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[2021] ZAKZPHC 62
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Strauss Daly v Member of the Executive Council, Health KwaZulu-Natal (2899/2021P) [2021] ZAKZPHC 62 (17 September 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 2899/2021P
In
the matter between:
STRAUSS
DALY PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COUNCIL, HEALTH DEFENDANT
KWAZULU-NATAL
JUDGMENT
Mossop
AJ:
Introduction
[1] This
is a review of taxation as contemplated in rule 48(1) of the Uniform
Rules of Court. The defendant is
dissatisfied with the decision of
the Taxing Master to allow certain items upon taxation by the
plaintiff of four bills of costs.
The
documents delivered
[2] On
4 May 2021, a notice of review was delivered by the defendant
requiring the Taxing Master to file a stated
case in terms of rule
48(3). On 31 May 2021, the Taxing Master filed a document
referred to as the ‘Taxing Master’s
Report’. I
shall assume that this is the stated case referred to in rule 48(1)
and I shall refer to this document as ‘the
first report’.
The defendant thereafter delivered its submissions in terms of rule
48(5)
(a)
on 22 June 2021. The Taxing Master’s report in
terms of rule 48(5)
(b)
was also filed on 22 June 2021, and
also on the same day, the plaintiff delivered its submissions in
terms of rule 48(5)
(a)
. The defendant thereafter delivered a
response to the plaintiff’s submissions.
The
nature of the defendant’s complaint
[3]
Four
bills of costs were taxed by the plaintiff before the Taxing Master
on 13 April 2021. The complaints of the defendant all relate
to
amounts allowed by the Taxing Master in respect of the perusal of
documents by the plaintiff.
In
Thornycroft
Cartage Co v Beier & Co (Pty) Ltd and another
[1]
the word ‘perusal’ was said by counsel to mean
‘
the
application of a trained legal mind to the contents of the document
in question’.
This
definition has been accepted and employed in a number of subsequent
matters.
[2]
[4] The
defendant contends that the perusals in each instance involved a
‘bulk perusal’. It contends
that where such perusals are
allowed, they are generally allowed at a reduced rate. In three of
the taxations the defendant claims
that the perusal of the record
also involved a re-perusal thereof. As with a ‘bulk perusal’,
the defendant contends
that a re-perusal is generally allowed at a
reduced rate. The defendant finally contends that allowing the
perusals at the rate
claimed by the plaintiff led to an unfair
result.
[5] The
plaintiff, a firm of attorneys, asserts that the parties concluded a
service level agreement (SLA) with
it in terms of which the fees that
it would charge for legal services to be rendered to the defendant
were disclosed to the defendant
and were agreed to by it. The
defendant accordingly agreed to pay the fees of which it now
complains.
[6]
It
is evident that the fact of the perusals is not in dispute. The
Taxing Master accepted that the perusals had occurred and this
has
not been challenged by the defendant. It is also not in dispute that
the defendant objected to each of the items mentioned
in its notice
of review at the taxation, and that it is accordingly entitled to
have the decisions of the Taxing Master reviewed.
[3]
General
principles
[7] A
foundational principle of a review of taxation is that the exercise
of the discretion of the Taxing Master
will, in general, not lightly
be disturbed unless it is found that the Taxing Master
‘
. . . did not
exercise his or her discretion properly, did not apply his or
her mind to the matter, disregarded factors or
principles which were
proper for him or her to consider, or considered others which it was
improper to consider, has acted upon
wrong principles or wrongly
interpreted rules of law, or has given a ruling which no reasonable
person would have given, or is
clearly wrong. . .’
[4]
[8]
In
Ocean
Commodities Inc and others v Standard Bank of SA Ltd and others
,
[5]
Rabie CJ re-stated the test to be that
‘
. . .
the
Court will not interfere with a ruling made by the Taxing Master in
every case where its view of the matter in dispute differs
from
that of the Taxing Master, but only when it is satisfied that the
Taxing Master's view of the matter differs so materially
from its own
that it should be held to vitiate his ruling
.’7
[9]
In
Köhne
and another v Union & National British Insurance Co. Limited
[6]
it
was held that:
‘
. . .
the
discretion vested in the Taxing Master is to allow costs, charges and
expenses
as appear to him
to have been necessary or proper; not those which may objectively
attain such qualities, and that such opinion must relate to all
costs
reasonably incurred
by the litigant which also imports a value judgment as to what is
reasonable
. . .’
[10]
From
the aforegoing, it is apparent that a review of a taxation does not
involve a court merely substituting what it subjectively
considers to
be reasonable for the considered opinion of the Taxing Master, unless
the Taxing Master did not exercise his or her
discretion
correctly. In performing her duties, ‘[a] Taxing Master
performs
a quasi-judicial function and not an administrative function’.
[7]
[11] What
is the position when there is a prior agreement on the fees to be
charged? Is the Taxing Master obliged
to allow those rates agreed
upon or does she have the power to vary them or ignore them? The
answer is that the Taxing Master is
not necessarily obliged to allow
those amounts. The plaintiff’s contention is that the defendant
is bound by the terms of
the SLA in which the rates to be charged
were agreed to by it. This is not necessarily so:
‘
The basic rule
with regard to costs is that, apart from statutory limitations, all
costs awards are in the discretion of the court.
The court's
discretion is a wide, unfettered and equitable one, which has to be
exercised judicially with due regard to all relevant
considerations.
These would include the nature of the litigation being conducted
before it and the conduct of the parties (or their
representatives).
As a matter of policy and principle a court should not, and must not,
permit the ouster of its discretion because
of an agreement between
parties with regard to costs . . . Because a court exercises its
discretion judicially it would normally
be bound to recognise the
parties' freedom to contract and to give effect to any agreement
reached in relation to costs. But good
grounds may exist, depending
upon the particular circumstances, for following a different course
which might result, on a proper
exercise of discretion, in a party
being deprived of agreed costs or being awarded something less in the
way of costs than that
agreed upon.’
[8]
[12]
Irrespective
of whether the attorney’s fees are agreed, the fee charged must
be reasonable.
[9]
Based on
considerations of public policy, the court retains the right to
decide what a fair and reasonable remuneration would be.
A fee that
is unreasonable cannot validly be recovered, and a fee agreement that
authorises an attorney to charge an unreasonable
fee that amounts to
overreaching, will be unreasonable and consequently
unenforceable.
[10]
[13]
Thus
the mere fact that there is a fee agreement between a client and its
attorneys which regulates what fees are to be charged
is not a bar to
the Taxing Master exercising her discretion to determine whether the
fees claimed are reasonable or not.
[11]
[14]
Considering
the issue of the re-perusal of documents, the position is that where
a document has already been perused for one main
purpose, a full
perusal fee in connection with its use for an ancillary issue should
not be allowed.
An
attorney is normally not entitled to a full fee for the perusal of a
record which he had already perused and which is accordingly
not
res
nova
.
Normally, ‘the Taxing Master is required in such a case to fix
a globular remuneration for the additional work involved
in a
re-perusal of the record’.
[12]
[15]
In
this regard, in
De
Villiers v Estate Hunt
,
[13]
the court remarked that
'It is obvious that the
task of perusing the record of a case in which a person has been
previously engaged must necessarily be
far lighter than it would be
to peruse the record of a case with which one had had nothing to do
previously.'
The
court went on further to state that
'I do not, of course, go
all the way with the contention of the applicant that because the
work had been done once it should not
have been repeated. The very
fact that it was done some time before and in another connection must
almost of necessity make it
essential to some extent to repeat it. It
will, in other words, be necessary for the attorney to furbish up his
existing knowledge,
to check it and to bring, it up to date. But
neither must he neglect knowledge which he has already acquired. . .
'
[14]
Finally,
in remitting certain items to the Taxing Master, the court concluded
that
'He [i.e. the Taxing
Master]
should,
in appraising the amount of work which required to be done, the
length of time required to do it and the remuneration which
should be
paid for it, take into careful consideration how much of it was old
and how much new . . . and how far it was necessary
--- to take but
one example --- to read the whole of documents again right through,
when it should already have been known just
how much of value they
contained and where to look for it. This may be difficult and the
result may be somewhat arbitrary, but
of it at least this can be
predicated with certainty: that result must be a great deal, even a
very great deal, less than it was
when it was accepted by the Taxing
Master that the attorney was entitled to do the work, in his own
words, "
de
novo
"
and this work was treated by the former as being "
res
novae
"
.'
[15]
[16] With
these principles firmly in mind, I turn now to consider the terms of
the SLA and the four bills of costs
about which complaint has been
made.
The
service level agreement
[17] The
origin of the disputed bills of cost is to be found in the SLA
concluded between the parties on 21 September
2016. In terms thereof,
the plaintiff agreed to render various legal services to the
defendant at certain agreed rates. The rates
at which the services
were to be charged at are set out in an appendix to the SLA, marked
as appendix ‘A’.
[18] Appendix
‘A’ to the SLA is entitled ‘Standard Engagement
Terms’ and, inter alia:
(a) sets
out the hourly rates of attorneys with different numbers of years of
post-qualification experience.
The most experienced attorney, for
example, being an attorney with 15 years’ post qualification
experience and above, would
render services to the defendant at a
rate of R1 980 per hour (plus an additional surcharge of 20
percent for every additional
five years’ experience). The least
qualified attorney, with one year’s post qualification
experience, would charge
out at a rate of R850 per hour. Between
these two outer limits, the SLA provided different rates for other
attorneys with different
levels of post qualification experience;
(b) provides
that the plaintiff might elect to levy a composite hourly rate at any
stage, being a flat hourly
rate regardless of the number of
professional and other resources involved in the work, in which event
the defendant would be charged
R3 100 per hour;
(c) deals
with the rate to be charged for perusals. It specifically provides
that they were to be charged
as follows:
‘
Correspondence
sent or received and documents drafted or perused: 1/8 of hourly rate
per folio’; and
(d) defined
a folio as comprising 100 words.
The
bill in respect of case number 16189/2014P:
Lindani
Cleaning and Security Services and others v The Chairperson of the
Bid Adjudication Committee and others
(the first bill)
[19] What
is sought to be reviewed in the first bill are the following amounts
allowed by the Taxing Master:
(a) R749
232, being in respect of a perusal by the plaintiff of 3 440 folios
on 2 May 2017 at a rate of R217.80
per folio;
(b) R610
057.80, being in respect of a perusal by the plaintiff of 2 801
folios on 31 May 2017 at a rate
of R217.80 per folio;
(c) R606
790.80, being in respect of a perusal by the plaintiff of 2 786
folios on 30 June 2017 at
a rate of R217.80 per folio;
(d) R810
216, being in respect of a perusal by the plaintiff of 3 720 folios
on 31 July 2017 at a rate of
R217.80 per folio; and
(e) R670
824, being in respect of a perusal by the plaintiff of 3 080 folios
on 29 July 2017 at a rate
of R217.80 per folio.
[20] The
basis for the defendant’s complaint in respect of the first
bill is that:
(a) the
volume of documents perused amounts to a ‘bulk perusal’
which is generally allowed at
a reduced rate on a time basis;
(b) the
perusals were of a record which is generally allowed at a reduced
rate;
(c) the
plaintiff had previously perused the record, had charged for such
perusals and had been paid
for them, and the further perusal amounted
to a re-perusal, which was also generally allowed at a reduced rate;
and
(d) allowing
the perusals at the rate claimed by the plaintiff led to an unfair
result.
[21]
I
deal firstly with the issue of ‘bulk perusals.’ In her
first report, the Taxing Master makes reference to the defendant’s
submissions at taxation that Taxing Masters have generally allowed
‘bulk perusals’ on a time basis and at a rate of
40 pages
perused per hour (the 40 pages rule) and that the courts have
approved of this. Specifically, the Taxing Master stated
that the 40
pages rule was accepted in
SANTS
Private Education Institution (Pty) Ltd v MEC for the Department of
Education of the Province of KwaZulu-Natal
,
[16]
a decision of this division. In the unreported decision of
Van
Marle v Kellerman,
[17]
a decision that I have not had sight of but to which reference is
made in
Van
Rooyen v Road Accident Fund,
[18]
Roos J apparently held that ‘a large batch of documents’
might in a particular case be relevant, but not individually
important and that a reasonable lump sum, based on the estimated time
occupied may be allowed for the examination thereof.
[22] The
40 page rule appears to have been widely implemented. The Taxing
Master herself acknowledged its application
in this Division but did
not consider whether, in the exercise of her discretion, she ought to
implement it. Nor did she consider,
as an alternative the question of
a reasonable lump sum as suggested by Roos J. The reason for this is
that the Taxing Master felt
herself to be bound by the terms of the
SLA.
[23] Turning
to the fact that what was perused was a record, I have not been
referred to any authority that the
perusal of a record warrants a
reduced fee. I again hold that the 40 page rule may be appropriate
for the perusal of large volumes
of documents
[24] As
regards the matter of re-perusals, the Taxing Master indicates in her
first report that she did not regard
the perusals as a re-perusal.
She indicated that while the documents had previously been perused
and a fee allowed for this, on
this occasion the documents were
perused for a different purpose: the first perusal was to identify
problems and issues relating
to a tender review and the further, or
second, perusal was to draft the answering affidavit.
[25]
By
virtue of the fact that the record had already been perused, a second
perusal must of necessity amount to a re-perusal. In failing
to
consider whether the perusals should be allowed at a discounted rate,
the Taxing Master erred. On the authority of
Goldschmidt
,
[19]
the re-perusals ought not to have been allowed at a full perusal
rate. As submitted by the defendant, the perusals ought to have
been
allowed at a reduced rate determined by the Taxing Master in the
exercise of her discretion.
[26] The
final complaint is that allowing perusals at the rate that the Taxing
Master allowed, resulted in an unfair
result. On the plaintiff’s
version, a perusal rate based on one tenth of the relevant hourly
rate was charged and not the
stipulated one eighth of the relevant
hourly rate.
[27] Using
as an example:
(a) the
first perusal amount claimed in the bill of costs, namely R749 232;
and
(b) the
rate of the most senior attorney, who would charge at R1 980 per
hour plus 20%, which equals
R2 376 per hour; and
(c) applying
the 40 page rule,
the cost of perusing 3
440 folios would be the number of folios divided by 40 folios per
hour multiplied by R2 376 per hour.
The answer would be
R204 336. The difference between this method of calculation and
the folio method employed by the plaintiff
is more than half a
million rand on this one calculation alone.
[28] Viewed
from a different perspective, the defendant contends that by
utilising a per folio rate, the plaintiff
had charged out,
effectively, at a rate of R74 923.20 per hour. This astonishing
figure is calculated by the defendant assuming
a ten hour workday and
that all the work was completed in a day. The latter assumption
appears to be well founded, as the bill
of costs indicates that the
perusal was done on a single day, namely 2 May 2017. The assumption
of a ten hour day, however, may
be incorrect. The hourly rate of R74
923.20 postulated by the defendant is arrived at by dividing the
total amount charged for
on that day, namely R749 232, by a
working day of 10 hours.
[29] Irrespective
of whether a ten hour day is correct or not, it is irrefutable that
the plaintiff contends that
over a 24 hour period it allegedly
performed work that entitled it to be paid R749 232. How this is
possible has not been explained
by the plaintiff. That the amount
claimed is outrageous brooks no dispute. It is entirely unreasonable.
[30] The
plaintiff indicates that it was entitled to the amounts claimed
because the defendant agreed to the rates
and was obliged to
remunerate it ‘strictly’ in accordance with the SLA.
[31] An
objective consideration of the amounts claimed and allowed for
perusals in this bill of costs leaves one
aghast at the amounts
allowed. The amounts claimed for a second perusal of the record are
simply unjustifiable and cannot be construed
as being reasonable. The
Taxing Master appears, however, to have had no qualms about allowing
the amounts claimed.
[32]
Having
acknowledged the 40 page per hour perusal rule, it appears that the
Taxing Master paid no further attention to it. She ought
to have done
so. She ought also to have considered the application of a lump sum.
It appears to me that the Taxing Master accepted
that the plaintiff
was entitled to the amounts claimed by it because there was an
agreement that permitted that. She was incorrect
in this regard as
well. She was required to consider whether the fees claimed were
reasonable. She did not do so. In so finding,
it appears to me that
the Taxing Master did not properly exercise her discretion: indeed,
it is probable that she did not even
consider that she had a
discretion. In such circumstances, intervention by this court is
warranted. As was stated in
Kloot
v lnterplan Inc and another
[20]
‘
The
Taxing Master has a discretion to be judicially exercised in
allowing or disallowing or reducing the various items of a
bill
of costs. That discretion must be exercised reasonably and justly on
sound principles and with due regard to all the circumstances
of the
case. In exercising his discretion he should ensure that the
unsuccessful litigant is not oppressed by having to pay an
excessive
amount of costs and accordingly, although the Court does not have a
free hand to interfere with a Taxing Master's discretion
on review,
where he has failed to exercise . . . judicially or properly or
failed to bring his mind to bear upon the question,
intervention is
demanded.
’
[33] In
my view, the amounts allowed for perusal should have been allowed:
(a) at
a discounted perusal rate to be determined by the Taxing Master in
the exercise of her discretion
arising out of the re-perusal of the
documents; and
(b) with
reference to the 40 page rule, alternatively a reduced lump sum rate,
and not the method employed
by the plaintiff.
The
bill in respect of case number 1188/2015P:
Compass Waste
Services (Pty) Ltd v The MEC for the Department of Health for the
Province of KwaZulu-Natal
(the second bill)
[34] What
is sought to be reviewed in the second bill are the following amounts
allowed by the Taxing Master:
(a) R634
015.80, being in respect of a perusal by the plaintiff of 2 911
folios at a rate of R217.80 per
folio;
(b) R581
526, being in respect of a perusal by the plaintiff of 2 670 folios
at a rate of R217.80 per folio;
(c) R835
263, being in respect of a perusal by the plaintiff of 3 835 folios
at a rate of R217.80 per
folio; and
(d) R674
091, being in respect of a perusal by the plaintiff of 3 095 folios
at a rate of R217.80 per folio.
[35] The
basis for the defendant’s complaint in respect of this bill of
costs is that:
(a) the
volume of documents perused amounts to a ‘bulk perusal’
which is generally allowed at
a reduced rate on a time basis; and
(b) allowing
the perusals at the rate claimed by the plaintiff led to an unfair
result.
[36] The
facts and circumstances relating to the second bill differ slightly
to those pertaining to the first bill
as the perusals charged for
here were first time perusals and not re-perusals.
[37] I
repeat my previous views on ‘bulk perusals’. The Taxing
Master again asserts that the plaintiff
was entitled to the fees
charged because there was an agreement in place that defined the
amounts that were to be charged. There
is, again, no acknowledgment
from her that she has a duty to determine whether the amounts charged
were reasonable. She is obliged
to do so. The Taxing Master states
‘
In this present
case, the perusal fee was charged according to the agreement entered
into by the plaintiff and the defendant and
thus the taxing master
has no discretion to deviate from the agreement and treat the
documents as a batch.’
The
Taxing Master is incorrect in this regard for the reasons previously
explained.
The
bill in the matter of
LK Security Solutions (Pty) Ltd v
Member of Executive Council, Health, KwaZulu-Natal
(the
third bill)
[38] What
is sought to be reviewed in the third bill are the following amounts
allowed by the Taxing Master:
(a) R649
915.20, being in respect of a perusal by the plaintiff of 2984 folios
at a rate of R217.80 per folio;
and
(b) R257
857.20 being in respect of a perusal by the plaintiff of 1 184 folios
at a rate of R217.80 per folio.
[39] The
basis for the defendant’s complaint in respect of this bill of
costs is identical to that raised
in respect of the first bill of
costs, namely that:
(a) the
volume of documents perused amounts to a ‘bulk perusal’
which is generally allowed at
a reduced rate on a time basis;
(b) the
perusals were of a record which is generally allowed at a reduced
rate;
(c) the
plaintiff had previously perused the record, had charged for such
perusals and had been paid
for them, and the further perusal amounted
to a re-perusal which was also generally allowed at a reduced rate;
and
(d) allowing
the perusals at the rate claimed by the plaintiff led to an unfair
result.
[40] I
point out that the perusal rate is not specified in this bill of
costs, but it is a matter of some simplicity
to determine it by
dividing the amount claimed by the number of folios perused.
[41] The
reasoning advanced when considering the first bill is of equal
application to this bill and is not repeated.
The
bill in respect of case number 10514/16P:
Vusa Isizwe
Security Services (Pty) Ltd v HOD: KwaZulu-Natal Provincial
Government: Department of Health and two others
(the
fourth bill)
[42] What
is sought to be reviewed in the fourth bill are the following amounts
allowed by the Taxing Master:
(a) R579
783.60, being in respect of a perusal by the plaintiff of 2 662
folios at a rate of R217.80 per
folio; and
(b) R405
979.20, being in respect of a perusal by the plaintiff of 1 864
folios at a rate of R217.80 per
folio.
[43] The
basis for the defendant’s complaint in respect of this bill of
costs is identical to that raised
in respect of the first bill of
costs, namely that:
(e) the
volume of documents perused amounts to a ‘bulk perusal’
which is generally allowed at
a reduced rate on a time basis;
(f) the
perusals were of a record which is generally allowed at a reduced
rate;
(g) the
plaintiff had previously perused the record, had charged for such
perusals and had been paid for
them, and the further perusal amounted
to a re-perusal which was also generally allowed at a reduced rate;
and
(h) allowing
the perusals at the rate claimed by the plaintiff led to an unfair
result.
[44] It
follows, as with the previous bill of costs, that the reasoning
advanced when considering the first bill
of costs is of equal
application to this bill and is not repeated.
Analysis
[45] It
appears to me that the Taxing Master misconstrued her position,
duties and discretion arising out of the
fact that the SLA had been
concluded between the parties. She appears to have concluded that the
rates outlined in the SLA would
inevitably have to be applied because
both parties agreed to them. She accordingly failed to use her
discretion to consider whether
the amounts charged were reasonable in
the circumstances of the matter, particularly in the light of the
fact that three of the
bills of cost related to re-perusals of
documents. She therefore did not apply her mind to the matter and
disregarded factors or
principles which were proper for her to
consider. These failures mean that the court must intervene.
Order
[46] In
my view the review must accordingly succeed. I therefore grant the
following order:
1. The
taxation of the four bills of costs taxed by the Taxing Master on 13
April 2021 at the
instance of the plaintiff only insofar as they
relate to the perusals forming the subject matter of these review
proceedings, and
which perusals are identified in the notice of
review dated 3 May 2021, be and are hereby set aside;
2. The
four bills of costs are referred back to the Taxing Master who must
tax the perusals forming
the subject matter of these review
proceedings and which perusals are identified in the notice of review
dated 3 May 2021
de novo
in accordance with
this judgment;
and
3. The
plaintiff is directed to pay the defendant’s costs.
MOSSOP
AJ
APPEARANCES
Attorneys
for the plaintiff: Strauss
Daly Inc
9
th
Floor, Strauss Daly Place
41
Richefond Circle
Ridgeside
Office Park
Umhlanga
Attorneys for the
defendant: State Attorney
Care
of Cajee, Setsubi Chetty Inc
195
Boshoff Street
Pietermaritzburg
[1]
Thornycroft
Cartage Co v Beier & Co (Pty) Ltd and another
1962
(3) SA 26
(N) at 33F.
[2]
Chemical
Formulators and Consultants (Pty) Ltd v Detsave Chemicals (Pty)
Ltd
1976
(1) SA 638
(W) at 642D, and
Vrystaat
Mielies (Pty) Ltd v Da Silva and others
[2007]
ZAFSHC 114.
[3]
Daywine
Properties (Pty) Ltd v Murphy and another
1991
(3) SA 216
(D).
[4]
Lander
v O’Meara and another
2011
(1) SA 204
(KZD)
para 13.
[5]
Ocean
Commodities Inc and others v Standard Bank of SA Ltd and others
1984
(3) SA 15
(A)
at
18F G.
[6]
Köhne
and another v Union & National British Insurance Co. Limited
1968
(2) SA 499
(N)
at 504B-C.
[7]
Jonker
and others v Lambons (Pty) Ltd and another
[2018] ZAFSHC 186 para 4.
[8]
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA1045 (SCA) at 1046E-G in the headnote.
[9]
Ben
McDonald Inc and another v Rudolph and another
1997
(4) SA 252
(T)
at 256C-D;
President
of the Republic of South Africa and others v Gauteng Lions Rugby
Union and another
2002
(2) SA 64
(CC)
para 51.
[10]
Goolam
Mohamed v Janion
(1908)
29 NLR 304
;
Law
Society of South West Africa v Steyn
1923 SWA 47 at 52;
Law
Society of the Cape of Good Hope v Tobias and another
1991
(1) SA 430
(C)
at 435B C;
Chapman
Dyer Miles & Moorhead Inc v Highmark Investment Holdings CC and
others
1998
(3) SA 608
(D)
at 612E-F; and
Melamed
& Hurwitz Inc v Goldberg
[2009]
ZASCA 15
.
[11]
Savanha
Construction and Maintenance CC v Phillips and Another
[2020] ZALMPPHC 21.
[12]
Goldschmidt
and another v Folb and another
1974
(3) SA 778
(T) at 783E.
[13]
De
Villiers v Estate Hunt
1940 CPD 518
at 523.
[14]
Ibid
at
524.
[15]
Ibid
at
526.
[16]
SANTS
Private Education Institution (Pty) Ltd v MEC for the Department of
Education of the province of Kwazulu-Natal and Others
[2016]
ZAKZPHC 101 paras 49-52.
[17]
Van
Marle v Kellerman
(TPD) Unreported case number 8807/1997 (26 October 1998).
[18]
Van
Rooyen v Road Accident Fund
[2004] ZAGPHC 7
para 20.
[19]
See
fn 11.
[20]
Kloot
v Interplan Inc and another
1994 (3) SA 236
(SE) at 238H-I.