff paid the monies into the
defendant
'
s
account which the
defendant
admitted to
receiving
via
email
on
27
February 2015 and the monies were
subsequently appropriated
.
The
plaintiff testified that he did not give
authority to Mr Khoza or to anyone at
the defendant to release the monies and that despite his email of 25
February 2015
,
no
documents were prepared by Mr Khoza or anyone at the defendant.
[30]
The plaintiff testified that the purpose
of the meeting
,
apart
from discussing the
loan
with Mr Khoza
,
was
also for him and Mr Mkhize to discuss a commercial venture.
The events precipitating the discussions
of the short term loan was that Mr Mkhize had invited the plaintiff
to a business launch
to discuss the plaintiff investing money in a
business called Evraz Highveld Steel and Vanadium Corporation
.
The plaintiff testified that he regarded
the loan as conditional upon him participating in the Evraz deal
,
although this is not recorded in his
email correspondence to the defendant or to
Mr Mkhize.
[31]
The plaintiff confirmed that when he
dispatched the email his expectation was that the documents would be
prepared and sent to him
by Mr Khoza
,
which he would
approve before he would authorise the
monies in trust being appropriated
.
He
confirmed that there was no response to his email of 25 February
2015
.
He
also indicated that the first time that he learnt that the legal fees
due by Mr Zuma related to the Aurora Empowerment Mines matter
,
was after he had seen the email
,
and although he knew the loan was for
legal fees
,
he
did not know the particulars of the matter to which it related
,
and this was never discussed between
him
,
Mr
Mkhize and
Mr
Khoza
.
[32]
He testified that what was discussed at
the meeting between himself and Mr Mkhize was that they
,
together with Mr Zuma
,
would involve themselves in the
commercial matter and form a new company which would purchase Evraz
Highveld Steel
'
s
company shares
.
He
was shown correspondence to the effect that monies were due to
Kapital (Mr Mkh
i
ze
'
s
company
)
from
a business deal involving Macrovest. The letter ment
i
oned
Mr Barend Peterson
,
and
although
he
had never met him in the
past,
he was aware of
the
discussions between Mr Mkhize and Mr
Peterson for a
company
to be formed in order for preferential shares to be purchased
therein
.
[33]
Evraz
was experiencing financial difficulties and it was a good time to
snatch up a bargain and
invest
and
rearrange the finances of Evraz. The loan which he was providing to
Mr Zuma was to facilitate his involvement in the new company
to be
formed
,
and
would be payable from his own personal funds
.
He
confirmed that paragraph 3 of Exhibit C
,
[7]
related
to the Macrovest matter
,
and
whilst at Mr Khoza
'
s
office
,
although
they did not d
i
scussth
i
s
deal or the formation of a new company
,
Mr
Khoza was in
possession
of
the
Macrovest file
which
he observed
,
although
he
did
not have an opportunity to see the contents of the file
.
The
purpose of the meeting at Mr Khoza
'
s
office was to facilitate the short term loan being granted
.
[34]
He confirmed that he did not authorise
Mr Khoza to give Mr Mkhize R100 000 for brokering the deal nor was he
aware that Mr Mkhize
was to receive such money. He assumed that if
the
documents
which he had requested
,
setting
out his conditions
,
were not provided
,
the
money
would be paid back into his personal account.
[35]
During cross-examinatio
,
nthe
plaintiff was interrogated as
to whether or
not the
meeting occurred in February 2015 as
alleged by him
.
It
was suggested to him that the defendant had no record of such
meeting
,
and
denied that the meeting took place
in
February 2015
.
The
defendant
'
s
version was that Mr Khoza had several meetings in
2014
,
and
that a meeting had occurred
in
December
2014 which was not in relation
to
the short term loan
,
but
in
relation
to
certain commercial ventures
.
[36]
In support of this
,
the defendant led the evidence of Ms
Charlene Bhudoo
,
Mr
Khoza
'
s
secretary who confirmed that all appointments or meetings which Mr
Khoza had were arranged by her and that there would be a note
thereof
either in the diary or in a file note.
She testified that as Mr Khoza
'
s
personal assistant for in excess of 23 years
,
she would have been aware of such a
meeting had it been arranged
.
Prior
to testifyin
g
,
she checked
the records to see if a meeting
had taken place
.
There was nothing
in the diaries for the year or the time
sheets and no file note in relation to the meeting between the
plaintiff
,
Mr
Mkhize and Mr Khoza
during
February 2015 at the
defendant
'
s
offices
.
[37]
She testified however that if Mr Mkhize
arrived at their offices unannounced with the plaintiff to meet with
Mr Khoza
,
and
the meeting was a short one, there may not have been a record of it
,
and she would not know of the meeting
and whom accompanied Mr Mkhize to such meeting
.
[38]
She confirmed that at the time all
emails which were exchanged between the plaintiff
,
Mr Mkhize and Mr Khoza arrived in her
email inbox
.
Her
practice was to print
the
emails and leave it on Mr Khoza
'
s
desk
,
alternatively
Mr Khoza would stand at
her
desk and dictate the responses
.
At
that point in time
,
he
did not have his own PC on his desk
,
and
would work from her desk
in
her presence.
[39]
During the cou
r
se
of the cross-examination of the plaintiff
,
he confirmed that the discussions and
the meetings in December 2014 between Mr Mkhize and Mr Khoza related
to securing a lease with
Transnet for the
property at the Mayden Wharf
.
Howeve
r,
he
clearly
recalls
the
meeting
in
February
2015.
He
disputed
that
no
mandate
was given and that the defendant was not his attorney
.
Howeve
,
r
during the
course
of cross-examination
,
he
confirmed that there were no discussions regarding fees which would
be charged by the defendant for the documents to be prepared
and
he further confirmed that he did not
follow up in relation to his requirements
as set out
in
the
email of 25 February 2015.
[40]
He was of the view that it was not
necessary to follow up as he perceived that as the defendant's
client
,
the
defendant would act
in
his
best interests and that monies would not
be paid out until his authority had been obtained
.
The plaintiff assumed that in the
absence of the documents being executed
,
the monies would be repaid to him
.
He testified that he only became aware
that monies had been disbursed
in
October 2016
,
although this part of his evidence was
not borne out by the documents and the
emails exchanged which he was referred
to during the course of cross-examination
.
[41]
He confirmed that in the email exchanges
and correspondence between the relevant parties
,
including his attorney Mr Roy Wulfson
,
Mr Mkhize had undertaken to
repay
the monies to him. He also confirmed that although he was advised
that no monies had been received from Macrovest
,
he was not personally aware of this
.
He testified that when the loan was not
repaid
,
he
had several interactions both via email
and in person with Mr Mkhize who assumed
responsibility to repay the monies
,
as
he
had
brokered the loan between the plaintiff
and Mr Zuma
.
[42]
He further confirmed that emails had
been exchanged between himself
,
Mr
Mkhize and
Mr
Khoza
in
relation
to
the
manner of
repayment
by Mr Mkhize but nothing
materialise
d
.
.
When
quest
i
oned
as
to
wh
y
,
if Mr
Mkhize was offering to repay
the
monies
,
he
did not insist on the documents being signed in order to secure the
repayment of the loan by Mr Mkhize
,
he
testified that as far as he was concerned, the
loan aspect ended on 31 March 2015
,
and Mr Mkhize was not making any
tangible offers to repay the loan
made
to
Mr Zuma
.
[43]
He confirmed
,
although disputed by the defendant
,
that when Mr Mkhize had
met him at a social function and
undertaken to repay the monies
,
Mr
Mkhize indicated
he
would pay it back at the dollar exchange rate equivalent as he
,
Mr Mkhize, was
aware that the plaintiff had utilised
his personal monies for the loan to Mr Zuma
.
The totality of the evidence as
summarised above is the conspectus against wh
i
ch
the
issues
must be
decided
.
Analysis
Contract
of mandate
[44]
The
relationship between an attorney and client is based on a contract of
mandate
,
and
such contract imposes fiduciary obligations on an attorney
.
An
attorney
owes
a duty of care towards the client
,
the
court
,
and
third parties although the nature of this duty has not been clearly
defined
.
[8]
The
scope of a mandate depends on its express
,
tacit
or implied terms
.
Attorneys
are mandated to keep a separate trust banking account in which
ownership of the money in the account vests in the bank
,
and
the attorney operates the account. An attorney into whose trust
account money is paid for an intended payment to a third party
or who
receives money
,
bears
a legal duty to deal with the money with great circumspectio
n.
[45]
In
circumstances where a party alleges negligence on the part of an
attorney
,
the
liability of an attorney to a client for damages claimed resulting
from such attorney's negligence
is
based
on a breach of the contract between the parties. An implied term of
a
given
mandate
is
that
such
attorney
will
exercise
the
skill
,
knowledge
and
diligence
expected of a reasonable practising attorney
.
Negligence
may be found in circumstances where an attorney committed an error of
judgment by failing to exercise the required skill,
knowledge and
diligence
.
To
succeed in a claim for negligence
,
the
plaintiff
must
allege and
prove
the
existence
of
a
mandate,
the breach of the
mandate
,
negligence
,
proof
of damages and that the damages were within the contemplation of
the
parties at the time the contract was concluded.
[9]
(46)
Lawsa
describes a mandate as
'
A
consensual contract between one party
,
the
mandator
,
and
another
,
the
mandatary
,
in
terms of which the mandatary undertakes to perform a mandate or
commission for the mandator
.
.
.
There
must hence be an agreement between the parties brought about by an
identifiable offer
,
in
the form of a request that the mandate in question be performed
,
and
an acceptance of
that
offer
,
in
the
sense of acceding to that
request
,
together
with
an
undertaking
to
carry out the mandate and to perform the various duties
imposed
by
it
.'
[10]
[47]
It is trite that an attorney
is
required
to exercise reasonable care and not absolute care
,
and
consequently
an
attorney is not absolutely
liable.
[11]
The
alleged mandate
[48]
The defendant's defence
is
essentially
that no contract of mandate or agreement came into existence between
itself and the plaintiff. In my view
,
the
plaintiff has not shown that an
agreement existed between himself and the defendant. It is patently
clear that
the
plaintiff agreed to
advance a
loan
to
Mr
Zuma
,
who
at
all
material
times was represented by Mr Mkhize
.
At all times, the plaintiff was aware
that Mr Mkhize was acting for a disclosed principal
,
Mr Zuma. It
is
not relevant
in
my view whether Mr Mkhize was acting for
a disclosed principal or not.
[49]
He acted on the instructions and advice
of his own attorney
,
Mr
Wulfson when
despatching
the email of 25 February 2015 with his conditions
,
and could not for a moment have thought
that the defendant was acting on his behalf
.
[50]
He came to be at the defendant's
offices
,
not
to peruse documents or discuss the Evraz deal or Macrovest monies
,
but rather as he was uncomfortable with
Mr Mkhize
'
s
suggestions that he should pay over the monies into Mr Mkhize
'
s
account. It
was
his insistence that the monies be paid into an attorney
'
s
trust account that
led
to
him being taken to the
defendant's
offices by Mr Mkhize
.
The
three of them
,
being
the plaintiff, Mr Mkhize and Mr Khoza, knew monies were due shortly
in relation to the Macrovest transaction, and it was anticipated
that
such monies would be paid prior to
the
repayment date of
the
loan to
Mr
Zuma.
[51]
In
my view
,
the
sequence of these emails is of crucial significance.
[12]
The
first in the series of emails is the email on 24 February 2015
(sent
at
8h13 pm) from Mr Mkhize to Mr Khoza and the plaintiff
.
Such
email records in unambiguous terms the subject matter of the loan,
and the terms of the loan agreement between Mr Zuma and the
plaintiff.
It is
instructive
to note the
concluding
paragraph wherein Mr Mkhize seeks
acceptance
from the defendant of the terms relating to the loan agreement. The
second
email
was
that of
25
February
2015
(06h56
am)
from Ms Bhudhoo to the plaintiff and Mr Mkhize
.
The
defendant records in such email that it will abide by the terms set
out in Mr Mkhize's email.
[52]
Subsequent
to this
,
is
the email of 25 February 2015
(11
h30
am) from the plaintiff's attorney
,
Mr
Wulfson to the plaintiff
,
wherein
the plaintiff was advised to obtain a written surety to underwrite Mr
Zuma's debt and a resolution from Kapital to sign as
surety
,
and
to authorise the defendant to discharge the debt in the event of
non-payment by Mr Zuma
.
Based
on such legal advice
,
the
plaintiff despatched the
email
of
25
February 2015 at
(01
h26
pm) to Ms Bhudhoo and Mr Mkhize
.
[53]
The
express terms of the emails are unambiguous and clear in its import.
Affording them
their
literal commercial businesslike
[13]
meaning
leads one
to
the
natural
conclusion that the defendant undertook in express terms to abide by
their client's instructions namely, that of Mr Mkhize
.
It
is common cause that the email despatched
by
the plaintiff on 25 February 2015 was not responded to
,
and
simply
ignored
by
the
defendant.
It
is
on
this
basis
that the defendant contends that
it
accepted
the terms as set out in
Mr
Mkhize
'
s
email
of
24
February
2015
,
and
no agreement of
mandate
came into existence between it and the plaintiff
.
[54]
The plaintiffs reliance on his email to
Ms Bhudoo and her email to Mr Mkhize and himself
,
as constituting a written confirmation
of the agreement of mandate as pleaded in paragraph 3 of the
particulars of claim
,
is
misdirected as the chronology and content of the emails clearly
indicates the defendant's election to abide by the terms of
the loan agreement as stipulated by Mr
Mkhize
,
and
not those by the
plaintiff.
[55]
The plaintiff could not advance any
reasonable explanation as to the reasons for effecting payment into
the defendant's trust account
on 27 February 2015
,
notwithstanding no response from the
defendant in relation to the plaintiff
'
s
preconditions for advancing the loan
.
The unconvincing response was an
expectation
that
the monies would be repaid to him if
the
preconditions of the loan were not
complied with
.
The
probabilities in relation to this aspect do not favour the plaintiff
,
as
the
sole purpose for paying the monies into the defendant's trust account
was as a result of the plaintiffs alleged discomfort in
paying the
monies into Mr Mkhize
'
s
account.
[56]
However
,
the
defendant indicates that
it
is
evident from the
email
exchange that it had agreed to act in
terms of the
email
sent
by Mr Mkhize, and that the monies were
to be used on behalf of Mr Zuma for his
fees
.
In
addition
,
in
the event of Mr Zuma not
repaying
the short term loan to the plaintiff
,
then the defendant would repay the loan
from funds which were to be paid to the defendant to the credit of
Kapital. Such funds
were
expected prior to the date upon which the short term loan to Mr Zuma
became due
.
This
,
the defendant submits, were the terms of
the agreement.
[57]
The
probable inference gleaned from the
plaintiff
'
s
evidence was that the terms
of the loan agreed to with Mr Mkhize did
not include the plaintiff
'
s
preconditions as set out in
his
email
,
which was akin to
an
afterthought based on his
attorney
,
Mr Wulfson
'
s
advices
.
It
is simply irreconcilable that the plaintiff, having the benefit of
his own attorney
,
would
not have paid the monies into his own attorney
'
s
trust account to satisfy the discomfort he expressed.
[58]
The plaintiff, as a further arrow in his
quiver
,
suggested
that the defendant's
non-response
to his email of 25 February 2015 must be construed as an act of
acquiescence
,
capable
of forming the basis of a mandate
.
The
court therefore has to cons
i
der
whether the silence by the defendant to the email of 25 February 2015
amounted to
an
acceptance?
[59]
The
author of
Christie
'
s
Law of Contract in South Africa
deals
with silence as
acceptanc
e
,
and
states as follow
s
::
[14]
'
Outside
of this legislat
i
on
,
silence may amount to acceptance of an
offer in circumstances that give rise to a
'
duty
to speak
'
,
if the offeree is not prepared to accept
the offer
.
Wessels
has been taken by the courts as authoritative
:
'
But
if
there
is a legal duty upon
me
to speak and
I refrain
from do
i
ng
so
,
the
Court will presume that I assented
.
It is to these cases that the ma
x
im
applies -
"
Qui
ta
c
et
consentire videtur
'.
Thus,
if a merchant writes to his constant correspondent that he will
forward to him certain goods at a certain price unless he hears
from
him to the contrary
,
and
the addressee
r
eceives
the
l
etter
but neglects to reply
,
the
Court may well consider that silence in such a case gives consent...
The course of dealing between such
merchants will legit
i
mately
lead the offeror to conclude that
his
correspondent would reply
i
n
case
he
rejected the offer
,
and
the Court will
infer
that if the offeree had not intended to accept he would have answered
that he did not want the goods
.
If,
therefore, from the business relationship between the offeror and the
offeree the Court finds
that
the
circumstances
are
such
that
the
offeree could reasonably and
fairly be expected to reply, then it may infer that by remaining
silent the offeree did in fact intend
to accept. The silence of the
offeree does not act as an estoppel for there is no legal duty to
reply to an offer: no action for
damages can be brought for not
replying. The silence
in
such a
case is
regarded as
circumstantial evidence of
an intention
to
accept
and the mere denial of the offeree that he had any such intention
will not be accepted in the face of the facts.'
(My
emphasis
.
)
[60]
Our
courts have had cause to
consider
whether a party
'
s
silence
amounts to
an
acceptance
of an agreement and the conclusion of a contract. In
McWilliams
v
First
Consolidated Holdings (Pty)
Ltd
[15]
the
court
had
to consider whether a party's failure to
respond
to a letter asserting the existence of an obligation justified the
inference that the assertion was accepted as the truth.
The court
held
'...
But in general
,
when according
to
ordinary
commercial
practice and human expectation firm
repudiation of such an assertion would be the
norm
if it
was not accepted as correct, such
party's silence and inaction
,
unless
satisfactorily explained
,
may
be taken to constitute an admission by him of the truth of the
assertion
,
or
at least will be an important factor telling against him
in the assessment of
the
probabilities and
in the
final determination of the dispute
.
And an adverse inference will the more
readily be drawn when the unchallenged assertion had been preceded by
correspondence
or
negotiations between
the
parties
relative
to
the subject-matter of
the
assertion
.
. .
I
have no doubt that appellant's silence and inaction after receipt of
the
letter justify
an
inference adverse to him
.
It
appears from the evidence of Mrs McKenzie that Schneider and the
appellant were on friendly
terms
;
they sometimes played golf together and
as will be seen from the
letter
Schneider addressed him by his first
name, Verne. It
is
almost
inconceivable that had the appellant not
regarded
the letter
of
21
April as being substantially correct
he would not have communicated with Schneider
,
whether by telephone or letter or in any
other way. There is nothing to show that he responded to the
letter
,
nor did
he
claim to have done so or give any
explanation worthy of consideration for not doing so
.
Moreover
,
despite what
is
contained
in
para
3
of
the
letter
of
21 April
,
the
appellant
did
not show the
letter
to
his attorney
,
Mr
Edelson
.'
[61]
Watermeyer
CJ considered whether correspondence exchanged between parties
constituted an offer and an acceptance of terms resulting
in
a
contract of purchase and sale in
Collen
v
Rietfontein
Engineering
Works:
[16]
He
concluded
'
.
.
.
because
conduct to
constitute
an acceptance must be an unequivocal
indication
to the other party of such acceptance
and
it is
not
clear to me that plaintiffs conduct in retaining the
money
satisfied those requirements
.
Quiescence
is
not
necessarily
acquiescence
and one party cannot
,
without the assent of the other, impose
upon
such
other a condition to that effectâ¦â
[62]
Seeff
Commercial and Industrial Properties (Pty) Ltd v
Silberman
[17]
concerned whether silence on
the
part of the plaintiff and its failure to object to a proposal and its
conduct in proceeding to carry out a project constituted
an
acceptance of the terms of a contract in which plaintiff had agreed
to project manage a development. The court held as follows
'In
my view, the defendant did not require
or expect acceptance of its proposal as regards paragraph 1 of A1.
The comment
,
however
,
clearly placed a duty on the plaintiff
to object to the proposal if he did not agree to it. The plaintiffs
silence and his conduct
in proceeding with
the project
constituted
acceptance of the said proposal and it
was so understood by the defendant.'
[63]
Straus
Daly Incorporated
v
Goqwana
,
In
re
:
Meeg
Bank Ltd v
Goqwana:
[18]
concerned a rescission application
,
one
of the issues in dispute related to whether there had been an
agreement concerning costs in correspondence exchanged. The court
held
'
Reverting
to the instant case I am not persuaded that the above-quoted passage
of the last letter from the applicant's attorneys contained
an
assertion such that the silence of the respondent
'
s
attorneys to
it
may
be taken to constitute an admission by them of the truth of such
assertion
.
In fact
,
in
my
view,
the
said
passage
contains no
assertion
at all
but
a proposal. In my view
,
therefore
,
such proposal without acceptance by the
respondent's attorneys did
not
result
to an agreement
,
a
settlement agreement in the words of the applicant.
'
[64]
The
following case is illustrative that an acceptance of an offer is not
inferred from silence save in exceptional circumstances.
In
The
MV Prosperous; Cabam NV v Aegean Petroleum (UK) Ltd and another:
[19]
which concerned an offer to purchase bunkers the court held
'
In
English law
,
as
in
our law
,
acceptance of an offer will not normally
be
inferred
from
silence
,
save
in
the
most exceptional circumstances
(see
Chitty
on
Contracts
26th
ed vol
1
at para 81
)
.
There
i
s
a further difficulty with the argument. The papers are s
i
lent
on the question as to whether or not there was any response from the
charterers after 23 October 1992
.
Counsel for Cabam accordingly found
himself obliged to contend that on the probabilities there was no
response
.
In my v
i
ew
there is insuff
i
cient
ev
i
denceon
the papers to es
t
ablish
an acceptance by the charterers prior to
the attachment on 24 O
c
tober1992
.
It follows that the thi
r
d
ground relied upon by Cabam must also fa
i
l.
'
[65]
In consideration
,
I am not persuaded that the defendant's
silence can be construed to be an acceptance
.
The factual matrix coupled with the fact
that the plaintiff was copied
i
n
on both emails sent by Mr Mkhize and Ms Budhoo
,
further corroborated by the plaintiff
'
s
own evidence
,
leads
to the unassailable conclusion that
an
agreement
of
mandate
was
never
concluded
between
the
plaintiff
and
defendant.
The
alternate
delictual
claim
[66)
Ak
i
n
to the issue of a contract of mandate
,
the
onus is on the plaintiff to p
r
ove
that the defendant owed him a duty of care
.
Given
the fact that the plaint
i
ff
has not established or proved a contract of mandate
,
the
submiss
i
on
by Mr Kemp SC
,
who
appeared for the defendant
,
is
sound that it is not of significant interest whether the plaintiffs
case lies in contract or deli
c
t.
The onus rests on the plaintiff to discharge
.
[20]
In
finding that
a
contract of mandate did not ex
i
st
,
the
defendant cannot be mulcted in
discharging
a non-existent duty of care to the plaintiff in circumstances where
the plaintiff was clearly not the defendant's client.
[67]
The defendant
,
having expressly agreed to abide by the
terms as set out in Mr
M
k
hize
'
s
ema
i
l of 24
February 2015
,
cannot
be legally burdened with a non-ex
i
stent
obligation to discharge in favour of the pla
i
ntiff
.
I hasten to add t
h
at
the defendant's conduct does however warrant criticism
,
however such criticism cannot be
e
levatedto
imposing a legal obl
i
gat
i
on
.
Estoppel
[68]
The
plaintiff filed a replication in answer to the defendant's denial
that an agreement of mandate existed between the parties. The
essent
i
als
to plead estoppel
are
set out in
Amler
'
s
Precedents of Pleadings
[21]
and
I do not intend repeating them
for
purposes of this judgment. The defendant did not agree to the
plaintiff
'
s
preconditions at
all
,
and
having concluded that no
agreement
of
mandate
or otherwise existed
,
the
principle of estoppel does not ar
i
se
.
The
emails which were exchanged do not support the submission that the
defendant represented that an agreement had
been
concluded
,
and
in my view illustrate quite the contrary
.
Concluding
remarks
[69]
The parties filed written heads of
argument and submitted oral argument for which I express my
indebtedness to
the
parties
.
The
court
records
that
it
was cognisant
of
the fact that the plaintiff was a foreign national and whose grasp of
the English language was somewhat tenuous
.
Alive to the plaintiffs constraints
,
the court nevertheless noted his
evasiveness and nonresponsive nature in responding to direct
questions
,
and
generally his lack of recollection
,
specifically relating to the alleged
meeting in February 2015
.
The
plaintiff was generally unpersuasive as a witness
.
His
portrayal of himself as a victim in a
financial transaction is not cons
i
stent
with the fact
that
he is an astute bus
i
nessman
who had
previous
dealings with businessmen of the ilk of Mr Mkhize
.
[70]
Whilst not expressing any finding as
same was not canvassed during the trial
,
the court was somewhat surprised at the
conspicuous absence of the joinder of Mr Zuma and Mr Mkhize as
co
-
defendants
.
The court nevertheless did not base its
findings nor draw any inferences
(
adverse
or not) from su
c
h
party
'
s
non-participatio
n
.
As
further
corroboration in relation to the
probabilities
,
the court
considered that on
the
plaintiff
'
s
own evidence
,
supported
by the correspondence
,
revealed
Mr Mkhi
z
e
'
s
undertaking to pay the debt owed by Mr Zuma
.
[71]
The emails indicated that he offered to
pay the loan amount and interest albeit over a period o
f
time
.
The
emails further indicated that the defendant held monies
i
n
trust due to Mr Mkhize from which some
of the monies owed could be repaid
.
Ye
t
the
pla
i
ntiff
does not take Mr Mkhize up on the offe
r
nor does he ensure that the documents
securing the
repayment
of
the
loan by
Mr
Mkhize are drawn up and signed
.
It
i
s
worth mentioning that at this stage
, t
he
plaintiff is be
i
ng
assisted by h
i
s
attorney
,
Mr
Wulfson
,
who
i
s in
communication with Mr Khoza
.
[72)
The plaintiff's criticism that Mr Khoza was not called as a witness
for the defendant
,
should
be viewed
i
n
a sim
i
lar
standing to the pos
i
tion
adopted by the plaintiff
.
The
court holds the adopted view that adverse
i
nferences
are not d
r
awn
as
a rule of thumb and depend primarily on the facts peculiar to a
specific case.
[22]
The fact
that the onus rested solely on the plaintiff
,
i
n
my view renders a determ
i
nat
i
on
or the drawing of an adverse inference against the defendant
i
mmaterial.
I
t
is doubtful whether Mr Khoza
'
s
evidence could have contributed to the determ
i
nat
i
on
of the dispute, given the nature and conten
t
o
f
the emails wh
i
ch
colloqu
i
ally
spoke for themselves
.
[73)
In
his heads of argument
,
Mr
Dickson
SC
submitted that a contract of agency can be
created
by
the
acceptance
of money into t
r
ust
by the payee
,
whose
instruct
i
ons
must
be obeyed
,
and
relied on the dec
i
sionin
Bas
s
on
v
Remini
[23]
as
author
i
ty
for th
i
s
submissio
n
.
Such
decision by Magid J dealt with the appointment of a conveyancer in a
transaction
involving the sale of immovable property
,
who
became the agent of bot
h
the
seller
and
the
buyer
.
He
found
that
a
contract
of
agency
had
been
concluded
based on the facts
.
This
matte
r
in
my view is distinguishable from the c
u
rrent
matter on the facts and the question of agency does not arise as no
contract of mandate e
x
isted
between the plaintiff and the defendant. If anything
,
the
defendant was Mr Mkh
i
ze
'
s
agent. In addition
,
absent
a mandate
,
no
fiduc
i
ary
duty can ar
i
se
.
Conclusion
[74]
After a deta
i
led
analysis of the
evidence
,
and
c
ons
i
derationof
the legal posi
t
ion
,
the irresistible
conclus
i
on
is that the plaintiff
has
not d
i
schargedthe
onus of proof on a
balance
of probab
i
lities
.
Costs
[75]
It is trite that the usual order is that
the successful party is entitled to its costs.
The plaintiff employed the services of
senior counsel and the defendant both senior and junior counsel. I
have carefully considered
the submissions made in respect of the
reasons for the engagement of two counsel by the defendant. Given the
nature of the
dispute
and the legal issues involved, I am of the view that the costs
resulting from the employment of two counsel are justified
.
Delay
in delivery of the judgment
[76]
There has been a delay in the delivery
of this judgment. The
issues
relating
to
the
registrar previously assigned to me and the fact that I have no
permanent registrar are a matter of record with the Office of
the
Chief Justice and have been brought to the attention of the Judge
President and Deputy Judge President of this division
.
In addition, the Covid-19 pandemic has
also contributed to the delay in that no permanent registrar has been
assigned to assist me
.
Order
[77]
In the result the following order is
issued:
The
plaintiff's claim is dismissed with costs
,
such costs to include those occasioned
by the employment of two counsel.
HENRIQUES
J
CASE
INFORMATION
APPEARANCES
Counsel
for the Plaintiff
: Mr A.J. Dickson SC
Instructed
by :
Messrs Venns
281
Pietermaritz Street
Pietermaritzburg
Tel
:
033 355 3321 Fax
:
086510
2880
Ref
:
04179076/AHLR/welda/S25
Email
:
welda@venns.co
.
za
Counsel
for Defendant
Mr
KJ Kemp SC
Mr
ES
Crots
Instructed
by : Strauss Daly Incorporated
9
th
Floor Strauss Daly Place
41
Richefond Circle
Ridgeside
Office Park
Umhlanga
Tel
:
031 570
5600
Ref
:
Mr N Volschenk/pr/STR471/0007
c/o
Botha and Olivier Inc
239
Kerchhoff Street
Pietermaritzburg
Ref
Sanet
Date
of Hearing Date of Judgment : 28 August 2019
Date
of Judgment : 3 May 2021
This
judgment was handed down electronically by circulation to the
parties
'
representatives
by email and release to SAFLII. The date and time for hand down is
deemed to be 09h30 on 3 May 2021
.
[1]
Exhibit âCâ.
[2]
E
x
hi
bit
'
C
'
,
p
a
g
es
2
4
6-247
.
[3]
E
x
hib
i
t
'
C',
pa
ge
s
2
4
5-2
4
6.
[4]
Exhibit C, page 244 reflects time as being 08:56am.
[5]
Ex
hibit
'
C
'
,
pag
e
2
4
5.
[6]
E
x
h
ibi
t
'C
',
pa
g
e
246
.
[7]
E
x
hib
i
t
'
C
'
,
page
246
.
[8]
LT
C
Harms
Amle
r's
P
rec
edent
s
o
f
Ple
a
d
ings
8
ed
(
2018
)
at
242
.
[9]
Ibid
at
245.
[10]
28
(
1
)
Lawsa
3
ed
para
55
.
[11]
Tjaard
du
Plessis
lngelyf
v
Joubert
[2010]
ZAGPPHC
250
;
[2011]
JOL
26791
(GNP)
para
6
.
[12]
Earles
v Barclays Bank
Pi
e
[2009]
EWHC 2500
(Mercantile) paras 19
,
20
and
21
.
[13]
Natal
Joint
Municipal Pension Fund v Endumeni
Muni
cipality
2
01
2
(4)
SA
593
(SCA)
para
18
.
[14]
GB
Bradfield
Ch
ri
s
ti
e
'
s
La
w
o
f
C
o
n
t
ra
ct
i
n
So
uth
Afr
ica
7
ed
(2
016
)
at
80-81
.
[15]
McWilliams
v First Consolidated Holdings (Pty)
Ltd
[1982]
1
All
SA 245
(
A
)
at
250
.
[16]
Collen
v
Rietfontein
Engineering
Works
1948
(
1)
SA 413
(A)
at
421-422
.
[17]
Seeff
Commercial and Industrial Properties (Pty)
Ltd
v
S
i
lberman
(2001]
3 All SA 133
(A
)
para
19
.
[18]
Straus
Daly
Incorporated
v
Goqwana
,
In
re
:
Meeg
Bank Ltd
v
Goqwana
(2013]
ZAECMHC
31
para
11
.
[19]
The
MV
Prosperous
;
Cobam
NV
v
Aegean
Petroleum
(UK
)
Ltd
and
another
1996
(2
)
SA
155
(A
)
at
166A-C
.
[20]
M
obo
M
v
M
ember
of the E
x
ecutive
Council
fo
r
H
eal
t
h
of
th
e
Gauteng
P
rovincial
Go
v
ern
ment
[
20
1
8]
ZA
GPJH
C
77
a
t
p
a
ra
29
,
Ra
monyai
v
L
P
Mo/ope A
tt
o
rn
eys
[2
0
1
4]
ZAG
PJH
C
65 a
t
p
ara
19
-
20,
Va
n
As
v
Ko
tz
e
[
2019
]
3
A
ll
SA
284
(
N
C
K
)
a
t
pa
r
a
9
.
[21]
L
TC
H
a
rm
s
A
m
l
er's
Precedents
of
P
l
ead
i
ngs
8
e
d
(2018)
at
1
8
8
.
[22]
T
it
u
s
v S
h
ield
Insurance
Co
Ltd
1
980
(
3
)
SA
1
1
9
(
A)
at 133
E
-
G
.
[23]
B
asso
n
v
Remini and another
1992
(
2
)
SA
322 (
N
)
a
t
328
.