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[2019] ZAGPPHC 307
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Lass v Lubamba and Another (60923/16) [2019] ZAGPPHC 307 (17 July 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: 60923/16
DATE OF HEARING: 12 MAY 2019
17/7/2019
In
the matter of:
RIAAN
LASS
PLAINTIFF
And
FRANCISCO
ABILIO LUBAMBA
First DEFENDANT
LANSERIA
JET CENTRE (PTY) LIMITED
Second DEFENDANT
(REGISTRATION
NUMBER: 2004/002561/07)
JUDGMENT
Bam
AJ
Introduction
1.
This
case is about a claim of unpaid remuneration arising from an
international contract of employment. In the main, two issues
must be
resolved. They are: (i) whether, notwithstanding the wording of the
contract, the defendant had an obligation to pay plaintiff’s
remuneration in US dollars in terms of the second or the 2015
contract; and, (ii) whether the plaintiff is owed any remuneration
in
respect of the third (the 2016) or the last contract. The defence
denied that the 2016 contract was meant to be a binding contract
of
employment and provided reasons. They further alleged that the
agreement was invalid for its failure to comply with certain
Angolan
laws. In interpreting the 2015 contract, the defence made submissions
which can be summed as the golden rule of interpretation,
while the
plaintiff has argued for an interpretation which seeks to bring in
extrinsic evidence in the nature of background or
the factual matrix
and urged the court to seek a sensible or businesslike meaning. Given
the foreign elements in the contract,
the search for the content of
the
lex causae,
(the
proper law of contract) led to nought, leading the court to resort to
the
lex fori (the law of the forum or
court where an action is instituted)
2.
Plaintiff,
Mr Riaan Laas is a South African citizen with a commercial pilot's
license of 24 years combined with an airline transport
license. The
defendant, Mr Francisco Abilio Lubamba, is an Angolan businessman and
a peregrinus of South Africa as a whole. To
use the
descriptionadopted by the court in Jamieson
[1]
,
he is an 'an out - and - out peregrinus'. He resides in Angola and
has no business presence in South Africa. He never had. His
business
headquarters is in Ondjiva, Angola. The contracts of employment the
plaintiff relies on were concluded in Angola and the
aircraft
plaintiff flew has its hangar in Lubango, a province of Angola.
3.
Before
canvassing the relevant background details, I consider it convenient
to note a few points: I was informed by the parties
at the start of
the trial that there is no second defendant. Indeed, a cursory
perusal of the record reveals that the reference
to second defendant
arose from the background of the July 2016 motion proceedings which
foreshadowed these proceedings. Those proceedings
were pursued to
secure an order to attach first respondent/first defendant's
aircraft, a Learjet 45, described in the papers as
a Bombadier with
serial number 45-092 and registration number 02-srr to found
jurisdiction
[2]
.
The second respondent (second defendant) was cited then as an
interested party as the aircraft was located in one of its hangars,
following its service there. With that clarification, I shall from
now on refer to the parties as plaintiff and defendant. Where
necessary, I specify that I am referring to the second defendant.
Background
4.
The
background giving rise to the dispute is as follows: Plaintiff
testified that during May 2014, while in the employ of Dana Air,
Nigeria, he was introduced to the defendant who was looking for
assistance in acquiring an aircraft and a person to act as captain
in
his employ. Plaintiff sent his curriculum vitae (CV) and was
immediately offered employment without an interview. He accepted
the
offer as he preferred Angola. He explained his role as that of a
pilot, adding that he was also tasked with overseeing maintenance
of
the aircraft. He was informed that he would be paid a monthly
remuneration of USD 9500. The defence, in refuting this last
statement, stood by the contract pointing out that the contract
states otherwise. So, plaintiff began flying for the defendant as
of
May 2014. He testified that he flew the defendant throughout Angola,
Namibia and sometimes to South Africa. Throughout the year
2014, his
remuneration was paid in cash. In addition, he was provided USD 500
as spending money. Before he signed the second contract,
which began
on 2 February 2015 and ended on 31 January 2016, he was asked to
provide bank details to enable the defendant to pay
him via
electronic funds transfer (EFT). This the plaintiff did. At the time
of signing the second agreement, the defendant also
took the
responsibility to apply for the plaintiff’s work visa for a
period of twelve (12) months.
5.
The
problems began in 2015 when the plaintiffs salary from January to May
2015 was not paid. Both parties testified that there was
a shortage
of dollars in the Angolan market. The full amount outstanding
however, was paid on 17 June 2017 in the amount of USO
47 500.
Plaintiffs salary from June to December 2017 was again not paid.
During December 2015 the aircraft required service and
plaintiff had
to fly it to South Africa, to the second defendant, for the service.
Prior to his departure, he made enquiries with
the defendant about
his outstanding pay and the status of his employment. In response, he
was provided with what plaintiff terms
proof of payment in the amount
of R897 750 dated 30 November
[3]
.
The two parties refer to the voucher either as proof of payment (the
plaintiff) while the defendant refers to it as a payment
requisition.
Nonetheless, nothing appears to turn on these varied references. He
was also handed an amount of Euro 9000 which plaintiff
accepted as
his January 2016 contract. There is a dispute regarding this amount.
The defendant claims he paid Euro 13 300. Of this
amount, Euro 9000
was the plaintiff's salary and the remainder (Euro 4300) was for the
plaintiff to purchase accessories for the
servicing of the aircraf.t
Since the plaintiff had not done so, the parties subsequently agreed
that he retains the amount as credit
towards his salary. The
difficulty facing the defendant is the lack of proof. In any event, I
address the issue later in this judgement.
6.
The
payment of R897 750 failed, as did the next payment requisition in
the amount of Euro 63 000 dated 9 December 2015
[4]
.
By the time plaintiff realized the failure of these two payments he
was already in South Africa, having left Angola on or about
18
December 2015.
7.
While
in South Africa, plaintiff often raised with the defendant the issue
of his outstanding salary. He also enquired about his
employment
status. Two further payments were made by the defendant, one during
March/April 2016 in the amount of USD 18000 and
during July 2016 in
the amount of USD9500
[5]
.
The plaintiff testified that he decided to allocate the latter
payment to the oldest outstanding payment of June 2015 and leaving
the defendant debt of USD 96 000
[6]
payable to the plaintiff. I deal with the mathematics at the end of
this judgement. It transpired during the servicing of the aircraft,
that there was a need to replace a particular windshield at the cost
of USD 70 000. The relevance of this last detail will become
apparent
later in this judgement.
The
relevant clauses of the contract
8.
I
now deal with the relevant clauses of the three contracts in broad
outline. The first (2014) contract, against which there is
no claim
makes provision as follows:
9.
Plaintiff
is employed for a fixed period of six months as a pilot; the services
are to be rendered in Ondjiva while the company
reserves the right to
transfer the employee. There is some reference to a salary scale
classification group 0 - 21; the position
commences on 14 May 2014
and remains valid for six months including a probation period of 30
days; the remuneration is noted as
'a
monthly
cash
remuneration
in the value of 950 000'.
The last
provision notes that two copies of the contract are to be forwarded
to the Employment Centre, apparently a reference to
the Department of
Labour in Angola.
10.
The
second (2015) contract is symmetrical to the first in every respect
save that it commences on 2 February 2015 and ends on 31
January
2016.
11.
The
third (2016) contract, is a mirror image of the first and second
contracts, except that it notes the remuneration as a
'
monthly cash remuneration in the value of USD 9500'.
This
is the contract that is refuted by the defence.
12.
During
cross examination, the claim that the plaintiff was charged with
overseeing maintenance was met with a riposte, leading to
him
conceding that he did not have the necessary certification by AMO
[7]
.
In further explanation, the role was watered down to liaising with
the party carrying out the maintenance. He further conceded
that in
terms of the 2014 and 2015 contracts, the monthly amount of 950 000
could only be a reference to the Angolan Kwanza. In
other words, it
could not be 950 000 US dollars or South African Rand that was
payable monthly. He further confirmed that his work
visa expired on 2
March 2016. To qualify to fly the kind of aircraft, the Learjet, the
plaintiff had to have ratings assigned to
him. His ratings would have
expired in June 2016. In so far as the plaintiff's failure to attach
his certificates for ratings and
airline license, he replied that the
Angolan authorities would have never allowed him to fly the aircraft
without those certificates.
Absolution
from the instance
13.
After
cross examination, the defence closed its case and applied for
absolution from the instance. The thrust of counsel's attack
comprised,
inter alia,
that
plaintiff had not demonstrated the necessary capability for flying
the kind of aircraft he was employed to fly and the court
could not
take his word for it. Counsel stressed the applicability of the best
evidence rule. His claim extends beyond March 2016,
a period for
which he had neither his visa nor ratings. Plaintiff is seeking
relief that the court cannot grant, namely, relief
in US dollars
relying on a contract where remuneration is depicted in Kwanza,
adding that the court can only enforce a contract
on its terms. There
was, of course, reference to the payments made by the defendant
(which were all denominated in Kwanza) with
the conclusion that the
defendant's liability pertaining to the 2015 contract had been
extinguished. Consequently, there was no
case for the defendant to
answer to. After a brief interlude, I refused the application and the
parties continued. I had undertaken
to provide my reason/s at the
end. These then are my reasons:
14.
I
had indicated during the trial, that I was not going to engage in an
overall evaluation of the plaintiff's case and I still do
not do so
at this point. Neither is it necessary to do so. I reasoned that some
aspects of the plaintiff's case called for answers.
For example, in
relation to the 2015 claim, the two failed payment attempts made in
November and December 2015 in amounts one may
consider significant in
the circumstances of this case. These called for answers. In other
words, a
prima facie
case
had been made. It is trite law that the test is not whether,
following the plaintiff's case, the court should or ought to find
in
favour of the plaintiff, but whether it might find for the plaintiff.
Fortifying my views are the words of the SCA in
De
Klerk v Absa Bank Ltd
[8]
,
in an appeal against a ruling of
dealing with absolution from the instance. The court reasoned the
issue as follows:
'... ... ... The question in this case is
whether the plaintiff has crossed the low threshold of proof that the
law sets when a
plaintiff's case is closed but the defendant's is
not.'......
'[10] The correct approach to an absolution
application is conveniently set out by Harms JA in
Gordon Lloyd
Page
&
Associates v Rivera and Another 2001
(1) SA 88
(SCA) at 92E-93A:
'[2] The test for absolution to be applied by a
trial court at the end of a plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(A) at 409G-H in
these terms:
"...(W)hen absolution from the instance is
sought at the close of plaintiff's case, the test to be applied is
not whether the
evidence led by plaintiff establishes what would
finally be required to be established, but whether there is evidence
upon which
a Court, applying its mind reasonably to such evidence,
could or might (not should, nor ought to) find for the plaintiff.
(Gascoyne v Paul and Hunter
1917
TPD 170
at 173;
Rufo Flour
Mills (Pty) Ltd v Adelson(2)
1958
(4)
SA 307
(T).)"
This implies that a plaintiff has to make out a
prima facie
case - in the sense that there is evidence
relating to all the elements of the claim - to survive absolution
because without such
evidence no court could find for the plaintiff
(Marine
&
Trade Insurance
Co
Ltd v Van der
Schyff
1972
(1) SA 26
(A) at 37G-38A; Schmidt Bewysreg 4
th
ed at 91-2). As far as inferences from the evidence are concerned,
the inference relied upon by the plaintiff must be a reasonable
one,
not the only reasonable one (Schmidt at 93). The test has from time
to time been formulated in different terms, especially
it has been
said that the court must consider whether there is "evidence
upon which a reasonable man might find for the plaintiff
' (Gascoyne
(foe cit))
- a test which had its origin in jury trials when
the "reasonable man" was a reasonable member of the jury
(Ruto Flour
Mills). Such a formulation tends to cloud the issue. The
court ought not to be concerned with what someone else might think;
it
should rather be concerned with its own judgment and not that of
another "reasonable" person or court. Having said this,
absolution at the end of a plaintiff's case, in the ordinary course
of events, will nevertheless be granted sparingly; but when
the
occasion arises, a court should order it in the interests of
justice.'
15.
There
is more one could refer to, to demonstrate the presence of prima
facie case but as I had indicated early on, it is not necessary
to
embark on a wholesale evaluation of the plaintiff's case at this
stage. But before I conclude, I believe it may be appropriate
to
refer to one passage in the
De
Klerk
[9]
case where, light heartedly, the
court shared the following:
'[43] I refer back to what I have said in para
[1] about the risks attendant upon an absolution application at the
end of the plaintiff's
case. I recall, when I was young at the Bar, a
story of a judge (I forget his name, but he was quite well
remembered) who said
to counsel 'Mr So-and-So I am prepared to give
you absolution if you insist, but let the consequences of an appeal
be on your head'.
Counsel for the defendant (who perhaps has better
cause to be well remembered) withdrew his application. '
It was my conclusion then, that the plaintiff's
case had reached the necessary threshold of a
prima facie
case.
16.
At
the start of the second day of the trial, the plaintiff, having come
under attack by the defence for failing to provide proof
of
plaintiff's ratings, applied to open its case to introduce some
documents to prove plaintiff's qualifications. The application
was
resisted by the defence, correctly so, as the time for discovery had
closed and no good reasons had been shown for failing
to discover the
documents. Accordingly, the ruling was that the plaintiff ought to
have foreseen the need to have his claims backed
up by the relevant
documentation, given the highly regulated nature of the profession.
The parties proceeded but I had kept in
mind to address this point
and I do so now. Counsel had insisted upon the best evidence as proof
that plaintiff was capable of
flying the aircraft in question.
Plaintiff had attached his licence as a pilot but failed to attach
his ratings, which he testified
had expired in June of 2016. He
further added that if it was the case that he did not have the
requisite qualifications to fly
the Learjet, the Angolan authorities
would have never allowed him to fly the aircraft.
17.
Sometimes,
the best evidence may derive from inference. As counsel made his
point, I reasoned, based on the highly regulated nature
of the
profession, which the defence itself had alluded to, that it would be
highly improbable that based only on the employer's
due diligence, an
applicant for the position of pilot for this type and size of
aircraft would simply be put on it to fly without
any clearance from
the regulatory authorities concerned with aviation in that particular
country. I came to the ineluctable conclusion
that there must be an
international protocol which must bind the various states given the
attendant risks, otherwise the entire
aviation industry would be
plunged into disrepute. The risks extend way beyond the risk facing
the particular employer and the
regulatory authority of the country
that is responsible for the recognizing the candidate's credentials.
In
De Klerk
[10]
the court had occasion to refer (in
the circumstances of that case, which were quite different from the
present) to what constitutes
best evidence and it noted:
'Facts may be proved not only by direct
evidence but by inference also - a man's intentions may be provable
through the observations
of others. That one should not be
doctrinaire about what constitutes 'best evidence' is well
illustrated by the case of
Arendse v Maher
1936 TPD 162.
A
widow sued for damages resulting from the loss of her husband's
support. Greenberg
J
pointed out that had the evidence of an
expert on actuary been led it would have been of great assistance.
Without it, he had to
make all sorts of calculations and assumptions.
But this did not deter him from arriving at an amount. '
18.
Based
on the risk that could materiailze were an unqualified person be
allowed to fly this type and size of aircraft, I inferred
it is
almost unthinkable that there would be no risk mitigation strategies
to minimize such a risk. On these grounds, I was not
persuaded that
the defence had a point.
Defendant's
defence
19.
Testifying
through an interpreter the defendant gave very little. I attributed
the reticence to the language barrier and nothing
more. Neither would
one conclude that counsel was gentle during cross examination.
Nonetheless, in the main, the defendant denied
that he was obliged to
remunerate the plaintiff in USD in terms of the 2015 contract. He
denied that the document signed in January
2016 was meant to be a
valid and enforceable contract of employment adding that it was
signed with the exclusive intention of enabling
him to purchase
dollars on the Angolan market in order to effect payment due to the
plaintiff in respect of services rendered during
February 2015 to
January 2016. He further referred to Presidential Decree 106 of 2011,
issued on 25 May 2011
[11]
,
in terms of which, with effect from 31 August 2011, remuneration in
an employment contract concluded in Angola, for services rendered
in
Angola, to an Angolan citizen, could only be expressed in Angolan
Kwanza. Consequently, it was offensive to the law of Angola
to
provide for payment of remuneration in USD in the circumstances of
the 2016 contract. As against the claim for remuneration
pertaining
to the year 2016, he responded thus: For the plaintiff to have been
lawfully employed he had to: a) obtain an employment
visa; (b) his
contract of employment had to be registered with the Angolan
Department of Labour to be valid and enforceable. (c)
The document
plaintiff relies on (the 2016 agreement), contrary to the 2015
agreement, was never registered with the Department
of Labour as the
law demands. Accordingly, no employment visa could have been issued,
making it impossible for the plaintiff to
have been .lawfully
employed in terms of the alleged contract.
20
I interpose here that the defendant gave
a convoluted narrative about why plaintiff was not entitled to
remuneration for the 2016
contract during cross examination. He first
stated that the plaintiff was not working for him. I understood this
to mean that plaintiff
had carried out no work for the defendant's
benefit. Then came this complicated part: He stated that he had no
intention that plaintiff
would still be working for him because the
aircraft was in South Africa. He could not explain why he did not
cancel the contract
if those were his intentions. He added that the
aircraft plaintiff was employed to fly was delivered during December
2015 to second
defendant for service and since then plaintiff never
flew the aircraft again. He referred to the following payments made
to the
plaintiff:
i) USD 47
500 -15 April 2015
[12]
=
Kwanza 5 850 453 ;
ii)
Euro 13 300 - December 2015 = Kwanza 2
902 800
iii)
USD 9500 - (no date) = Kwanza 1 235 000
iv)
USD 18000 -June 2016 = Kwanza 3 600 000.
In summation, defendant stated that his liability to the plaintiff in
terms of the 2 February
2015 contract amounted to Kwanza 12 350 000.
He had already paid plaintiff a total of Kwanza 13 583 253.
Consequently, no payment
is due to plaintiff.
The
scheme
21. Much
was made of the invoice issued by the plaintiff dated 25 March
2015
[13]
in the amount of USD 47 500 during his cross examination. The invoice
was handed in court by the defence as evidence of a stratagem
in
which both parties had participated to get plaintiff’s money
out of Angola. In the body of the invoice, items such as
aircraft
printer and catering equipment, along with prices for each item are
recorded, evidencing some form of trade between the
parties.
Plaintiff confirmed that nothing had been sold to the defendant. The
defence referred to two further pieces of evidence
which were said to
be in furtherance of the scheme. These are the payment requisitions
marked RL5 in the amount of R897 750 and
RL6, Euro 63 000
[14]
with the beneficiary noted as Sophia's Chocolate. Plaintiff confirmed
that Sophia is his wife. If the plaintiff is to be believed,
he did
no more than respond to a request by the defendant in order to
expedite the repatriation of his remuneration to South Africa.
He
identified the account into which the funds were deposited as 'my
account'. He refuted the idea that he had knowingly participated
in a
scheme of any kind and noted that he had duly filed his returns with
South African Revenue Services (SARS). According to the
plaintiff,
salaries of expats are the last in the queue in terms of processing
in Angola. The defendant denied having made the
request and the
statements relating to the queue in the processing, stating that
there was no such thing. He went further and explained
that the
plaintiff had informed him about his tax problems in South Africa and
requested that he be paid in cash. When the scheme
caught the
attention of the Angolan authorities, they investigated. Since then
it became difficult to make payments to the plaintiff.
22. I note that
the two payment requisitions failed. I have also noted from several
papers provided
by the parties that the account number remained the
same, whether the beneficiary is noted as R Laas or Sophia's
Chocolate, making
it difficult or more correctly, undesirable, for
this court to make hasty deductions. I find it noteworthy to record
that an invoice
had been issued, in circumstances where the nature of
the income (a salary) required no such invoice which, on the face of
it,
may potentially create an opportunity for certain deductions, the
nature of which is not ordinarily permissible in the space of
employment income such as expenses incurred in the production of
income. Whether or not there had been a scheme is not a matter
for
this court to enquire into. On the basis that there is insufficient
information, I take the issue no further.
Analysis
Whether
plaintiff is owed any money by the defendant on the strength of the
January 2016 contract
23.
I propose to start with the 2016
contract. This is the contract which was attacked by the defence as
invalid. I note that no evidence
was led as to the content of the law
of Angola that makes it invalid. Nonetheless, I hold the question of
whether the contract
is invalid at this point and deal with the rest
of the points raised by the defence against it. To the extent that it
may be necessary,
I mention this contract in the discussion regarding
the rules of private international law.
(i)
Plaintiff rendered no
services to the defendant post December 2015
24.
Counsel
for the defendant submitted that plaintiff rendered no services to
the defendant post December 2015. He mentioned that the
basis of
plaintiff’s employment was to render services as a pilot, in
Ondjiva. Consequently, plaintiff was not entitled to
any remuneration
for 2016. Plaintiff accepted that the last time he flew the aircraft
was in December 2015 when he brought it for
service to the second
defendant. It might be the case that plaintiff is not entitled to
claim a salary for the rest of the months
he is claiming in 2016 but
I reach that conclusion for different reasons. Having said that, I
disagree that plaintiff is not entitled
to a salary for the month of
January 2016. It is correct that plaintiff's core obligation with the
defendant was to discharge services
as a pilot. Notwithstanding, it
is a fact that the plane was delivered to the second defendant for
service on 18 December 2015.
Aside from the fact that it was already
nearing year end, there was no way plaintiff could fly the aircraft
while it was being
attended to. The aircraft may have been serviced
in Namibia, Angola or USA, the effect would have been the same: that
he would
not have been able to fly an aircraft while it was being
serviced. For that reason, there is no basis to deny plaintiff his
salary
for January 2016.
(ii)
Plaintiff did not have the
necessary papers to carry out his work with the defendant
25.
In
the second instance, counsel submitted that plaintiff's last visa
expired on 2 March 2016 and, for the plaintiff to perform his
duties
with the defendant he was required to have a valid work visa. Since
the plaintiff had no valid employment contract at the
time, no work
visa could have been issued by the Angolan authorities. Against this,
plaintiff testified that he had left his passport
with the defendant
for the latter to apply for his work visa in December 2015, a
statement that was denied by the defendant. In
my view, the issue is
not only confined to the fact that plaintiff's visa expired on 2nd
March, it extends to the fact that throughout
his their interaction
at the time, not once did the plaintiff enquire about the progress of
his visa to demonstrate he was still
interested in returning to
Angola, his place of employment.
26.
Yet
he knew that without a valid work visa he could not discharge
services with the defendant.
(iii)
Plaintiff's conduct
27.
It
is common cause that plaintiff queried the issue of his outstanding
remuneration and employment status prior to departing for
South
Africa in December 2015. In response, he was provided with the
payment requisition of R897 750. At that time, he also signed
the
contract which was meant to commence on 1 February 2016 (the January
2016 contract). While in South Africa, he realized that
the payment
had not gone through and made further enquiries, including enquiries
about his employment status. He made enquiries
on both issues
continually until May of 2016. While there can be no questions raised
regarding the constant enquiries about his
outstanding pay, it is the
enquiry relating to his employment status that concerns me. He had a
contract to cover him but disregarded
it. In pursuit of his claims
for the months of April, May, June 2016 (plaintiffs version is that
he had been paid for the months
of January to March), he is placing
reliance on the very contract he disregarded in 2016. When confronted
during cross examination
about the repeated enquiries about his job
in the face of the January 2016 contract, his answer plainly avoided
the question. He
explained that he was concerned that the defendant
was having financial problems or problems in remitting money to South
Africa
and he knew that the aircraft required a lot of money to fix.
Neither answer addressed the question in my view. An employee who
suspects that his employer is experiencing financial problems is
hardly ever going to supplicate for his employment. He will, in
all
probability, seek alternative employment. Neither does the answer
regarding difficulties in transmitting funds to South Africa.
Both
reasons will most likely drive even the most loyal of employees in
the opposite direction.
28.
Nonetheless,
upon a proper evaluation of the record, one infers that plaintiff
must have resolved he was better positioned to assert
his rights for
his unpaid emoluments while on South African soil. I must hastily
record that there can be no criticism leveled
against the plaintiff
in that regard. What I disagree with is the fact that he wants the
defendant to pay for his stay in South
Africa while he was busy
asserting his rights in recovering his outstanding emoluments, in
circumstances where he knew that his
services are to be discharged in
Angola. I refer to the email of 18 February 2016
[15]
from the plaintiff to the defendant, the relevant parts of which
read:
' After our conversation, I do not know
where I am with you. I do not think you trust me anymore do to what
is best for you and
your aircraft.......Please give me an indication
if you still need my services because I need to start looking for
another job If you are not interested for me to work for you ,
could
you please let me know urgently and pay me my outstanding salary.
I have been committed to you and have tried my best to help you where
I can......' Best regards Riaan.
29.
Once
again, he disregards the employment contract as he calls upon
defendant to make it clear whether he wants his services or not.
In
subsequent e-mails the gloves are off as plaintiff is unequivocal
that he is not returning to Angola unless certain conditions
are met.
I refer to his e-mail of 24 March 2016
[16]
.
The relevant parts read:
I trust you are well,
.....
You will understand that I
cannot
return to Angola without salary and without knowing if you are able
to pay me the previous and future salary.
I understand the
difficulty sending money out of Angola, but please understand that I
cannot leave my family without money or being
able to arrange for
money.... I
am
still committed to working for you.....'
30.
By
putting the defendant on terms, plaintiff made his intention plain
that he was not returning to Angola unless his employer met
the
conditions set forth in the e-mail, namely, the payment of his
outstanding salary and an undertaking that he would be paid
his
future emoluments. Yet he testified in his examination in chief that
there was a shortage of dollars in the Angolan market.
The shortage
of foreign currency in the Angolan market is not a matter the
defendant could control. From the onset, this was a
present threat in
their relationship which plaintiff should have investigated. Finally,
in his email of 9 May 2016, plaintiff wrote:
' Please ask Chefe (his way of referring to
the defendant) to answer me on the emails I send YESTERDAY about my
job and when I will
receive my and Wynand's Salaries. Also I need my
passport... ...Many thanks, Riaan"
(copied
as is).
31.
This
is the same passport he had left with the defendant for his visa
application. Without even so much as an enquiry about the
progress
into the process, he is calling for his passport. Plaintiff had made
up his mind that he was not going back to Angola
to work for the
defendant. The constant enquiries about his job must have been a sop.
A further inference to be drawn from the
last email is that the two
employees must have been sharing their stories about the outstanding
pay, otherwise there would have
been no basis for the plaintiff to
enquire about his co-pilot's outstanding salary. It is also likely
that they may have been collaborating
because shortly after this
e-mail, in May, the aircraft was the subject of an attachment order
pursuant to court proceedings instituted
by the co-pilot. Two months
later, a further attachment order followed, pursuant to application
proceedings launched by the plaintiff.
32.
In
his founding affidavit
[17]
, plaintiff averred:
'On Friday 22 July 2016, I was in
conversation with one Werner Nothnagel, being the accountable manager
at 2nd respondent where
the aircraft is currently positioned. I have
certain documents in my possession that needs (sic) to be used in the
current servicing
of the aircraft. I was also under the impression
that I
am
still
in the employ of the 1
st
Respondent and suggested that I do the post service flight. During
this conversation, I was informed by Mr Nothnagel that he was
informed I
am
not
allowed to come to there and that he was waiting written confirmation
of the instruction by the 1
st
Respondent that I am not allowed near the aircraft.'
33.
The
founding affidavit- to the motion proceedings to attach the aircraft-
was ready for the plaintiff to depose to two days after
the
plaintiff's conversation with Nothnagel. Surely plaintiff had no
intention of going back to Angola and his mind was made up,
not in
July, but early in the year of 2016. He had no visa to work in
Angola. It expired on 2 March 2016 yet he made no follow
up enquiries
about his visa. For all these reasons, plaintiff is not entitled to
any remuneration post 31 January 2016 and his
claim for same is
unsustainable on the facts. Consequently, it is not necessary to
consider the question of whether the 2016 contract
is valid. In the
event I am wrong, I again touch on it when I deal with the discussion
on rules of private international law.
Whether
the defendant has discharged his obligations with the plaintiff in
terms of the 2015 contract?
34.
The
contract signed by the parties in 2015 states that the remuneration
is Kwanza 950 000. The plaintiff however states that he
was informed
that he would be paid USD 9500 and so he was paid. The defendant
con9eded that he paid plaintiff in dollars but it
was purely a means
to assist the plaintiff to take his money out of the country just as
he had done with many other foreigners.
Such assistance cannot be
turned into an obligation when the contract states he must pay in
Kwanza. He added that if plaintiff
was of the view that he was owed
anything more, it was available in Angola in Kwanza. Perhaps it is
apposite to quote the remuneration
clause in the 2015 contract in
full. It reads:
'The employee has the right to
a
remuneration paid on
a
monthly basis in the amount of 950
000.00
....'
35.
Counsel
for the plaintiff submitted that in interpreting this clause the
court would need to have regard to the contract as a whole,
its
nature, the surrounding circumstances including the exchanges between
the parties prior to reaching the agreement and how the
parties
conducted themselves in the discharge of their obligations. In short,
he advocated to the court to have regard to the factual
matrix or
background information. In so doing, counsel referred the court to
the case of
V v
V
[18]
and submitted that the court adopt an interpretation which would
yield commercial or business sense. In addition, that having due
regard to the two failed requisitions of R897 750 and Euro 66 500,
the logical conclusion can only be that defendant owes plaintiff
a
salary for the seven months in respect of the 2015 contract plus the
claim arising from the 2016 contract, which I have already
dealt
with.
36.
In
response, the defence reminded the court that it was dealing with a
contract with foreign elements. As a result, the question
of choice
of law becomes relevant. Forsyth
[19]
suggests the four stages entailed in the choice of law as, (i)
jurisdiction, (ii) characterization, (iii) determining the
lex
causae (the law indicated by the relevant conflict rules as the law
governing the dispute),
and finally,
(iv) ascertainment of the content of the
lex
causae.
In addressing choice of law
in contractual obligation, the learned author goes on to state that a
contractual obligation cannot
exist in a vacuum. It must draw its
existence from a legal system, where norms specify that in the
particular circumstances a contractual
obligation exists
[20]
.
Parties to a contract are at liberty to choose the law that will
govern their relationship, referred to as party autonomy. Where
the
parties have not availed themselves of party autonomy, it is for the
court to establish the law that has to be applied to resolve
the
dispute. Forsysth
[21]
puts it as follows: The correct approach is for the court, having
determined that there was no choice of law, express or implied,
to
disregard the parties' intentions, actual or presumed, and weigh the
factual links between the agreement and the various relevant
legal
systems.
37.
The
leading authority in this regard is
Standard
Bank of South Africa v Eifroken
[22]
where it was espoused that in the
absence of any further indicators, the
lex
loci contractus
(the law of the
place where the contract was concluded) governs the contract unless
the contract is to be performed elsewhere in
which case the
lex
loci solutionis
(the law of the
place where performance takes place) applies. A peek through the
recently decided cases confirms that this still
is the position. For
example, in
Society of Lloyds v
Rohman, lsle
[23]
the same approach to establishing
the
lex causae
was
confirmed:
'This approach was confirmed by Trollip J in
Guggenheim v Rosenbaum
[24]
(2): According to English and our law the proper law of the contract
is the law of the country which the parties have agreed or
intended
or are presumed to have intended shall govern it; and in the case of
a contract concluded in one country to be performed
in another, then
in the absence of an express term or any other indication to the
contrary, it can be presumed that the proper
law is the law of the
latter
(le x loci solutionis).'
38.
There have been some developments lately
which suggest a more centered or rather, objective approach. For
example, in
Ziphakamise Capital
Caterers v Wolmarans
[25]
where the court was also concerned
with an international contract, it noted:
'In terms of the test to apply in determining
the proper law of contract and
jurisdiction the court in
Kleinhans
(supra)
noted that the subjective test which was applied in
Standard Bank
of SA v Efroiken & Newman
1924 AD 171
at 185
had not been
rejected. However, the court preferred the objective test which was
enunciated in
Ex parte Spinazze & Another NNO
1985 (3) SA 650
(A).
The enquiry in terms of the objective test entails an
investigation into which law and jurisdiction "does the con
tract
have the most real connection?... "
39.
The
comments below from Lloyds
[26]
can only serve to re-affirm the shift towards the objective test.
Most importantly, it is clear from these cases that the task
facing
the court is not only about connecting the contract to a legal system
but the substance of the obligation, or the transaction
or, more
clearly, what must be done in terms of the contract.
'Booysen J also had regard to
lmprovair
(Cape) (Pty) Ltd v Establissements NEU
[27]
,
in which Grosskopf J pointed out
that the "traditional" approach of imputing an intention to
the parties was no longer
followed in English law. Thus in
John
Lavington Bonython and Others v Commonwealth of Australia,
Lord
Simonds stated that "the substance of the obligation must be
determined by the proper law of the contract, i.e., the system
of law
by reference to which the contract was made or that with which the
transaction has its closest and most real connection"
(the
so-called "Bonython formula"). This led Megaw LJ, in
Coast
Lines Ltd v Hudig
&
Veder
Chartering NV,53
to comment as
follows:
I think it is not without significance to note
that the connection which has to be sought is expressed to be
connection between
the transaction, i.e. the transaction contemplated
by the contract, and the system of law. That, I believe, indicates
that where
the actual intention of the parties as to the proper law
is not expressed in, and cannot be inferred from, the terms of the
contract
(so that it is impossible to apply the earlier part of the
Bonython formula, the system of law 'by reference to which the
contract
was made'), more importance is to be attached to what is to
be done under the [substance of the contract rather] than to
considerationsof
the form and formalities of the contract or
considerations of what may, without disrespect, be described as
lawyers' points as
to inferences to be drawn from the terms of the
contract.'
40.
Coming
back to the case under consideration and looking at the following
connecting factors:
i.
The
contract was concluded by the parties in Ondjiva, Angola.
ii.
The
contract makes reference to Angolan law, for example, the requirement
that the contract be registered or filed with the Employment
Centre,
(was said to be a reference to the Department of Labour in Angola).
It was not disputed that the contract had been so filed.
iii.
It
required plaintiff to render services in Ondjiva, Angola. Counsel was
emphatic on this point that notwithstanding the suggestion
that the
plaintiff flew the aircraft in and around Angola, Namibia and South
Africa, the fact remained that aircraft ultimately
returned to its
hangar in Lubango, Angola.
iv.
Plaintiff
had to obtain a valid work visa from the Angolan government;
v.
His
license, even though it was issued in South Africa had to be
recognized by the Civil Aviation Authorities in Angola;
vi.
The
contract is written in Portuguese, a language that is spoken in
defendant's home country; and,
vii.
Plaintiff's
remuneration was denominated in Kwanza and paid from Angola. There
can be no doubt that the substance of the obligation
or the
transaction between the parties has its closest and most real
connection to the Angolan legal system. Before I leave this
discussion, it is comforting to note that using the centered or the
objective test is in harmony with the rules as espoused in
Standard
Bank v Eifroken
[28]
for, that ruling is binding to this
court.
41.
The difficulty however, is neither the
plaintiff nor the defendant led any expert witness to establish the
content of the Angolan
law. In the circumstances, where my own
research yielded little to nothing, I am grateful for the assistance
offered by both counsel
as both referred me to various authorities as
means of addressing the situation. Counsel for the plaintiff referred
the court to
the unreported case of
Stars
Away International Airlines (Pty) Ltd v Thee
[29]
and that of
Casey
and Another v First Rand Bank Limited
[30]
.
In referring the court to the
aforemenitoned cases, counsel demonstrated that the courts have
frequently made orders in US dollars.
It needs to be mentioned, based
on the circumstances of the case being considered. None other than
the case of
Maschinen Former GmbH
&
Co
Kg v Trisave Engineering
[31]
was on point. The extract produced
here below confirm that sentiment. The case was referred to by the
defendant's course:
'It is trite that a South African Court cannot
take judicial notice of what the law of a foreign state is, unless
that law can be
ascertained readily and with sufficient certainty
(section 1(1)
of the
Law of Evidence Amendment Act, No. 45 of 1988
).
Each aspect of foreign law is a factual question that has to be
proved by someone with the necessary expertise (See: Schlesinger
v
Commissioner for Inland Revenue 1964(3) SA 389 (A) at 396G;
Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GmbH of Bremen
1986(4) SA 865 (C) at 874F). Neither of the parties have considered
it necessary to place any expert evidence before this Court
so as to
enable it to determine whether in terms of the law of Germany the
provisions of clauses VIII and
IX(2)
of the general terms and
conditions of sale, the Koblenz High Court has jurisdiction in
respect of suits arising from the agreement
of sale between the
plaintiff and the defendant. In the absence of such evidence, one is
driven to employ the contentious presumption
that laws of foreign
states are the same as that of the Republic of South Africa. Colman J
said the following thereanent in Bank
of Lisbon v Optichem Kunsmis
(Edms) Bpk 1970(1) SA 447 (W) at 451A:
"The presumption is, as I see it, no more
than an arbitrary rule of convenience. It is based, not upon a belief
that the laws
of all countries are the same, but upon a useful
fiction which facilitates the resolution of disputes and which works
no injustice
because it is always open to an interested party to
displace the presumption by proving that the relevant foreign law is,
in truth,
different from our own. These considerations are, to my
mind, no less appropriate to a matter which is governed in South
Africa
by a statute than to a matter governed by the common law."
42.
Accordingly,
I shall look no further than
Mashcinen
and adopt the useful fiction that
Angolan law is the same as
lex tori
in resolving this dispute. In
further submissions, counsel for the defence referred the court to
section 32 (1) (a) of the Basic
Conditions of Employment Act 97 of
1997 (the BCEA), and submitted that an employer, according to this
section, must pay an employee
any remuneration that is paid in money
in South African currency. Based on the presumption that the Angolan
law is identical to
South African law, it must be accepted that in
terms of Angolan law, the employer was obliged to pay the plaintiff
in Angolan currency.
This approach will accord with the express terms
of the 2014 and 2015 contracts. For this reason, the 2016 agreement
would be repugnant
of the presumed Angolan law and accordingly
unenforceable. I deal with the two submissions in turn.
43.
In
interpreting the contract and, in particular, the remuneration clause
counsel had already submitted, the court had to enforce
the contract
on its express terms. How the parties behaved towards each other, and
the pre-contract exchanges as alleged by the
plaintiff, i.e. that he
was told would be paid in US dollars are irrelevant. In so doing, in
terms of the 2015 contract, background
and factual matrix
disregarded, the defendant's liability to the plaintiff was to pay
the latter in Kwanza, not dollars and, given
the evidence of the
defendant's payments, there is no more money due to the plaintiff and
that should be the end of the case. Respectfully,
I do not agree with
that interpretation, given the following background facts: (i) the
two failed payments made at the end of December
2015 in the amount of
R897 750 and Euro 63 000. With no evidence of a successful payment
thereafter, if it is indeed the case that
the defendant had
discharged his obligations to the plaintiff, those payment attempts
ought to have an explanation; however, no
such explanation has been
tendered by the very party who attempted the payment. It cannot be
that in making those attempts the
defendant was still in pursuit of
assisting the plaintiff; (ii) the evidence that it was impermissible
to take the Kwanza out of
Angola; (iii) the payments made to the
plaintiff for the year 2014 and during 2015; all of which were made
in cash in 2014 in US
dollars (these payments are supported by pay
slips depicting US dollars), and in 2015 all the payments were in US
dollars bar one
which was in Euro; (iv) the parties' evidence that
since May 2015 there had been a shortage of dollars in the Angolan
market which
made it impossible to pay the plaintiff for some time;
and finally, (v) plaintiffs allegation that he had an agreement with
the
defendant that he would be paid in US dollars. I add to the
latter the following: given the parties' evidence that it was
impermissible
to take the Kwanza out of Angola, then it is highly
improbable that the plaintiff, in the absence of evidence that he had
intentions
to re-establish himself in Angola and relocate his family
there, would have agreed to be paid in Kwanza and accumulate Kwanza
in
Angola leaving his family in South Africa with no means of
support. It simply makes no sense. Reading the remuneration clause
with
complete disregard of all the factual matrix would produce an
absurd and insensible meaning to the contract. On this basis, the
background information introduced by both parties must be considered.
In this respect I can do no more than refer to the reasoning
of the
court in
Dexgroup (Pty) Ltd v
Trustco
[32]
'The attack in this case was that in
interpreting a particular clause - which was clear in its terms - the
arbitrator had regard
to extrinsic evidence to provide the context
within which the clause fell to be interpreted. On this basis and
another point, the
arbitrator had committed irregularity.
'In regard to the interpretation of the
contract it was submitted that the arbitrator was bound by 'the
well-established rule that
a contract must be interpreted by
construing its plain words' and that it is only in cases of ambiguity
or uncertainty that an
arbitrator can take account of surrounding
circumstances 'or its so-called factual matrix'. It is surprising to
find such a submission
being made in the light of the developments in
the interpretation of written documents reflected in
KPMG
Chartered Accountants (SA) v Securefin Ltd
&
another
[33]
and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[34]
.
These cases make it clear that in
interpreting any document the starting point is inevitably the
language of the document, but it
falls to be construed in the light
of its context, the apparent purpose to which it is directed and the
material known to those
responsible for its production. Context, the
purpose of the provision under consideration and the background to
the preparation
and production of the document in question are not
secondary matters introduced to resolve linguistic uncertainty but
are fundamental
to the process of interpretation from the outset. The
approach of the arbitrator cannot be faulted in this regard.'
44.
In
KPMG Chartered Accountants (SA) v Sercurefin
&
O
[35]
,
this is what the court had to say on interpretation:
'First, the integration (or parol evidence)
rule remains part of our law. However, it is frequently ignored by
practitioners and
seldom enforced by trial courts. If a document was
intended to provide a complete memorial of a jural act, extrinsic
evidence may
not contradict add to or modify its meaning
(Johnson
v Leal
1980 (3) SA 927
(A) at 9438). Second, interpretation is a
matter of law and not of fact and, accordingly, interpretation is a
matter for the court
and not for witnesses (or, as said in common-law
jurisprudence, it is not a jury question Hodge M Malek (ed) Phipson
on Evidence
(16 ed 2005) para 33-64. Third, the rules about
admissibility of evidence in this regard do not depend on the nature
of the document,
whether statute, contract or patent
(Johnson
&
Johnson (Ply) Ltd v Kimberly-Clark Corp
[1985] ZASCA 132
at
www.saflii.org.za),
1985 Burrell Patent Cases 126 (A)).
Fourth, to the extent that evidence may be admissible to
contextualise the document (since
'context is everything'}, to
establish its factual matrix or purpose or for purposes of
identification, 'one must use it as conservatively
as possible'
(Delmas Milling
Co
Ltd v du Plessis
1955
(3) SA 447
(A)
at 4558-C). The time has arrived for us to accept that there is no
merit in trying to distinguish between 'background circumstances'
and
'surrounding circumstances'. The distinction is artificial and, in
addition, both terms are vague and confusing. Consequently,
everything tends to be admitted. The terms 'context' or 'factual
matrix' ought to suffice. (See
Van der Westhuizen v Arnold
2002
(6) SA 453
(SCA) paras 22 and 23 and
Masstores (Pty) Ltd v Murray
&
Roberts (Pty) Ltd
[2008] ZASCA 94
;
2008 (6) SA 654
(SCA) para 7.)'
45.
I
conclude that the correct interpretation of the clause, reading into
it the factual matrix, is that the plaintiff would be paid
in US
dollars. In respect of his obligations in terms of this agreement,
defendant conducted himself in exactly that fashion not
because he
was helping; he was fulfilling his duties in terms of the agreement.
His repeated but failed attempts to make the transfers
during
November in the amounts of R897 750 and December 2015 in the
amount of Euro 63 000, demonstrate his efforts to uphold
that
agreement, otherwise there would have been no need for these
payments.
46.
With
regard to the second contract, based on the assumption that the
Angolan law would be exactly on the same footing as South African
law, it would not have been competent for defendant to pay the
plaintiff in US dollars as remuneration in South Africa in a contract
of employment between South Africans is paid in Rand. The contract
therefore would not have been enforceable. My view in this regard
is
fortified by the fact that neither the 2014 nor the 2015 contract
used the US dollar for remuneration. They both referred to
the
Kwanza. Notwithstanding, the parties paid each other in dollars and,
on the odd occasion, in Euro. Such conduct suggests that
there must
have been a legal impediment that the parties wanted to address with
the written agreement that the plaintiff be paid
in Kwanza, yet the
practice throughout the existence of their employment relationship
was to pay each other in US dollars. conclude
that the 2016 contract
must have been invalid in terms of Angolan law.
Conclusion
47.
The
plaintiff testified early in his examination in chief about an
instance when he was paid Euro13 000. Of this amount, Euro 9000
was
his salary and Euro 4000 was the co-pilot's. This payment took place
during 2014. He testified that he gave this money to the
co-pilot.
The amount allegedly paid by the defendant during December 2015 is
Euro 13 300, while the plaintiff acknowledges only
Euro 9000. Since
the defendant is an experienced businessman, there is no need to
debate the issue further and make unnecessary
credibility findings.
In the absence of proof, I accept the common amount between the
parties, Euro 9000. Plaintiff testified that
against the seven months
owed from year 2015 (as represented by the two payment requisitions,
RL5 and RL6), he was owed USD 66
500. He was paid USD 9500 in July
2016, which he decided to allocate to June 2015. This reduces the
debt of 2015 to USD 57 000.
He had further received USD 18 000 which
he allocated to February and March 2016. I have already ruled that
plaintiff is not entitled
to any remuneration beyond 31 January 2016.
Thus, the 18 000 must further reduce the outstanding USD 57 000.
48.
In
the result then, plaintiff is owed an amount of USD 39 000. I am not
entirely persuaded that it would be proper to mulct the
defendant
with all the costs in the circumstances of this case. Accordingly,
the following order is made:
i.
Plaintiff's claim succeeds
partially.
ii.
The defendant is hereby ordered
to pay the plaintiff an amount of USD 39 000 (using the exchange rate
as at date of this order.)
iii.
Interest is to be paid on the
said amount of USD 39 000 a
temporae
morae
iv.
The defendant is to pay 50% of
the plaintiff's taxed or agreed costs.
NN
BAM
ACTING
JUDGE OF THE HIGH COURT,
PRETORIA
DATE
OF HEARING:
13 May 2019
DATE
OF JUDGMENT:
17 July 2019
APPEARANCES
PLAINTIFF'S
ATTORNEY:
J Broodryk
J Broodryk Attorneys
67 Limpopo Road Avenue, Doringkloof ,
Centurion
DEFENDANT'S
COUNSEL:
Adv Steyn SC
Instructed by
Larson Falconer Hassan Parsee Inc.
Ridgeside Office Park
Umhlanga Rocks
DX
129, Durban
% Asger Gani Attorneys
Room 805, 8 Bryon Place
320 Schubart Street
Pretoria Central
Pretoria
[1]
Jamieson Neil v Sabingo, Amindor Cesar, Case No: 329/2000 SCA
Respondent, 27 March 2002 referring to ( Ve neta Mineraria
Spa
v Carolina Collieries (Pty) Ltd (in liquidation) 1987(4) SA 883(A)
at 886C)
[2]
Case number: 57379/16: Note: The order to attach the aircraft was
granted
ex parte
on 27 July 2016. Subsequent to the further
discussions between the parties, the defendant submitted to the
jurisdiction of this
court and as security, an amount of R850 000
has been attached in the defendant's attorneys' trust account. Costs
were also provided
for. On this basis, the aircraft was released.
[3]
The voucher is RL5, on page 80, of Exhibit 8, noted as Trial Bundle
A - 23 April 2019
[4]
The voucher is marked RL6 on page 82 of Exhibit B, noted as Trial
Bundle A - 23 April 2019
[5]
There is some confusion about what amount was paid when. In some of
the parties' papers in the record, the amount of USD 18 000
was paid
during July and the USD 9500 during March/April. In some areas the
amounts months of payment are swapped. But both parties
agree that
the amounts were paid.
[6]
As the months of March and April were short paid by USD 1000, the
total amount outstanding according to the plaintiff is the
six
months in 2015 (the last payment of USD 9500 having been allocated
to June 2015). and the unpaid months in 2016 which brings
the total
amount outstanding to USD 96 000.
[7]
Aircraft Maintenance Organization certification
[8]
Case No 176/2002 , SC A, 6 March 2002
[9]
Note 8 supra
[10]
Note 8 supra
[11]
Article 51 number
2 Law 209
, read with Law 2/12 of the Laws of the
Republic of Angola
[12]
This payment according to the plaintiff reached him on 17 June 2015
[13]
Exhibit AA7
[14]
Exhibit 8 , Trial Bundle A, 23 April 2019, pages 80 and 82. The
payments are dated 30 November2015 and 9 December respectively
[15]
Page 53/54 of Exhibit B, Trial Bundle A 23 April 2019
[16]
Pages 56 and 96 Exhibit B
[17]
26 .1- 4 on page 67-68
[18]
(A5021/12) [2016) ZAGPJHC 311 (24 November 2016)
[19]
Forsyth CF, Private International Law, 5th edition, 2012, page 10-11
[20]
Page 316
[21]
Page 330
[22]
1924 AD 171
[23]
Society of Lloyds v Romahn, Society of Lloyd's v Ilse ; Society of
Lloyd's v Ilse; Society of Lloyd's v Ilse (5108/03 , 5105/03
,
5107/03, 8588/04) (2006] ZAWCHC 7;
2006 (4) SA 23
(C) (3 March 2006,
para 47
[24]
1961
(4)
SA 21
at 31AB.
[25]
Ziphakamise Capitol Caterers (Pty) Ltd v Wolmaransand Others
(J537/04)
[2008] ZALC 82
(20 June 2008) para 37-38
[26]
supra
[27]
1983 (2) SA 138
(C) at 145FH. "Establissements" should
read "Etablissements"
[28]
Note 20 supra
[29]
Stars Away International Airlines (Pty) Ltd v Thee NO 2013 JDR 0106
(LC)
[30]
Casey and Another v First Rand Bank Limited 2014 (2) SA 374 (SCA)
[31]
Maschinen Frommer GmbH & Co Kg v Trisave Engineering &
Machinery Supplies (Pty) Ltd 415/02 cod 2002
[32]
Dexgroup (Pty) Ltd v Trustco Group International (Pty)
Ltd(687/12)[2013] ZASCA 120 (20 September 2013).
[33]
KPMG Chartered Accountants (SA) v Securefin Ltd & another
2009
(4) SA 399
(SCA) paras 39 and 40.
[34]
19.Natal Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) paras 18 and 19.
[35]
Note 33 supra