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[2019] ZAGPPHC 381
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Companies and Intellectual Property Commission v Zwane (73548/2018) [2019] ZAGPPHC 381 (8 August 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES :
YES/
NO
CASE NO: 73548/2018
In
the matter between:
COMPANIES
AND INTELLECTUAL PROPERTY COMMISSION
Applicant
and
PHUMULANI
ZWELITHINI RAPHAEL ZWANE
Respondent
JUDGMENT
Tuchten
J
:
1
The
applicant (CIPC) applies to have the respondent disqualified from
serving as a director under s 69(8) of the Companies Act,
and/or
declared delinquent or under probation under s 162(3) of the
Companies Act.
[1]
For this purpose, counsel for CIPC offered three draft orders, marked
A, B and C respectively, depending on the conclusions to
which I
come.
2
It
is not in dispute that CIPC has standing to seek these orders and I
shall not extend this judgment with a recitation of why this
is so.
3
The
respondent is an experienced chartered accountant. He used to be
employed by the National Development Agency (the NOA). From
2010 to
2015, he was the chief financial officer of the NOA. On 6 November
2011, the respondent was appointed by the Minister of
Energy to the
board of directors of the South African Nuclear Energy Corporation
SOC Limited (NECSA).
4
In
the letter of that date appointing the respondent to the board of
NECSA, the Minister referred the respondent to the Nuclear
Energy
Act
[2]
and the Public Finance Management Act
[3]
and "other applicable governance prescripts" to which the
Minister said the appointment was subject. The Minister wrote
in the
letter:
The [Nuclear Energy] Act provides that a
director who is in the full-time service of the State shall not be
paid any remuneration
for the services rendered by him as a director
of NECSA, nor shall any such director be paid any travel and
subsistence allowances
at a rate other than that applicable to him by
virtue of such service.
5
In
fact, the respondent did claim and accept director’s fees for
his services as a board member of NECSA. He even declared
in his
declarations of interests which he rendered annually to the NOA that
he was doing so. The Minister took the view that in
receiving and
retaining the remuneration from NECSA, the respondent had acted "in
direct breach of the instructions of the
National Treasury" and
decided to remove the respondent from office as a director of NECSA.
The Minister informed the respondent
of her decision on 6 November
2014.
6
The
respondent tried through a number of avenues to reverse the
Minister's dismissal decision. He first laid a complaint with ClPC
itself. An inquiry was instituted. Then, before CIPC reached any
conclusion, the respondent brought an application to this court
under
case no. 21254/2015 (the respondent's application). The respondent
cited the Minister of Energy, NECSA and the CIPC as first,
second and
third respondents respectively.
7
In
the respondent's application, the respondent sought orders declaring
his termination as board member of NECSA unlawful and setting
it
aside, reinstating him and reimbursing him for board meetings he had
not been allowed to attend and costs.
8
Several
of the issues which arose before me were also in issue in the
respondent's application, which came before Molopa-Sethosa
J. It is
part of CIPC's case before me that I should decline to revisit those
findings on the basis of issue estoppel.
9
Molopa-Sethosa
J dismissed the respondent's application. He tried to appeal the
judgment, all the way up to the Constitutional Court
but was never
granted leave to appeal.
10
Using
the findings in the judgment on the respondent's application, CIPC
has brought the present application. This is an appropriate
point to
explain the three draft orders which counsel for CIPC presented.
11
Draft A seeks a declaration that the
respondent is disqualified under s 69(8)(b)(iii) read with s 69(9)(a)
of the Companies Act
from serving as a director of any company for a
period of five years calculated from 1 November 2014.
12
Subsections
69(8) and (9), as far as they are relevant for present purposes read:
Ineligibility and disqualification of
persons to be director or prescribed officer
(1)
…
(2)
A
person who is ineligible or disqualified, as set out in this section,
must not-
(a)
be
appointed or elected as a director of a company, or consent to being
appointed or elected as a director; or
(b)
act
as a director of a company.
(3)
A
company must not knowingly permit an ineligible or disqualified
person to serve or act as a director.
(4)
A
person who becomes ineligible or disqualified while serving as a
director of a company ceases to be entitled to continue to act
as a
director immediately, subject to section 70 (2).
(5)
…
(6)
…
(7)
…
(8)
A person is disqualified to be a
director of a company if
(a) …
(b) subject
to subsections (9) to (12), the person- (I)
(ii) …
(iii)
has
been removed from an office of trust, on the grounds of misconduct
involving dishonesty; or
(iv)
…
(aa) …
(bb) …
(cc) …
(9)
A disqualification in terms of
subsection (8) (b) (iii) or (iv) ends at the later of-
(a)
five
years after the date of removal from office, or the completion of the
sentence imposed for the relevant offence, as the case
may be; or
(b)
at
the end of one or more extensions, as determined by a court from time
to time, on application by the Commission in terms of subsection
(10).
13
Draft
B asks that the respondent be prohibited and permanently disqualified
under s 69(8)(a) of the Companies Act from serving as
a director of
any company. Section 69(8)(a) may be engaged if a court has
prohibited a person from being a director or declared
the person to
be delinquent under s 162 of the Companies Act.
14
Draft C seeks to have the respondent
declared delinquent under s 162(3) read with s 162(5)(c) of the
Companies Act and disqualified
under s 69(8) read with s 165(6)(b)
from serving as a director for a period of seven years calculated
from the date on which the
order is made.
15
Subsections 162(4), (5) and (6), upon
which CIPC relies, read in relevant part:
(4)
Any
organ of state responsible for the administration of any legislation
may apply to a court for an order declaring a person delinquent
if-
(a)
the
person is a director of a company or, within the 24 months
immediately preceding the application, was a director of a company;
and
(b)
any of the circumstances contemplated in
subsection (5) (d) to (f) apply with respect to any legislation
administered by that organ
of state.
(5)
A court must make an order declaring a
person to be a delinquent director if the person-
(a)
consented to serve as a director, or
acted in the capacity of a director or prescribed officer, while
ineligible or disqualified
in terms of section 69, unless the person
was acting-
(i)
under the protection of a court order
contemplated in section 69 (11); or
(ii)
as a director as contemplated in section
69 (12);
(b)
while under an order of probation in
terms of this section or section 47 of the Close Corporations Act,
1984 (Act 69 of 1984), acted
as a director in a manner that
contravened that order;
(c)
while a director-
(i)
grossly abused the position of director;
(ii)
took personal advantage of information
or an opportunity, contrary to section 76 (2) (a);
(iii)
intentionally, or by gross negligence,
inflicted harm upon the company or a subsidiary of the company,
contrary to section 76 (2)
(a);
(iv)
acted in a manner-
(aa) that amounted to gross
negligence, wilful misconduct or breach of trust in relation to the
performance of the director's
functions within, and duties to, the
company; or
(bb) contemplated in section 77 (3)
(a), (b) or (c);
(d)
…
(e)
…
(f)
…
(6)
A declaration of delinquency in terms
of-
(a)
subsection (5) (a) or(b) is
unconditional, and subsists for the lifetime of the person declared
delinquent; or
(b)
subsection (5) (c) to (f)-
(i)
may
be made subject to any conditions the court considers appropriate,
including conditions limiting the application of the declaration
to
one or more particular categories of companies; and
(ii)
subsists
for seven years from the date of the order, or such longer period as
determined by the court at the time of making the
declaration,
subject to subsections (11) and (12);
16
Although, as I shall show, CIPC's case
is that the respondent is indeed a person disqualified under s 69 and
that while so disqualified,
the respondent acted as a director, it is
not ClPC's case in the present application that the court should act
under s 162(5)(a).
I shall therefore say no more about this aspect.
CIPC's case at this level is that the respondent intentionally or by
gross negligence
inflicted harm on NECSA by soliciting and accepting
director's emoluments. That situation is contemplated by s
162(5)(c)(iii).
Counsel for CIPC submitted that relief should be
granted in terms of in terms of Draft A together with either Draft B
or Draft
C.
17
Before I consider the central factual
issue in the case, I must deal with one more legal aspect: whether
the respondent was an employee
of the state. In the respondent's
application, he argued that he was, as an employee of a state owned
entity, not an employee of
the state. The argument was repeated
before me, on the analogy with companies, where each has a separate
legal personality; so
that at common law an employee of a subsidiary
is not an employee of the holding company.
18
The argument was dealt with by
Molopa-Sethosa J in her judgment. She pointed out that the NOA was a
public entity as contemplated
by s 1 of the PFMA (which meant that
the NOA as such was subject to its provisions) and held in paragraph
35 that (I paraphrase)
the distinction which the respondent sought to
draw between the state and the entities it created to achieve its
governmental purposes
was not one of substance. The learned judge
rejected the argument of the respondent and held that, as a matter of
law, as an employee
of the NOA, the respondent was indeed an employee
of the state.
19
This is an aspect of the case where I
think issue estoppel should be applied. Issue estoppel is a
recognised part of our law. Where
an issue of fact of law has been
decided in an earlier court case between the same parties and it is
unlikely that inequitable
or unfair consequences will arise, a party
will be precluded from rearguing the issue. Each case will depend on
its own facts.
A court asked to invoke issue estoppel must consider,
amongst others, questions of equity of fairness not only to the
parties themselves
but to others. See
Smith
v Porrit and Others.
[4]
20
I can think of no considerations,
whether of fairness and equity or otherwise, that might preclude the
application of issue estoppel
on this issue. The determination of the
issue was central to the determination of the respondent's
application. It must therefore
have been considered by all the other
courts to which the respondent sought to appeal the order in the
respondent's application.
Those other courts included the
Constitutional Court. To the extent that the finding constitutes
precedent, it settles the law
for many public servants in a similar
position to the respondent. I hold that the respondent is indeed
estopped from seeking the
reconsideration of the finding.
21
If I am wrong and I ought to reconsider
the position afresh, then I would hold that the finding is clearly
correct. Interpretation
of documents requires a unitary consideration
of text, context and purpose.
[5]
In the present case, the purpose of the measure guides the correct
interpretation. The purpose of the measure is to ensure that
public
servants in the full time service of the state receive their
remuneration from one source only, thereby reducing the risk
of
conflicts of interest and preferent treatment of some public servants
over others. And, I might add, preventing public servants
from being
paid from the public purse twice for their time. There can be no
rational distinction in this regard between the two
categories of
public servants under discussion.
22
Although counsel for the respondent did
not address the point in oral argument, in his heads of argument
counsel submitted
in limine
that
the present application was incompetent because, so the argument ran,
under s 162(3) of the Companies Act, CIPC was required
to bring the
present application within 24 months of the date on which the
respondent was removed as a director of NECSA.
23
This is not correct. Section 162(3)
reads in relevant part:
The Commission or the Panel may apply to a
court for an order declaring a person delinquent or under probation
if
(a)
the
person is a director of a company or, within the 24 months
immediately preceding the application,
was
a
director of a company; and
(b)
any of the circumstances contemplated
in-
(i) subsection
(5) apply, in the case of an application for a declaration of
delinquency; or
(ii) …
24
On
CIPC's case, the circumstances ins 162(5)(c)(iii) apply. Whether they
have been established is of course the question I must
decide. But
the essence of a point
in limine
such
as this is that the case of the opponent is, as it were, excipiable.
I think the argument proceeded on the misconception that
s 162(3)(a)
required CIPC to establish in the present case that the respondent
was a director of
NECSA
in
the preceding 24 months. But that is to misread the measure. It
requires an applicant in the position of CIPC merely to allege
and
prove that the respondent was a director of
a
company, not any specific company.
25
To
recapitulate, it is established that the respondent received
director's emoluments while he was a full time employee of the state.
It is common cause that the respondent was removed from the office of
director of NECSA on the grounds of misconduct involving
dishonesty.
Section 69(8)(b)(iii) of the Companies Act provides in terms that a
person who has so been removed from office is disqualified
to be a
director of a company.
26
I
am of course well aware that the respondent denies misconduct. But he
was held by the Minister to have so misconducted himself
and the
Minister's opinion was upheld by all the courts in which the
respondent sought to challenge and overturn it. Unless and
until the
decision to remove the respondent as a director of NECSA for
misconduct is overturned, it has legal consequences, one
of which is
that the respondent is disqualified to be a director of a company.
27
A
disqualification under s 69(8)(a)(iii) ends, under s 69(9), five
years after the removal from office. It then follows, inevitably,
that the declaration in Draft A must issue.
28
Counsel
for the respondent, commendably in my view, conceded this point
forthrightly in oral argument. Counsel further accepted
that the
respondent was indeed presently a director of certain companies.
Counsel said that the directorships flowed from the respondent's
current position as chief financial officer of the University of
South Africa.
29
Counsel's
concession prompted me to invite the respondent whether he should not
reconsider his position as to Draft A, apologise
for acting as a
director while disqualified from doing so and seek an accommodation
with CIPC in relation to the balance of the
relief sought. I
adjourned the proceedings for this purpose but no apology or change
of stance was forthcoming from the respondent.
30
The
way is now clear to determine the central factual issue in the case.
31
One
of the important factual findings in the respondent's application
related to the date on which the respondent sought approval
from the
NDA's executive authority, its chief executive officer Dr Nhlapo. It
will be recalled that the Minister offered to appoint
the respondent
to the NECSA board by letter dated 6 November 2012.
32
The
respondent's case is that he wrote a letter dated 13 November 2012 to
the CEO of the NOA asking for approval so to act and that
such
approval was promptly granted in writing on a copy of the letter
dated 13 November 2012. I shall call the copy of the letter
dated 13
November 2012 conveying the alleged approval "the 2012 approval
letter". The respondent says that he lost the
2012 approval
letter but in 2014 found that he needed it. He then, in 2014, sent a
fresh copy of the letter dated 13 November 2012
to the CEO and a copy
of the letter of 13 November 2012 was once again returned to him by
the CEO signifying approval for him to
act as a director of NECSA but
dated 10 October 2014.
33
In
the papers in the respondent's application, the CEO disputed this
version and said that the first time that she, the CEO, was
approached for approval for the respondent to act as a director of
NECSA was in 2014 and that no such letter dated 13 November
2012 had
been sent to her in 2012.
34
Molopa-Sethosa
J found that the respondent's version in this regard fell to be
rejected on the papers as untrue. CIPC submitted
before me that issue
estoppel ought to be applied to this finding.
35
But
in the present case, the respondent submitted credible evidence,
which had not been before the court in the respondent's application,
ie that a letter relating to an "appointment to serve on NECSA
Board" had indeed been received by the CEO's assistant
on 13
November 2012. I think that on this evidence, the version of the
respondent that he wrote to the CEO in November 2012 asking
for
approval to sit on the NECSA board and that such approval was granted
ought not to be rejected on the papers as false.
36
I
of course intend no criticism of the judge in the respondent's
application or any of the other judges who considered that case.
But
on the evidence now before me, I think it would be unfair to estop
the respondent from asserting that he indeed sent the letter
of 13
November 2013 to the CEO on that date. Having regard to the
Plascon-Evans
principle,
I must decide this case on the footing that the respondent did send
the letter as he alleges and that he received the
CEO's approval to
act as a director of NECSA.
37
Justice
therefore requires that I assess, independently of the findings in
the respondent's application, whether he, as contemplated
by s
162(5)(c)(iii) of the Companies Act, acted in a manner that amounted
to gross negligence, wilful misconduct or breach of trust
in relation
to the performance of his functions within and duties to
NECSA.
38
By
soliciting and receiving director's emoluments from NECSA in
circumstances in which he was not entitled to do so, the respondent
misconducted himself and breached his trust to NECSA. The crucial
question is whether he did so wilfully (ie in the knowledge that
he
was not entitled to receive such emoluments and NECSA was not obliged
to pay them to him) or was grossly negligent in doing
so. I shall now
address that question.
39
One
ought then to ask this question: why, at the time that the Minister
appointed the respondent a director of NECSA, or indeed
at any time
thereafter, did the respondent not directly seek a ruling on his own
specific individual situation?
40
In
his founding affidavit in the respondent's application, the
respondent contended that as a matter of law he was not an employee
of the state and for that reason did not regard the Minister’s
warning in his appointment letter dated 5 November 2011 as
applicable
to him. In his answering affidavit in the present application, the
respondent makes the case that as at that date his
"understanding
at the time" was that the Minister was referring only to people
who were directly employed by the state
and not those employed by
state owned entities or institutions, such as the NOA
41
Why
would the respondent conceivably have thought that a distinction in
this regard was being drawn between employees of the state
and
employees of its entities and institutions? He said in his answering
affidavit that the Minister's appointment letter was sent
to him
under cover of an email dated 9 November 2012 from the company
secretary of NECSA. He points out that this email called
on him to
provide his banking details for "purposes of payment of Board
fees".
42
This
request for banking details, the respondent asserted, grounded his
belief that he was entitled to receive directors' emoluments.
He
demonstrated that NECSA drew the same distinction and paid all its
other directors in the respondent's position director's emoluments.
Although CIPC seeks to cast doubt on this allegation, it is not
contradicted. Additionally, the respondent annually completed and
submitted returns to the NOA declaring that he received director's
emoluments from NECSA. The Auditor General reported on these
disclosures and reported, apparently with approval, that the
management of NECSA had commended the respondent for having made
these disclosures.
43
A
factor which weighs against the respondent's general credibility on
this issue is that he did not take unpaid leave from the NOA
for the
time that he spent attending to the affairs of NECSA. The respondent
admits that he began in 2014 to have doubts about
the correct
interpretation of the categorisation of those employees of the state
who were not allowed to receive director's emoluments
from NECSA.
44
Nevertheless,
I cannot reject on the papers the respondent's version that for some
time he believed that he was entitled to receive
director's
emoluments. There appears to have been a prevalent belief in the NOA
and NECSA that, arbitrary as it may have been,
a distinction existed
between persons employed directly by the state and persons employed
by the state through its agencies for
purposes of director's
emoluments.
45
But
at a later stage, the respondent began, on his version, to have
doubts. These arose from directives put out by the Treasury.
The
directive in force in 2012 provided that:
Employees of National, Provincial and Local
Government, Agencies and Entities of Government serving on Public
Entities are not entitled
to additional remuneration.
46
The
2012 directive, the respondent says did not cause him to doubt that
he was entitled to director's emoluments. But in 2014, the
language
of the directive changed. It read:
Employees of National, Provincial and Local
Government
Institutions ,
Agencies
and Entities of Government serving
as
office-bearers
on
Public Entities are not entitled to additional remuneration.
[6]
47
The
respondent says that the change in language between the two
directives gave rise to his doubts and that these doubts caused
him
to seek clarification from the Treasury. The clarification sought by
the respondent was first done over the telephone and then
formalised
in emails. The respondent did not ask for a ruling specific to
himself. But the respondent, speaking as a director of
NECSA, sought
in general terms clarification of the directive which might cover his
own situation. The answer that he got, in an
email dated 13 October
2014 from a Mr Chris Kruger was this:
Any person working for a public entity can
technically serve on another public entity's board. The question
which needs to be clarified
beforehand may be the one on "conflicting
interests". I do not think that an executive manager of the same
entity can
serve on its board as an independent (private) member,
besides being there in an ex officio capacity.
Should a person from another entity want to
serve on your board, he/she should obtain the necessary approval from
the executive
authority to take up remunerative work outside his/her
official duties (the principle is established for public servants
appointed
in terms of the Public Service Act, 1994 (Proc. No. 103 of
1994( (see section 30 of the said Act), and there should be a similar
provision for each entity.
48
The respondent says in his answering
affidavit in the present case that he understood Mr Kruger's
clarification to mean that he
had to get the necessary approval from
his executive authority, in this case the CEO of the NOA, to "take
up remunerative
work outside" his duties.
[7]
49
It was this understanding that prompted
the respondent to re-send his initial request for permission to serve
on the NECSA board
to his CEO in 2014. So far, so good.
50
But as the respondent must have known,
the position (on the respondent's version) had changed; and not so
subtly, either. The respondent
believed (again on his version) in
2012 that once he had been given permission to act as a director of
NECSA, it followed as a
matter of law (because of the interpretation
he gave to the phrase "employee of the state") that he was
entitled to director's
emoluments. But in 2014, the respondent knew
that he had to ask his executive authority for permission to be
remunerated. Yet he
did not do so.
51
The respondent says that it was the very
Treasury clarification that he received which prompted him to obtain
confirmation of the
approval he had received from the CEO of the NOA
to take up his NECSA position. But he did not need it for
confirmation that he
was authorised to act as a NECSA director. At
that stage nobody disputed that he was entitled to act as a director.
What had changed
was that the Treasury had emphasised the need to
obtain permission
to receive
remuneration
for acting as a
director.
52
Why did the respondent not ask his
executive authority for permission to be remunerated as a director of
NECSA? There can be only
one answer. He knew that such
permission
would be refused. I cannot think of any reason why an honest CEO
would agree to the respondent's being paid twice for
his time. And
that explains the true reason why the respondent in 2014 sought
confirmation of the permission to act as director
which he had
received in 2012. Not because he thought that he needed to show he
had permission to act as director. Because he wanted
to use the
letter as cover after the event of the 2014 Treasury directive, even
though he knew it was not cover, for his double
remuneration.
53
The respondent is thus in the position
of a person who sedulously avoids taking the very action that would
lead to perfect clarity
on his position.
[8]
He must have known, and therefore did know, that he required
permission to receive director's emoluments. In fact, he says that
he
knew so. He must have known that if he drew attention to his position
by asking for permission
to be paid,
permission would be refused.
54
Counsel for the respondent referred in
argument to the situation around the necessity to ask for permission
to be paid as a grey
area. But it was not a grey area as far as the
respondent was concerned. He knew what the correct position was. He
thought that
if he was ever called to account for his conduct, he
could profit from the doubt that had, or still, existed amongst his
colleagues
in similar positions.
55
The conclusion, then, is that from the
date the respondent received the email dated 13 October 2014 from Mr
Kruger of the Treasury.
He knew he was not entitled to receive
director’s emoluments from NECSA unless he had permission from
the CEO of the NOA
to do so. He did not seek such permission. He
continued to receive emoluments. He has kept all the emoluments he
received. He has
not apologised at all for his conduct but has tried,
without justification, to claim that he behaved honestly and
correctly.
56
CIPC
has thus established that the respondent, in soliciting and accepting
director’s emoluments from NECSA, at least from
13 October
2014, acted in a manner that amounts to wilful misconduct and breach
of trust in relation to the performance of the
respondent's duties to
NECSA. CIPC has thus brought the respondent within the scope of s
162(3) of the Companies Act and is thus
entitled to an order
declaring the respondent delinquent.
57
I turn to the question of sanction. I am
mindful, although I use the term sanction, that s 162(5) of the
Companies Act is not a
penal provision. Its purpose is to protect the
investing public against the type of conduct which leads to an order
of delinquency
and to protect those who deal with companies against
the misconduct of delinquent directors. The measure aims to protect
those
who deal with companies by ensuring that the management of
companies is in fit hands.
[9]
58
I bear in mind that the misconduct which
I have found proved against the respondent
was,
on the respondent's version,
prevalent amongst his colleagues in full time employ of the state who
served as directors of entities
such as and similar to NECSA. As the
respondent's counsel submitted, too, the respondent must not be made
a scapegoat for the misconduct
of others.
59
Against that, the respondent has
persisted in his untenable attempts to portray himself as a victim
and escape all the consequences
both of his own conduct and of law,
as it was found to be in the judgment on the respondent's application
and its subsequent conformation
by appellate bodies. Even after being
given a chance to reflect on his conduct by this court, he has
remained intransigent.
60
Under s 162(6)(b), the declaration of
delinquency, which under s 162(5) I must make, subsists for seven
years from the date of the
order or such longer period as determined
by the court at the time of making the declaration. In Draft C, CIPC
asks for an order
for disqualification for seven years. I shall
therefore not consider whether a more severe sanction would be
warranted.
61
Relief must therefore issue under Drafts
A and C. Costs will follow the result.
62
I make the following order:
1
The
respondent is declared to be disqualified in terms of s 69(8)(b)(ii)
read with s 69(9)(a) of the Companies Act, 71 of 2008 (the
Companies
Act) from
serving as a director of any company for a period of five
years calculated from 1 November 2014.
2
The respondent is declared delinquent in
terms of
s 162(3)
read with
s 162(5)(c)
of the
Companies Act.
3
The
respondent is declared disqualified in terms of
s 69(8)(a)
read with
s 162(6)(b)
of the
Companies Act from
serving as a director of any
company for a period of seven years calculated from the date upon
which this order is handed down.
4
The
respondent must pay the applicant's costs in this application,
including the costs of two counsel.
NB Tuchten
Judge of the High Court
8 August 2019
[1]
71 of 2008
[2]
46 of 1999
[3]
1 of 1999
[4]
2008 6 SA 303
SCA paras 10-11
[5]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012
4 SA 593
SCA and the cases which followed it.
[6]
My emphasis
[7]
Para 4.20.2 of the respondent's answering affidavit
[8]
Compare
R v Myers,
1948 1 SA 375
AD 382, where it was said
that a belief is not honest which, though in fact entertained by the
representor was itself the outcome
of fraudulent diligence in
ignorance - that is, of a wilful abstention from all sources of
information which might lead to suspicion,
and a sedulous avoidance
of all possible avenues to the truth, for the express purpose of not
having any doubt thrown on what
he desires and is determined to, and
afterwards does (in a sense) believe.
[9]
Gihwala and Others v Graney Property Ltd and Others
2017 2 SA
337
SCA paras 142 and 144