Fairoaks Investment Holdings (Pty) Ltd. and Another v Oliver and Others (268/07) [2008] ZASCA 41; [2008] 3 All SA 365 (SCA); 2008 (4) SA 302 (SCA) (28 March 2008)

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Fairoaks Investment Holdings (Pty) Ltd. and Another v Oliver and Others (268/07) [2008] ZASCA 41; [2008] 3 All SA 365 (SCA); 2008 (4) SA 302 (SCA) (28 March 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 268/07
In the matter between :
FAIROAKS INVESTMENT HOLDINGS (PTY) LIMITED
...
First Appellant
WILLOW FALS ESTATE
...
Second Appellant
and
SUZETTE OLIVER
...
First
Respondent
HIGHLAND KNIGHT INVESTMENTS 140 (PTY) LIMITED
...
Second Respondent
T L JANSE VAN RENSBURG INCORPORATED
...
Third Respondent
THE REGISTRAR OF DEEDS, PRETORIA
...
Fourth Respondent
__________________________________________________________________________
Before: STREICHER, MTHIYANE, PONNAN JJA, HURT & KGOMO AJJA
Heard: 11 MARCH 2008
Delivered: 28 MARCH 2008
Summary: Sale of land – agreement of sale lapsed because of
non-fulfilment of suspensive condition – agreement to revive
agreement
of sale with amendments has to comply with provisions of
Act 68 of 1981.
Neutral citation: Fairoaks Investment v S Oliver (268/07)
[2008]
ZASCA 41
(28 March 2008)
__________________________________________________________________________
J U D G M E N T
__________________________________________________________________________
STREICHER JA
STREICHER JA
:
[1] In an action instituted by the
appellants against the respondents in the Transvaal Provincial
Division, the appellants claimed
an order interdicting the first
respondent from transferring a property described as the Remaining
Extent of Portion 171 Wilgespruit
190 IQ (‘the property’) into
the name of any person or entity other than the first or the second
appellant and an order directing
the first respondent to transfer the
property to the first appellant (‘the second appellant’s nominee)
alternatively the second
appellant. The first respondent took various
exceptions to the appellants’ particulars of claim on the ground
that they do not
disclose a cause of action. The court a quo upheld
the exceptions but granted leave to the appellants to appeal to this
court.
[2] In their particulars of claim the appellants
alleged:
2.1 The second appellant and the first respondent, on 9
April 2002, concluded a written agreement of sale in terms of which
the first
respondent sold the property to the second appellant for a
purchase price of R2 150 000.
2.2 In terms of the agreement of sale they agreed
(a) that the purchase price would be secured by a bank
guarantee payable against registration of transfer;
(b) that the agreement would be subject to the
fulfilment of three suspensive conditions contained in clause 13 of
the agreement and
that should any suspensive condition not be
timeously fulfilled the entire agreement would automatically lapse
and be of no force
or effect.
2.3 The suspensive condition recorded
in clause 13.2 of the agreement of sale required that the property be
rezoned and that the approval
by the relevant town planning authority
of a site development plan for a residential development of at least
fifteen housing units
per hectare be obtained within twelve months of
the date of signature of the agreement.
2.4 The suspensive condition
contained in clause 13.2 was not fulfilled within a period of twelve
months from the date of signature
of the agreement in consequence
whereof the agreement lapsed.
2.5
The
second appellant, represented by its attorney, on or about 8 August
2003, in a letter to the first respondent’s attorney (annexure
B1
to the particulars of claim), offered to revive the lapsed agreement
and, by way of a letter from her attorneys (annexure C1 to
the
particulars of claim), the first respondent, on or about 20 August
2003, accepted the offer.
[3] Paragraphs 11 to 16 of the
particulars of claim read as follows:
‘11 On or about 8 August 2003, the Second Plaintiff, represented by
its attorneys Izak Minnie Inc, who acted on the Second Plaintiff’s
written authority, offered to revive the lapsed agreement of sale by
addressing a letter bearing the said date to the First Defendant’s
attorneys, Dykes van Heerden Inc.
11.1 A copy of the said letter together with the undertaking therein
referred to is annexed hereto marked “B1”
11.2 A copy of the aforesaid written authorization of the Second
Plaintiff’s attorneys is annexed hereto marked “B2”.
12 On or about 20 August 2003 the First Defendant represented by her
said attorneys, Dykes van Heerden Inc, who acted on her written
authority, accepted the aforementioned offer to revive the lapsed
agreement of sale by way of a letter bearing the aforesaid date.
12.1 A copy of the said letter of acceptance is annexed hereto marked
“C1”.
12.2 The aforesaid written authorization, properly construed, is
comprised of clause 2.2 of annexure A hereto, a letter by Dykes
van
Heerden Inc. dated 18 July 2003 as well as the First Defendant’s
written response thereto dated 20 August 2003, true copies
whereof
are hereunto annexed marked “C2” and “C3”.
13 In the premises, the second plaintiff and the
First Defendant, represented as aforesaid, agreed in writing, by way
of annexures
“B1” and “C1” hereto, on 20
th
August 2003, to revive the said lapsed agreement
of sale.
14.1 It was an express term of the revived agreement of sale as
constituted by Annexures “B1” and “C1” hereto that clause
13.2 was thereby amended to the effect that compliance therewith was
to occur upon or before transfer of the property into the name
of the
Second Plaintiff or its nominee.
14.2 It was an implied term of the revived agreement of sale
constituted by Annexures “B1” and “C1” hereto, that such
revived
agreement further embodied all of the terms contained in
Annexure “A”, save for the aforesaid amendment of the provisions
of
clause 13.2.
14.3 The provisions of the amended clause 13.2 operated for the
benefit of the Second Plaintiff (or its nominee), whose nominee
advised
the First Defendant on 27 October 2004 in writing that it
waived the benefit of such condition.
14.4 A true copy of the aforesaid document containing the waiver is
hereunto annexed marked “C4”.
15. Alternatively to paragraphs 11 to 14 above:
15.1 On or about 20 August 2003, the First Defendant represented by
her attorneys, Dykes van Heerden Inc, advised the Second Plaintiff
orally and in writing that such attorneys were sending transfer
documents to the Second Plaintiff in order to enable the First
Defendant
to transfer the property in accordance with the provisions
of the agreement of sale, annexure “A” hereto.
15.2 On or about 20 August 2003, the First Defendant prepared and
produced copies of her identity document an antenuptial contract
for
purposes of preparing documentation for the transfer of the immovable
property in terms of the agreement of sale, annexure “A”
hereto.
15.3 On or about 21 July 2004, the First Defendant, represented by
her said attorneys, addressed a letter to the second plaintiff’s
attorneys, a copy whereof is annexed hereto marked “D”, in terms
whereof the First Defendant called upon the Second Plaintiff
to
produce guarantees in relation to the payment of the purchase price
in terms of the agreement of sale, annexure “A” hereto.
15.4 In conducting herself as set out above, the First Defendant
waived any right to rely on the failure of the suspensive conditions
recorded in clause 13 of the agreement of sale, annexure “A”
hereto.
16. In the premises, the Second Plaintiff became entitled, by no
later than 20 August 2004, to enforce the provisions of the agreement
of sale, annexure A hereto, alternatively, the revived agreement
embodied in annexures “B1” and “C1” hereto, against the
First
Defendant.’
[4] The first respondent took a
number of exceptions to the particulars of claim. The third of these
exceptions is to the effect that
in so far as the appellants’ claim
is based on paragraphs 11 to 14 and 16 of the particulars of claim it
fails to disclose a cause
of action in that the new contract for the
sale of land does not comply with the provisions of s 2(1) of the
Alienation of Land Act
68 of 1981 (‘the Act’). The fifth of these
exceptions is to the effect that in so far as the appellants’ claim
is based on
paragraphs 15 and 16 of the particulars of claim, no
cause of action is disclosed in that the contract of sale was void
ab
initio
by operation
of law and no rights existed between the first respondent and the
appellant which were capable of being waived.
[5] Section 2(1) of the Act provides:
‘
No alienation of land after the commencement of
this section shall, subject to the provisions of section 28, be of
any force or effect
unless it is contained in a deed of alienation
signed by the parties thereto or by their agents acting on their
written authority.’
It would appear from a reading of
paragraphs 11 and 12 of the particulars of claim that the drafter
thereof was of the view that the
alleged agreement by way of B1 and
C1 had to comply with the provisions of the section in that in
respect of both letters the allegation
is made that the attorney who
signed the letter acted on the written authority of his client.
However, in the court a quo and before
us the appellants conceded
that C1 and B1 did not comply with these provisions.
[6] The court a quo stated that the
only issues to be determined in deciding whether the particulars of
claim disclosed a cause of
action were whether there had been a
consensual revival of the agreement of sale with written amendments
or whether the first respondent
waived any right to rely on the
failure of the conditions recorded in clause 13 of the agreement of
sale. It held that because of
the non-fulfilment of the condition
recorded in clause 13.2 the sale lapsed by operation of law and was
deemed to be void
ab
initio
. The
agreement of sale could not be revived without amendments in that it
would automatically self destruct as a result of the non-fulfilment
of the condition which brought about its demise in the first place.
An agreement to revive it with the necessary amendments would
constitute a new agreement of sale which had to comply with the
provisions of s 2(1) of the Act. The agreement to revive relied upon
by the appellants was, therefore, not a valid agreement and in so far
as the appellants’ claim is based on that agreement no cause
of
action is disclosed.
[7] In
so
far as the appellants’ claim is based on an alleged waiver by the
first respondent to rely on the failure of the suspensive conditions
in clause 13 of the agreement of sale, the court a quo held that, as
the agreement of sale had lapsed and was void
ab
initio
, there were
no rights and obligations flowing from the agreement of sale which
were capable of being waived by the first respondent.
The court a quo
accordingly held that in so far as the appellants’ claim is based
on a waiver by the first respondent, no cause
of action is disclosed.
[8] According to the particulars of
claim the agreement of sale lapsed upon the non-fulfilment of the
condition contained in clause
13.2 of the agreement but was revived
by agreement
in
writing, by way of annexures B1 and C1, in its original form save for
an amendment of clause 13.2 thereof. The amendment is alleged
to have
been to the effect that fulfilment of the condition had to occur upon
or before transfer of the property into the name of
the second
appellant or its nominee.
[9] Annexure B1 consists of a letter
by the second appellant’s attorneys and an undertaking by the
attorneys to pay to the first
respondent’s attorney, for the credit
of the first respondent, the amount of R2 150 000 against –
(a) transfer of the property;
(b) cancellation of all existing bonds; and
(c) ‘receipt of confirmation that all the suspensive
conditions as is evident from the Deed of Sale between the respective
parties,
and with specific reference to rezoning of the property as
residential and the approval of the town planning authorities, have
been
complied with’.
The letter to which the undertaking
was attached refers to the transfer of the property and in paragraphs
2 to 4 thereof it is said:
‘
2
We
confirm our advice that, under cover herewith, the attorneys
undertaking agreed to is transmitted to you.
3 We further confirm your advice that same is in
order and that we will, as per your Ms Oliver’s instructions,
convey to Willow
Falls Estate’s Mr Hartzer that the process must be
proceeded with immediately.
4 We will also in consultation with him and Dykes
van Heerden, work out a time table for finalisation of the
outstanding issues and
transfer of the property.’
Of importance is the fact that in terms of the letter
read with the undertaking to pay –
the terms of the undertaking had been approved by the
first respondent’s attorneys;
the rezoning of the property had to precede transfer of
the property; and
the process had to be put in motion immediately.
[10] Annexure C1 is a letter by the first respondent’s
attorneys to the second appellant’s attorneys. It refers to the
transfer
of the property and reads:
‘
We refer to the above matter and to the
telephone conversation between Gillian of our offices and yourself on
the 20
th
August 2003 and confirm the following:
You will furnish us with the necessary company documentation, to
enable us to draw the relevant transfer documents.
We are to proceed without the re-zoning.’
[11] Counsel for the appellants
submitted that the allegation in paragraph 14.1 of the particulars of
claim was clearly wrong in that
it is apparent from a reading of C1
that the rezoning condition had been waived in terms of the agreement
to revive the agreement
of sale. He submitted, furthermore, that the
allegation in paragraph 14.3 that the benefit of the rezoning
condition was waived on
27 October 2004 should be understood as an
allegation that the waiver of the rezoning condition on 20 August
2003 was confirmed on
27 October 2004. Asked whether the matter did
not have to be decided on the basis alleged in the particulars of
claim he contended
that if a valid cause of action, although at
variance with the cause of action alleged in the particulars of
claim, could be constructed
from documents annexed to the particulars
of claim, the exception had to be dismissed. If that cause of action
differed from what
is alleged in the particulars of claim the
excipient’s complaint may be that the particulars of claim are
vague and embarrassing
but not that they fail to disclose a cause of
action, so he submitted. For these reasons the matter should,
according to counsel
for the appellants, be decided on the basis that
the agreement of sale had been revived without the condition that it
be subject
to the rezoning of the property sold.
[12] It is for an excipient who
alleges that a summons does not disclose a cause of action to
establish that, upon any construction
of the particulars of claim, no
cause of action is disclosed.
1
However, in the present matter there
can be no uncertainty as to the pleader’s intention. The
particulars of claim are clear. Moreover,
counsel for the appellants
did not contend that the particulars of claim could be construed in
different ways, he contended that
the particulars of claim were wrong
and argued the matter on a factual basis that had not been pleaded.
In my view it cannot be required
of an excipient to establish that
such a factual basis does not disclose a cause of action. In any
event there is no way that B1
and C1 can be interpreted, as the
appellant’s counsel urged us to do, to embody an agreement in terms
of which the second appellant
no longer required the rezoning of the
property as a precondition to the payment of the purchase price. The
undertaking to pay the
purchase price was specifically made subject
to the condition that rezoning had to take place.
[13] Read with paragraph 3 of B1 and
with the undertaking to pay the purchase price against fulfilment of
the condition requiring
rezoning of the property, the statement in C1
that the first respondent was to proceed without the rezoning, can be
interpreted to
mean that the process of transferring the property
should be set in motion, not finalised, even though the property had
not been
rezoned yet. This is the interpretation pleaded in the
particulars of claim. In para 14.1 it is alleged that it was an
express term
of the revived agreement of sale as constituted by B1
and C1 that clause 13.2 was thereby amended to the effect that
compliance therewith
was to occur upon or before transfer of the
property. In para 14.3 it is alleged that the provisions of the
amended clause 13.2 operated
for the benefit of the second appellant
(or its nominee) whose nominee advised the first respondent on 27
October 2004, more than
a year after the alleged agreement in terms
of B1 and C1, in writing, that it waived the benefit of the
condition.
[14] Counsel for the appellants
submitted that it was held in
Neethling
v Klopper and Others
2
that a contract for the sale of land
which had been cancelled could be revived by waiver of the rights
created by the cancellation
of the agreement and that an agreement to
do so does not constitute a fresh agreement of sale which has to
comply with the formalities
prescribed by s 2(1) of the Act. He
submitted that the same principle is applicable in a case where the
contract of sale lapsed
through the non-fulfilment of a condition.
The parties could likewise agree to waive the rights created by the
lapsing of the agreement
and such agreement would not constitute a
fresh agreement of sale which had to comply with the formalities. In
this regard he relied
on the judgment in
D
S Enterprises (Pty) Ltd v Northcliff Townships (Pty) Ltd
3
.
[15] In
Neethling
v Klopper
,
Neethling sold a farm to Klopper and others (‘Klopper’). The
purchase price was payable in instalments. Subsequent to the sale
Neethling claimed that he had validly cancelled the sale but Klopper
disputed his right to do so. In a letter dated 6 January 1966,
Klopper claimed transfer of the farm against payment of the full
balance of the purchase price and threatened to apply to court for
an
order that transfer be effected to him should Neethling not take
steps to transfer the farm to him. On 7 February 1966, Neethling
accepted Klopper’s offer to pay the balance of the purchase price
against transfer of the farm but later refused to pass transfer
and
contended that the contract for the sale of the farm had lapsed and
that the subsequent arrangement was invalid as it did not
comply with
the formalities prescribed by s 1(1) of Act 68 of 1957, the precursor
of s 2(1) of Act 68 of 1981. The arrangement did
not comply with such
formalities in that the letters were signed by the attorneys without
the written authority of their clients.
This court held that the
agreement reached in terms of the two letters did not have to comply
with these formalities.
[16] Dealing with an argument that
the contract
for the
sale of the farm had been amended in that it was agreed that payment
of the purchase price had to be effected earlier than
in terms of the
contract, Steyn CJ reasoned that amendments of material provisions of
an agreement of sale of land had to comply
with the formalities,
4
but, that the letter of 6 January
should not be seen as a proposal that the agreement be amended, as an
amendment of the contract
was not required in order to claim transfer
against payment of the purchase price.
5
[17] Assuming that the contract had
been validly cancelled the question was whether the contract was
revived by the letters of 6 and
7 January 1966.
6
Dealing with this question Steyn CJ
said that at common law, a party who validly cancelled a contract,
may with the consent of the
other party undo his cancellation with
the result that the contract is no longer affected by such
cancellation.
7
The question then arose whether the
common law position was affected by the provisions of s 1(1) of Act
68 of 1957 ie whether the
agreement embodied in the letters of 6 and
7 January should have complied with the provisions of the section. In
order to answer
this question Steyn CJ considered it necessary to
determine what the nature of the transaction was and proceeded to do
so.
8
He stated that, notwithstanding the
assumed validity of Neethling’s cancellation of the contract it
should be borne in mind that
Klopper consistently disputed that the
contract had been cancelled.
9
In the light of this attitude the
letters could not be regarded as a fresh offer to purchase and an
acceptance of such an offer. It
could not have been the intention of
Klopper to conclude a new contract to purchase and Neethling could
not have understood that
to have been Klopper’s intention.
Klopper’s letter of 6 January rather amounted to a tacit request
that Neethling waives his
claim to have validly cancelled the
contract and accepts Klopper’s request that transfer be effected to
him.
10
It followed that Neethling undid the
consequences of his cancellation, assuming that it was a valid
cancellation, with the consent
of Klopper thereby reviving the
cancelled contract. No new contract of sale had however been
concluded. This agreement between Neethling
and Klopper was not to be
equated with a contract of sale of land as intended by the section
and to not so equate it would not frustrate
the purpose of the
section.
11
[18] Steyn CJ concluded that for
these reasons the revival of a cancelled contract in respect of land
by waiver of the rights arising
from the cancellation of the contract
need not comply with the formalities prescribed in respect of
agreements for the sale of land.
12
Referring to this passage in the
judgment counsel for the appellant submitted that this court decided
that whenever parties agree
to the revival of a contract of sale of
land by way of a withdrawal of a cancellation of the contract,
compliance with the formalities
is not required.
[19] I do not think that Steyn CJ’s
concluding words were intended to be read in isolation. It is in my
view clear from his reasoning
that in order to determine whether an
agreement should comply with the prescribed formalities one has to
determine what the intention
of the parties was. In that case there
was a valid cancellation (so he assumed). But, the validity of the
cancellation was disputed
by Klopper. There was, therefore, a dispute
as to whether the contract had been validly cancelled and that
dispute was settled on
the basis that Neethling would waive his claim
to have validly cancelled the contract. In those circumstances he
found that there
was no intention to enter into a new contract of
purchase and sale. It does not follow that an agreed waiver of a
cancellation of
an agreement of sale would not constitute a new
agreement of sale where the parties were agreed that the contract had
been validly
cancelled. In each case the true nature of the
transaction will have to be investigated in order to determine
whether it constitutes
an agreement of purchase and sale. If the
intention was to buy and sell ie to enter into a new contract on the
same terms as the
cancelled contract, the agreement will have to
comply with the prescribed formalities even though the mechanism
employed to give
effect to that intention was the withdrawal of the
cancellation.
[20] In the present case we are of
course dealing with a contract which lapsed because of the
non-fulfilment of a suspensive condition
and not with an alleged
revival of a cancelled contract. In
D
S Enterprises
a
sale of land was subject to the condition that the purchaser would be
able to obtain permission to subdivide the property within
a period
of six months. The agreement provided that the ‘seller shall
accordingly advise the purchaser in writing, within a period
of six
months of date of signature hereof, whether this condition has been
fulfilled; in the event that the seller does not do so,
then, unless
the purchaser shall in writing waive such notice and/or fulfilment
within 14 days of expiration of such period, this
sale shall fall
away and be of no force or effect whatsoever, and any payments made
by the purchaser to the seller shall be refunded
without deduction
and together with interest thereon at 7 per cent per annum’. The
condition was not fulfilled and the purchaser
did not within 14 days
waive the non-fulfilment thereof. The parties nevertheless continued
to act as if nothing had happened. Accounts
were rendered to the
purchaser in respect of instalments payable in terms of the agreement
and the purchaser paid these accounts,
but the seller eventually
adopted the attitude that the agreement had lapsed because of the
non-fulfilment of the condition. Nicholas
J held that the provision
regarding waiver of notice by the purchaser was part of the machinery
designed to procure certainty, within
a period of six months and 14
days, on the question whether the agreement would remain in force.
That provision, he found was inserted
in the interests of both
parties, who could waive it by agreement between them. He found that
they did so and said that their conduct
amounted to an affirmance of
the contract and a dispensation of the termination of it.
13
In dealing with the argument that the
parties had concluded a new agreement which had to comply with the
formalities prescribed by
s 1(1) of Act 68 of 1957 he referred to
Neethling v Klopper
and concluded that the factual
differences between the two cases were not such as to render the
principle in
Neethling
v Klopper
inapplicable.
He added:
‘
In both cases the parties agreed that the
dissolutive fact should be nullified, and this had the result that
the contract was revived.
In
Neethling’s
case the parties did not conclude a new
contract of sale; and in the present case their conduct makes it
clear that all that the parties
intended to do was to continue with
their written contract of sale.’
14
[21] It is not necessary to consider
whether
D S
Enterprises
was
correctly decided. The facts in the present matter are quite
different. Not only is it alleged that the parties by way of the
letters B1 and C1 ‘agreed in writing . . . to revive the lapsed
agreement of sale’ it is alleged that it was an express term
of the
revived agreement that clause 13.2 thereof be amended to the effect
that compliance therewith was to occur upon or before
transfer of the
property. The amendment is material as the time allowed in clause
13.2 for the fulfilment of the condition was inserted
in order to
create certainty as to the fate of the contract and affected both
parties. The contract which had lapsed because of the
non-fulfilment
of the condition had become, as a result of the amendment, subject to
a new material condition, the time for fulfilment
of which had not
been stipulated. It follows that the parties by agreeing to revive
the lapsed agreement with amendments, entered
into an agreement to
buy and sell on terms different from the terms previously agreed to.
Such an agreement has to comply with the
provisions of s 2(1) of the
Act. Even if the amendment had been agreed to prior to the lapsing of
the agreement of sale it would,
in order to be valid, have had to
comply with the provisions of s 2(1) of the Act.
15
It follows that in so far as the
appellants’ claim is based on the allegations contained in para 14
of the particulars of claim
no cause of action is disclosed.
[22] The fifth exception is on the
basis that the lapsing of the agreement of sale did not give rise to
a right capable of being waived
by the first respondent. The
condition contained in clause 13.2 was clearly a condition inserted
for the benefit of the purchaser.
When it was not fulfilled the
agreement lapsed. The lapsing of the agreement could not possibly
have given rise to a right on the
part of the seller which could
unilaterally be waived by the seller, thereby resurrecting the
agreement, without the condition which
had been inserted for the
benefit of the purchaser. It follows that in so far as the
appellants’ claim is based on the allegations
contained in para 15
of the particulars of claim, no cause of action is disclosed either.
[23] For these reasons the appeal is dismissed with
costs including the costs of two counsel.
__________________
P E STREICHER
JUDGE OF APPEAL
CONCUR
:
MTHIYANE JA)
PONNAN JA)
HURT AJA)
KGOMO AJA)
1
See
Theunissen and Others v Transvaalse
Lewendehawe Koop Bpk
1988 (2) SA 486
(A) at 500E;
Amalgamated Footwear &
Leather Industries v Jordan & Co Ltd
1948
(2) 891 (C) at 893;
Callender-Easby and
Another v Grahamstown Municipality and Others
1981
(2) SA 810
(E) at 813A;
Klerck NO v Van
Zyl and Maritz NNO and Another and Related Cases
1989
(4) SA 263
(SE) at 288D-G; and
South
African National Parks v Ras
2002 (2)
SA 537
(C) at 542B-E.
2
1967
(4) SA 459
(A).
3
1972
(4) SA 22
(W).
4
At
464G.
5
At
46D-G.
6
At
466B.
7
At
466C-467C.
8
At
467D.
9
At
467D-G.
10
At
467G-H.
11
At
467H-468B.
12
At
468C.
13
At
26F-H.
14
At
28E.
15
See
Neethling v Klopper at 464G.