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[2019] ZAFSHC 46
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Eksteen v Road Accident Fund (4972/2016) [2019] ZAFSHC 46 (2 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
YES/NO
YES/NO
YES/NO
Case No.: 4972/2016
In the matter between:-
JOHANN
SEBASTIAAN
EKSTEEN
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
MUSI,
JP
et
LOUBSER,
J
et
MURRAY, AJ
HEARD
ON:
16
APRIL 2019
JUDGMENT
BY:
MUSI,
JP
DELIVERED
ON:
2 MAY
2019
[1]
This matter concerns the interpretation of section 2(1)(e)(ii) of the
Road Accident
Fund (Transitional Provisions) Act
[1]
(TPA).
It was referred to the Full Court by a single Judge of this Division.
[2]
The court
a
quo
was called upon to adjudicate a stated case pertaining to the
defendant’s special pleas of prescription and
lis
alibi pendens
in terms of Rule 33(1).
[2]
It was
made aware of disparate judgments of other Divisions and one of this
Division which differed from some of those. The learned
Judge
referred the matter to the Full Court after discussing the matter
with me but without seeking a formal directive as contemplated
in
section 14 of the Superior Courts Act.
[3]
[3]
At the hearing, we pointed this out to the parties and they submitted
that we should
proceed with the matter. We decided to proceed with
the matter in the interests of justice and expediency. The
alternative of removing
the matter from the roll for lack of a proper
directive would have been expensive and time consuming. Everybody was
ready and prepared
to move the matter to finality.
[4]
The agreed facts are as follows. On 18 June 2003, a collision
occurred between two
motor vehicles at the intersection of Monument
Road and Nico van der Merwe Avenue, Bloemfontein. The plaintiff was a
passenger
in one of those vehicles.
[5]
The plaintiff submitted a claim with the defendant within the
prescribed period of
time, in accordance with the provisions of the
Road Accident Fund Act as amended (Act).
[4]
The
plaintiff thereafter issued summons against the defendant in the
Magistrate’s Court, Bloemfontein. The summons was served
on 17
January 2008. The defendant filed a plea in the Magistrate’s
Court and that action is still pending in that Court.
The claim was
limited to an amount of R25 000 in terms of section 18(1) of the
Act.
[5]
The
limit was removed by the Road Accident Fund Amendment Act.
[6]
Sections
18(1)(a)(i), 18(1)(b) and 18 (2), as they read before 1 August 2008
were subsequently declared unconstitutional.
[7]
[6]
As a result of the declaration of invalidity the Legislature enacted
the TPA. The
TPA, in essence, gave a third party, who issued summons
in the Magistrate’s Court based on the section 18(1)
limitation,
the right to issue summons in the High Court without
running the risk of facing a special plea of prescription.
[7]
On 19 October 2016, plaintiff issued summons against the defendant
from this Court
claiming an amount of R1 764 200. This
claim was based on the same cause of action between the same parties.
The plaintiff
has, to date, not withdrawn the action in the
Magistrate’s Court. On 26 May 2017, the defendant filed its
plea wherein it
raised two special pleas,
viz
prescription and
lis
alibi pendens
.
[8]
The defendant pointed out that the prescription period in terms of
the Act is five
years. It contended that the plaintiff’s claim,
in this Court, has prescribed because the collision occurred on 18
June 2003
and summons was issued on 19 October 2016.
[8]
It
further contended that the plaintiff’s claim for non-pecuniary
loss has also prescribed on the same basis.
[9]
With regard to the special plea of
lis
pendens
,
he pointed out that the parties are already engaged in the
Magistrate’s Court in the matter arising out of the same
factual
matrix and cause of action.
[10]
The plaintiff contended that the claim has not prescribed because of
the provisions of section
2(e)(ii) of the TPA. The special plea of
lis
pendens
was resisted on the basis that section 2(e)(ii) permits a plaintiff
to litigate in two different
fora
against the same defendant based on the same
causa
.
[11]
Section 2 of the TPA reads as follows:
“
(1)
Unless the third party expressly and unconditionally
indicates to the Fund on the prescribed form, within one year
of this
Act taking effect, to have his or her claim remain subject to the old
Act, the claim of such third party is subject to
the new Act under
the following transitional regime:
(a)
Subject
to the remaining provisions of this Act, the cause of action of the
third party is deemed to have arisen on 1 August 2008
for purposes of
section 12 of the Road Accident Fund Amendment Act, 2005 (Act 19 of
2005), and section 17 (4A)
(b)
of
the new Act.
(b)
The
right of the third party to claim compensation for non-pecuniary loss
is limited to a maximum amount of R25 000, unless (i)
the third party
submits a serious injury assessment report as contemplated in
Regulation 3 of the Road Accident Fund Regulations,
2008, indicating
a serious injury, within two years of this Act taking effect;
and (ii) it is determined in accordance with
Regulation 3 of the Road
Accident Fund Regulations, 2008, that the third party suffered a
serious injury...
(e)
A
third party who has, prior to this Act coming into operation
(i) lodged a claim with
the Fund on the prescribed claim form in terms of the old Act, shall
not be required to lodge an RAF1 form
in terms of the new Act;
and
(ii) instituted an action
against the Fund in a Magistrate's Court, may withdraw the action
and, within 60 days of such withdrawal,
institute an action in a High
Court with appropriate jurisdiction over the matter: Provided that no
special plea in respect of
prescription may be raised during that
period...”
[12]
It is common cause that the plaintiff did not give notice to the
defendant as contemplated in
section 2(1) of the TPA. The claim of
the plaintiff is therefore subject to the new Act read with the TPA.
[13]
In terms of section 2(1)(b) of the TPA, the plaintiff’s right
to claim compensation for
non-pecuniary loss is limited to an amount
of R25 000, unless the plaintiff submits a serious injury
assessment report, indicating
a serious injury, within two years of
the TPA taking effect. The date of commencement of the TPA was 13
February 2013. It is common
cause that the serious injury assessment
report was submitted by the plaintiff to the defendant on 13 March
2014. It was therefore
submitted within two years of the TPA taking
effect. Plaintiff’s claim for non-pecuniary loss has therefore
not prescribed.
I turn to interpret section 2(e)(ii) of the TPA.
[14]
In
Natal
Joint
Municipal Pension Fund v Endumeni Municipality
[9]
the
proper approach to interpretation of documents, including
legislation, was expressed as follows:
“
[18]...Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory
instrument, or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of
the document as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration
must be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision
appears; the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more
than one meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not
subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent
purpose of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable,
sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide
between interpretation and
legislation. In a contractual context it is to make a contract for
the parties other than the one they
in fact made. The ‘inevitable
point of departure is the language of the provision itself’,
read in context and having
regard to the purpose of the provision and
the background to the preparation and production of the
document.”
[10]
[15]
In interpreting the section, we must pay due regard to the overall
scheme and purpose of the
Act. Although the section must be
interpreted purposively we must guard against ignoring the clear
language of the section under
the guise of adopting a purposive
interpretation.
[11]
[16]
In
Sekwere
[12]
,
an unreported judgment of this Division, the following was said about
the impugned section:
“
[10]
Section 2(e)(ii) is clear and unambiguous. When the new RAF Act was
promulgated, its main purpose was to do away
with the burdens of the
limitation and restrictions which the unconstitutionally declared s18
placed on claimants whose claims
far exceeded the R25 000
threshold i.e. restricting them to the Magistrates court regardless
of the fact that their claims
evidently exceeded the R25 000
threshold. The section is couched in permissive terms. This is
a clear indication that the
section is not peremptory and neither
does it oblige the claimants to first withdraw the Magistrates court
summons and only thereafter
issue same in the High court.
Neither does the section or any other section in the new RAF Act, for
that matter, make provision
for the step-by-step process which the
Fund contended the legislature had in mind. If the legislature
intended such a process
to be followed, it would have spelled that
out in the Act or in regulations which the legislature did not even
promulgate.
If anything, the new RAF Act is silent on what
steps a claimant in the same position as plaintiff (i.e. one who has
a claim pending
in the Magistrates court) must take once she has made
her election to transfer her claim to the High court. The new
RAF Act
does not even make reference to another prerequisite which
counsel for the Fund contended for, that the claimant should have
prosecuted
her claim to finality first under the original summons
(the Magistrates’ court summons).”
[13]
[17]
In
Klaas
[14]
the
learned Judge took a different view, and said:
“
[25] I
do not agree that the
Legislature did not provide a step by step procedure of
how the
summonses
or
court
actions were
to
be dealt with.
What
is to
be done
is very clear from the
provisions of section 2(1)(e)(ii) of the TPA. The Legislature, quite
logically, expected
that claimants who had
to go to the
Magistrates' Courts due to
the statutory
limitation
in the
quantum
of
their
claims
had
to
be
offered
a
transitional mechanism
to launch new actions in the High Courts, should there be a need. In
my view, the sequence
is very clear in the
provision. You withdraw the earlier instituted
Magistrate's Court
action and within 60 days of such withdrawal institute an action in
the
High Court.
I agree that the
wording
in
the
provision
is cast in
non-peremptory terms.
This,
in my interpretation,
is due to the fact
that
no claimant
was
obliged to
withdraw the
Magistrate's Court action. Some claims could be
well within the
jurisdiction
of
the Magistrate's Court despite the repealed limitation. The
Legislature was
well
aware
that
there
may
be
reasons
for
some
of
these
lawsuits
to
remain where they were
initially instituted, despite the
favourable legislative
changes.”
[15]
[18]
The purpose of the TPA is stated in the long title of the Act as to
provide for transitional
measures in respect of certain categories of
third parties whose claims were limited under the Road Accident Fund
Act (Act 56 of
1996), prior to 1 August 2008. The aim was therefore
to level the playing fields and create equality amongst third
parties. A ‘third
party’ is defined in the TPA as a
person who has a right to claim compensation from the Fund in terms
of section 17 of the
old Act, whose claim is subject to the
limitations imposed by section 18(1) or (2) of that Act, and whose
claim has, upon this
Act taking effect, not prescribed or been
finally determined by settlement or judgment.
[16]
It is
common cause that the plaintiff is indeed a third party.
[19]
It is clear from the judgments cited above that the different
interpretations are caused by the
way the word ‘may’ in
the context of section 2(1)(e)(ii) is interpreted. In all the
judgments it is correctly stated
that ‘may’ in this
context is couched in permissive terms. The true question, however,
is what is permitted? In
Sekwere
it was stated that the section permits a plaintiff to issue summons
in the High Court without first withdrawing the summons in
the
Magistrate’s Court. In
Klaas
it was stated that ‘may’ in this section means that no
plaintiff is obliged to withdraw the summons in the Magistrate’s
Court action, but must first do so before issuing summons in the High
Court.
[20]
I agree with the
Klaas
judgment. The word ‘may’ in the context of this section
means that a plaintiff has an election. The plaintiff may prosecute
the claim in the Magistrate’s Court until it is finalized or
the plaintiff may decide to institute the action in the High
Court.
The plaintiff may elect to continue with the claim in the
Magistrate’s Court because with or without the cap it may
fall
within the monetary jurisdiction of that court. He or She may decide
to amend the monetary value of the claim so that it is
more than the
cap but less than the maximum monetary jurisdiction of the
Magistrate’s Court or he or she may abandon the
amount which is
more than the maximum monetary jurisdiction of that court. ‘May’,
in this context, therefore means
that the plaintiff may, according to
his or her election, litigate in one of the two
fora
.
[21]
The interpretation in
Sekwere
to the effect that ‘may’ in the section gives the
plaintiff the right to litigate simultaneously in two different
fora
based on the same cause of action between the same parties is
untenable and not sensible. This is so because, first the defendant
would then be called upon to defend a matter arising out of the same
facts in the High Court and in the Magistrate’s Court
simultaneously and at great expense. Second, the same fate will
befall the plaintiff. Third, the Legislature, being omniscient,
must
be presumed to know that it is impermissible in our law to litigate
in two different
fora
,
at the same time, between the same parties based on the same cause of
action.
[22]
The absurdity of the interpretation advanced in
Sekwere
was pointed out in
Tshabalala
where the learned Judge said:
“
[32]
The plaintiff’s argument that the Section entitles her to
institute the action in the High Court without
first withdrawing the
one in the Magistrate’s court is difficult to appreciate, as,
firstly, it may render her summons in
the High Court excipiable on
the basis of
lis
alibi pendens
,
and, secondly, if it was not excipiable it would create an instant
defence to the defendant on that basis. The principle
underlying the defence of
lis
alibi pendens
is that there should be finality in litigation. If the
plaintiff’s argument is to be upheld, then the Transitional
Act
would be at cross-purposes with itself, as, on the one hand it would
endorse a plaintiff’s entitlement to pursue a fresh
action,
whilst on the other, it would create a good defence for a defendant
in terms of which the fresh action may be terminated.
This is
illogical. In interpreting the Section, it must be presumed
that the legislature would have neither intended nor
endorsed such
absurd consequences. Indeed, one of the reasons that the
legislature would have imposed the obligation upon
a plaintiff to
first withdraw the prior action is to prevent him/her from falling
foul of a potential
lis
alibi pendens
exception or plea in the new action.”
[17]
[23]
The Legislature could not have used words which are normally viewed
as being peremptory such
as ‘must’ or ‘shall’
instead of ‘may’ in this context. This would have meant
that the jurisdiction
of the Magistrate’s Court might be ousted
even in matters that fall squarely within its monetary jurisdiction.
[24]
The word ‘such’ in the section is also a relevant aide
for its interpretation. ‘Such’
is defined as ‘of
the kind, degree, or category previously specified or implied
contextually’.
[18]
The
prima
facie
logical or grammatical effect of the word is to require what has been
said before to be taken as having been repeated.
[19]
What
was previously specified that need not be repeated? It can be nothing
else but the withdrawal of the action in the Magistrate’s
Court. In the context of this section ‘such’ has a
grammatically intractable meaning and does not have an alternative
meaning. The words ‘within 60 days of such withdrawal’
therefore mean within 60 days from the date of the withdrawal
of the
action in the Magistrate’s Court.
[25]
The section should therefore be interpreted as follows. There must be
an action in the Magistrate’s
Court based on the cap. There
must be an election to prosecute that action in the High Court with
jurisdiction over the matter.
The plaintiff must first withdraw the
action in the Magistrate’s Court and within 60 days after the
withdrawal of the action
in the Magistrate’s Court institute
the action in the High Court. If the steps are followed in this
sequence the plaintiff
would be protected against a special plea of
prescription.
[26]
The reason why there must first be a withdrawal is to ensure that the
same action is not prosecuted
in two different
fora
.
Even if the new claim in the High Court shall have prescribed, the
plaintiff is afforded a shield for 60 days against a special
plea of
prescription. If the claim is withdrawn in the Magistrate’s
Court and it is not prosecuted in the High Court within
60 days, then
the plaintiff would be without Legislative protection against a
special plea of prescription. When the claim is instituted
in the
High Court within 60 days after the withdrawal of the Magistrate’s
Court action, then only the High Court would be
seized of the matter.
The withdrawal of the action in the Magistrate’s Court and
within 60 days thereafter instituting it
in the High Court, are
therefore conditions precedent to the protected institution of the
claim in the High Court.
[27]
The interpretation to the effect that the plaintiff may litigate
against the same defendant in
different
fora
at the same time based on the same causa renders the 60 days
nugatory. The interpretation that the true meaning of the section
is
to have only one forum seized of the matter at any given time, means
that the defence of
lis
alibi pendens
will not arise.
[28]
In
casu
,
both special pleas ought to succeed based on my interpretation of the
section.
[29]
My interpretation is consonant with that in
Klaas
.
In that matter the collision occurred on 1 April 2008. The plaintiff,
who was a passenger in one of the vehicles, issued summons
against
the Road Accident Fund out of the Magistrate’s Court for
R25 000, in terms of section 18 the old Act. On 30
April 2013,
whilst the Magistrate’s Court action was still pending, the
plaintiff issued summons from the High Court, based
on the same
causa
.
The defendant served its plea on 8 October 2013. On 28 May 2014, the
plaintiff withdrew the action in the Magistrate’s Court.
On 11
August 2015, the defendant amended its plea and incorporated a
special plea of prescription.
[30]
The learned Judge found that the Magistrate’s Court action was
supposed to have been withdrawn
first before the High Court summons
was issued. The Judge, however, opined that:
“
It
can never serve the purpose of the TPA that a claim validly
instituted in the Magistrate’s Court can be extinguished by
a
somewhat inadvertent issuing of new summons in the High Court and
withdrawal of the old summons. That would be a far cry from
purposive
interpretation of legislative provisions.”
[31]
The Judge found that the claim was saved by the provisions of the TPA
and had not prescribed.
It was clear that the claim in the High Court
had prescribed and that the one in the Magistrate’s Court had
been withdrawn.
The Judge inexplicably invoked the purposive approach
to interpretation to interpret a section which he had already
definitively
interpreted. He seems to have used the interest of
justice and equity under the guise of adopting a purposive
interpretation. In
that case all would have been lost for the
plaintiff which is not the case in this matter, because the claim in
the Magistrate’s
Court is still alive.
[32]
The Legislature has granted the plaintiff the right to institute the
action in the High Court without
the possibility of a special plea of
prescription being raised, during the window period. It has, however,
also directed that certain
formalities or conditions should precede
to the exercise of that right. The formalities or conditions must
therefore be rigorously
observed. In
Munro
v Dranklisensieraad, Welkom
[20]
the
learned Judge quoted Maxwell
[21]
with
approval where the latter said the following:
“…
Where
powers, rights or immunities are granted with a direction that
certain regulations, formalities or conditions shall be complied
with
it seems neither unjust nor inconvenient to exact a rigorous
observance of them as essential to the acquisition of the right
or
authority conferred, and it is therefore probable that such was the
intention of the Legislature...”
[22]
[33]
Moreover, this section takes away the defendant’s right to
raise the defence of prescription
whilst it gives the plaintiff the
right to sue after the claim has prescribed. The defendant is
therefore prejudiced, albeit for
a noble reason. This is a
further reason why there should be strict compliance with the
formalities and conditions in the
section.
[34]
The defence of
lis alibi pendens
is not necessarily
dispositive of a claim. We have a discretion to stay these
proceedings or to allow them to continue. This is
so because:
“
Where
the defence of
lis
pendens
is raised, the
onus
is on the plaintiff to satisfy the Court that the second proceedings
are not vexatious. The defendant, however, has no right to
a stay of
action. The Court has a discretion to stay the second proceedings or
to allow them to continue. The exercise of this
discretion will
depend on grounds of convenience and fairness…”
[23]
[35]
In this case, both special pleas were properly and meritoriously
taken. The special plea of prescription
is dispositive of the matter.
[36]
Although the claim for non- pecuniary loss has not prescribed it is a
composite part of the claim
emanating from one collision. It is
pending in the Magistrate’s Court. It would be in the interest
of justice, fair and convenient
that the entire claim be adjudicated
in the same forum.
[37]
The parties were correctly in agreement that costs should follow the
event.
[38]
I therefore make the following order:
1.
The defendant’s special pleas of
lis alibi pendens
and
prescription are upheld.
2.
The action is dismissed with costs.
C.J. MUSI, JP
I concur.
P.J. LOUBSER, J
I concur.
H. MURRAY, AJ
Appearances:
For the Plaintiff:
Adv N
Snellenburg SC
Instructed by Honey
Attorneys
Bloemfontein
For the
Defendant:
Adv M Mopeli
Instructed by Maduba
Attorneys
Bloemfontein
[1]
Road Accident Fund (Transitional Provisions)
Act
15 of 2012.
[2]
Uniform Rule 33(1) provides:
“
The
parties to any dispute may, after institution of proceedings, agree
upon a written statement of facts in the form of a special
case for
the adjudication of the court.”
[3]
Section 14(1)
of the
Superior Courts Act 10 of
2013
reads as follows:
“
(1) (
a
)
Save
as provided for in this Act or any other law, a court of a Division
must be constituted before a single judge when sitting
as a court of
first instance for the hearing of any civil matter, but the Judge
President or, in the absence of both the Judge
President and the
Deputy Judge President, the senior available judge, may at any time
direct that any matter be heard by a court
consisting of not more
than three judges, as he or she may determine.
(
b
)
A
single judge of a Division may, in consultation with the Judge
President or, in the absence of both the Judge President and
the
Deputy Judge President, the senior available judge, at any time
discontinue the hearing of any civil matter which is being
heard
before him or her and refer it for hearing to the full court of that
Division as contemplated in
paragraph
(
a
)
.
..”
[4]
Road Accident Fund
Act
56 of 1996
.
[5]
Section 18(1)
of the old Act read as
follows:-
“
The
liability of the Fund or an agent to compensate a third party for
any loss or damage contemplated in section 17 which is the
result of
any bodily injury to or the death of any person who, at the time of
the occurrence which caused that injury or death,
was being conveyed
in or on the motor vehicle concerned, shall, in connection with any
one occurrence, be limited, excluding
the cost of recovering the
said compensation, and except where the person concerned was
conveyed in or on a motor vehicle other
than a motor vehicle owned
by the South African National Defence Force during a period in which
he or she rendered military service
or
underwent military training in
terms of the Defence Act, 1957 (Act 44 of 1957), or another Act of
Parliament governing the said
Force, but subject to subsection (2) —
(a)
to
the sum of R25 000 in respect of any bodily injury or death of any
one such person who at the time of the occurrence which
caused that
injury or death was being conveyed in or on the motor vehicle
concerned —
(i)
for reward
;
or
(ii)
in the course of the lawful business of the owner of that
motor vehicle
;
or
(iii)
in the case of an employee of the driver or owner of that motor
vehicle, in respect of whom subsection (2) does not apply,
in the
course of his or her employment
;
or
(iv)
for the purposes of a lift club where that motor vehicle is a motor
car
;
or
(b)
in
the case of a person who was being conveyed in or on the motor
vehicle concerned under circumstances other than those referred
to
in paragraph
(a)
,
to the sum of R25 000 in respect of loss of income or of support and
the costs of accommodation in a hospital or nursing home,
treatment,
the rendering of a service and the supplying of goods resulting from
bodily injury to or the death of any one such
person, excluding the
payment of compensation in respect of any other loss or damage.
”
[6]
Road Accident Fund Amendment
Act 19 of 2005
.
[7]
Mvumvu and Others v Minister for Transport and
Another
2011 (2) SA 473 (CC).
[8]
Section 23(3)
Act 56 of 1996:-
“
(3)
Notwithstanding subsection (1), no claim which has been lodged in
terms of section 17 (4) (a) or 24 shall prescribe before
the expiry
of a period of five years from the date on which the cause of action
arose.
”
[9]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593 (SCA).
[10]
Ibid para [18].
[11]
Smyth and Others v Investec Bank and Another
Ltd
2018 (1) SA 494
(SCA) at paras
[28] and [45].
[12]
Sekwere v Road Accident Fund
ZAFSHC Case no 2691/2014 Delivered on 18 June 2015.
[13]
Ibid para [10].
[14]
Klaas v Road Accident Fund
(
25693/2013) [2015] ZAGPPHC 778 (17 September 2015)
[15]
Ibid para 25. See also
Buthelezi
v Road Accident Fund
(87223/14)
[2018] ZAGPPHC 449 (2 February 2018)
at para [26]
and
Tshabalala v Road Accident Fund
(27822/2013) [2015] ZAGPJHC 281 (21 October 2015) at paras [27] and
[29].
[16]
Section 1 of the TPA.
[17]
Tshabalala v Road Accident Fund
above para [32]
[18]
See The New Shorter Oxford English Dictionary
[19]
Nissan SA (Pty) Ltd v Commissioner for Inland
Revenue
[1998] ZASCA 59
;
[1998] 4 All SA 269
(A) at 275
[20]
Munro v Dranklisensieraad, Welkom, en 'n Ander
1964
(3) SA 164
(OPD) at 169.
[21]
Maxwell:
Interpretation
of Statutes
8
th
ed p 321-322.
[22]
See also
Rex v
Noorbhai
1945 AD 58
at 64 and
Strydom
v Die Land- en Landboubank van
Suid-Afrika
1972
(1) SA 801
(A) at 813.
[23]
Friedrich Kling GmbH v
Continental Jewellery Manufacturers; Guthmann and Wittenauer GmbH v
Continental Jewellery Manufacturers
1993
(3) SA 76
(C) at 83A-B.