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[2019] ZAWCHC 189
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Homechoice v Lewis Stores (Pty) Limited (17166/2018) [2019] ZAWCHC 189; 2022 BIP 506 (WCC) (25 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 17166/2018
In
the matter between:
HOMECHOICE
Applicant (in the main application)/
Respondent in this application
And
LEWIS
STORES (PTY)
LIMITED
Respondent (in the main application)
/
Applicant in
this
application
JUDGMENT
DELIVERED ON 25 MARCH 2019
BAARTMAN,
J
[1]
The applicant seeks the striking out of
certain affidavits and copyright agreements, in terms of Rules 30 and
30A, filed in support
of the respondent's application for an
interdict
(the interdict application)
against it. In addition, the applicant
seeks, in terms
of
Rule 35(13) and
(14),
to
compel
the
respondent
to
produce
for
inspection
and copying documents
referred to in the interdict application or
which
are
required for purposes of responding to allegations contained therein.
The applicant has not filed its answering papers in the
interdict
application.
[2]
On 14 September 2018, the respondent
launched the interdict application which concerns unlawful
competition, passing off and copyright
infringement in respect of 7
specified works. The respondent alleged, in the interdict application
that it had been established
in 1985 and commenced as a mail order
retailer selling homeware products to mass market consumers on
credit. It claims to be the
largest home shopping retailer in South
Africa. Currently, the respondent supplies homeware and financial
services to an increasing
middle class via mail order catalogues,
online platforms, call centres, sales agents and retail showrooms.
[3]
The applicant is alleged to have unlawfully
cloned the respondent's core business through its 'Inspire business'
and 'off the fruits
of the respondent's labour' secured entry into
the market as follows:
'5.
1 imitating
[respondent's] bedding and other designs;
5.2
imitating the design and layout of
the [respondent's] catalogue;
5.3
imitating the way in which the
[respondent] bundles its bedding products;
5.4
imitating [respondent's] use of and
naming conventions for tiers in relation to the bedding bundles being
offered;
5.5
attempting to obtain confidential
information of [the respondent], such as supplier details, from
previous employees of the [the
respondent]; and
5.6
airing television commercials similar to
those aired by [the respondent]
6.
In the process [the
applicant] has also infringed the copyright which [the respondent]
owns in the designs of its bedding.
'
The Rule 30 and 30A
application
[4]
This
application is directed at the respondent's claim that it holds
copyright in the designs relevant to the interdict application.
In
support
of that case, the respondent has put up the affidavits of the
international designers from whom it allegedly acquired the
copyright. The applicant complains that those affidavits and the
copyright agreements, I deal with each below, have not been properly
authenticated for use in a South African court. Therefore, the
application to have the affidavits and agreements struck out, as
it
represents, so the submission went, an irregular step. In compliance
with Rule 30A
[1]
,
the
applicant has afforded the respondent 10 days to remove the causes of
its complaint.
[5]
The respondent maintains that this
application is none other than a delaying tactic devoid of merit and
that any complaint should
be addressed
as
a point
in
limine
in
the applicant's
answering
affidavit. In addition, the respondent took
the view that it would be for the court hearing the interdict
application to determine
whether the affidavits comply with the Rule
and that court may in terms of Rule 63(4) allow the affidavits.
[6]
Rule 30 of the Uniform Rules of Court
provides:
'30 Irregular
proceedings
(1)
A party to
a
cause in which an irregular step has
been taken by any other party may apply to court to set it aside.
(2)
An application in terms of subrule
(1) shall be on notice to all parties specifying particulars of the
irregularity or impropriety
alleged, and may be made only if
-
...
(3)
If at the hearing of such
application the court is of opinion that the proceeding or step is
irregular or improper, it may set it
aside in whole or in part,
either as against all the parties or
as
against some of them, and grant leave to
amend or make any such order
as
to
it seems meet.
(4)
Until
a
party has complied with any order of
court made against him in terms of this rule, he shall not take any
further step in the cause,
save to apply for an extension of time
within which to comply with such order.'
[7]
It is in issue whether the respondent took
a step when it filed the affidavits and agreements that form the
subject of this application.
The respondent alleges that the step was
the filing of the notice of motion in the interdict application and
that the filing of
affidavits and annexures to the founding affidavit
is not a step as envisaged by the Rule. The submission continued that
the Rule
is directed at procedural irregularities and not substantive
deficiencies in evidence. The respondent submits that the
deficiencies
complained of were substantive deficiencies in evidence
and could not be addressed through this application.
[8]
Complaints
directed at the lack of authentication are a procedural matter.
It
is settled law that the rules relating to authentication are
not
mandatory in the sense that only strict compliance will suffice
[2]
.
Rule 63 prescribes the way documents executed outside the
Republic
should
be verified to be used within the Republic.
The
Rules are for the court; therefore, a court has discretion
[3]
to condone non-compliance if there is other evidence indicating that
the document is what it purports to be.
[9]
The applicant alleged that the affidavits
of Akira Mineed
(Mineed),
Sanip
Prajapati
(Prajapati),
Geoffrey
Haley
(Haley)
and
David Zhang
(Zhang),
purportedly
signed and commissioned in Japan, India, England and China
respectively, did not comply with the Rules and should be
struck out.
[10]
The applicant further complained that 'copyright assignment
agreements' annexed to the founding
papers were not verified or
authenticated as prescribed by the Uniform Rule of Court 63. The
impugned documents are fundamental
to the respondent's copyright
claim which could fall away in its entirety if the challenge
succeeds. It follows that the applicant
will be prejudiced if
required to deal with affidavits and copyright agreements which on
the face of it are not compliant and cannot
be used in evidence in a
South African court.
I deal with the impugned
documents below.
The affidavits are
allegedly non-compliant
[11]
The applicant alleged that there has been
no explanation from the respondent as to why the applicant should
accept that the
'Documents
were in fact signed
by the persons
in
question
and duly
commissioned
by
persons
with
the
requisite
authority
to
act
as
commissioners of oaths.'
[12]
The respondent submitted:
'I, deny
42.2
...
that any of the relevant signatures
inauthentic
-
in other words, based on my interactions
concerning the signatures in question, I am satisfied that the person
who purports to have
signed each of the relevant documents actually
did
so; ...
44.1
that the founding papers [interdict
application] violate Rule 63;
44.2
that any of the relevant signatures
are inauthentic; and
44.3
do not admit [applicant's]
interpretation of the relevant documents.'
[13]
The deponent to the respondent's answering
affidavit
(Brandani)
has
unfortunately not indicated what her
'interactions
concerning the disputed signature'
were.
I am therefore unable to determine whether that would be sufficient
to supplement any non-compliance with the Rules to the
extent that
the alleged deficiencies do exist.
[14]
I
deal
with
the
criticism
levelled
against
each
affidavit
in
turn.
Mineeda's affidavit was alleged to be lacking in that:
'26.1
The affidavit of Mineeda was supposedly commissioned
by
a
person who is indicated by
a
simple stamp to be
a
notary in Koyoto, Japan.'
[15]
At
the
bottom
of
the
affidavit,
above
Mineeda's
typed
name,
the following appears:
'I certify that the
above signature is the true signature of Akira Mineeda and that he
confirmed to me,
1.
That he knows and understands the
content of the affidavit;
2.
that he considers the contents to be
true and correct;
3.
that he considers it to be binding
on his conscience.
The deponent then
raised his hand and uttered the words "I confirm that the
contents of the affidavit are true" in my
presence at Kyoto
Japan on this 29
th
day August 2018.
Kazuo
Amano and his designation
as
Notary
Public followed by
a
rubber
stand repeating his name followed by Kyoto District, Legal Affairs
Bureau, Notary, Kyoto Japan.'
[16]
Although provision was made for the
business address, it was left open and the rubber stamp used does not
provide the address or
any contact details. The commissioning is
wanting.
[17]
The applicant alleged that Prajapati's
affidavit was non-compliant in that it:
'26.2
...was supposedly commissioned by a person indicated by the stamp to
be
a
notary
in Gujarat, India;'
[18]
At the bottom of the affidavit, below
Prajapati's signature and his typed full names, the following
appears;
'I certify that the
above signature is the true signature of Sandip Prajapati and that he
acknowledged to me,
1.
That he knows and understands the
content of the affidavit;
2.
that he considers the contents to be
true and correct; and
3.
that he did not wish to take the
prescribed oath.
The deponent then
uttered the words "I truly affirm that the contents of this
affidavit are true", in my presence at Kamerej-Surat
on this 18
August 2018.
Dhiraj
L. Patel, Advocate
-
Notary, Diwa Ami, Maninagar, Surat Road,
Kamrej Char Rasta, Dist:Surat- 394 18S. (apparently
a
rubber stamp).
Next to it designation Notary Public
hand written under that Notarised for Sandip Prajapati, a signature
follows by the rubber stamp
details, Dhiraj L. Patel, Notary, Surat
District, State of Gujarat,
Reg No. 5498118, date
18 Aug 2018, next to these details is a rubber stamp depicting Notary
Govt of Gujurat (India) Dhirajbai L
Patel (India) Reg No 357/2002
Handwritten
underneath:
X witness, Sarni Bhai
Sammurh Bhei. Panchal,At. Van,TA. ,Dist Surat, M 982 54 34924, Sarni
Panchard.
Next
to a rubber stamp indicating- My Commission Expires on 25 -6- 2022,
Dhiraj L. Patel, Advocate
-
Notary.
The effort is ended
with an official seal (red) depicting Notary Govt of Gujurat (India)
Dhirajbai L Patel (India) Reg No 357/2002.'
[19]
There is sufficient detail to conclude, on
a preponderance of probability, that Mr Patel, an advocate in India,
is a commissioner
of oaths and that the affidavit was actually signed
as purported. The objection to this affidavit has no merit.
[20]
The applicant complained that Haley's
affidavit was non-compliant in that it:
'26.3
...was supposedly commissioned
by someone who has indicated via a handwritten insertion that he is a
solicitor in Huddersfield,
West Yorkshire, England.'
[21]
There
has been no attempt to bring Haley's affidavit within the prescribed
form
[4]
.
In
the absence of any other evidence, this affidavit does not pass
muster. I intend to give the respondent a further opportunity
to
rectify the shortcoming.
[22]
The complaint against Zhang's affidavit was
that:
'26.4.
..
.[it]
was supposedly commissioned by someone who merely indicted that he or
she is in "sales", and who professes thereby
to be
a
commissioner of oaths; and
26.
5.
the signatures on the contracts in
question were not authenticated at all.
'
[23]
Incredible as it may seem, the commissioner
professes to be one by virtue of being in sales. As indicated above,
Brandani alleges
to have information that could assist in determining
whether the disputed signatures are what they purport to be, but she
has not
disclosed that information. The submission that Zhang's
affidavit is compliant is without merit.
[24]
The applicant's further complaint about
Zhang's affidavit is:
'28.
..
.[the]
affidavit was clearly written by an English first language speaker,
and parts of that affidavit, at least, may not be readily
understood
by someone such as Zhang who,
as
his
affidavit
indicates,
has seemly always been resident in China and has thus conversed
throughout this life in
a
different
language with
a
different
alphabet. It is accordingly unclear how much of his affidavit Zhang
would have understood ..
.'
[25]
South Africans, with our multilingual
background, should have no difficulty
in
accepting
that
a
Chinese
national,
who
is
a
product manager for a company that
specialises in surface designs and is a manufacturer and exporter
that works closely with its
associated company in the USA, is
conversant in English. In addition, Brandani interacted
with Zhang in English and is able to
confirm
that
Zhang has a command of the language. There is no merit in this ground
of complaint.
[26]
It follows that the applicant should
succeed in respect of the above affidavits excepting that of
Prajapati.
The copyright assignment
agreements
[27]
Copyright
agreements must be in writing in terms of
South African law. The respondent relies on copyright agreements for
its copyright infringement
case. The agreements in issue are
annexures HC30- 33(pp426-448) and SC 3(pp 1058-1060) to the founding
papers. It follows that
those agreements are essential; the applicant
therefore sought to have the agreements verified or authenticated
before dealing
with them in its answering papers. The respondent's
attitude is that the applicant
should
raise
its objection
in
the
answering
papers and that it will respond in reply is not a bar to these
proceedings. The applicant, however, is entitled to know
what case it
is required to meet before filing its answering affidavit; as
indicated above,
without
the agreements,
the applicant does not have to meet a
copyright case. The prejudice is self-evident.
[28]
The
first
agreement
in
issue
purports
to
have
been
entered
into
on
6 August 2018 and was signed in the USA by Susan Wang, duly
authorised representative of the assignor. On the same day, it was
signed by a duly authorised agent of the assignee. In a similar vein,
the copyright assignment agreement entered into on 7 August
2018 was
signed in Cape Town and France. The deponent to the respondent's
founding papers, in the interdict application, said the
following
about the agreements:
'219.
Joy (geometric)-
The
[respondent] purchased the Work for this design
...
a
design
company in China. The artist who created the Work were employees of
SCM and its associate company E&E
Co.
respectively (I refer to the affidavit
of David Zhang in this regard)
..
.Accordingly the
copyright vested in E&E and SCM.
...
which, in turn,
assigned the copyright in the Work to applicant. Copies of both these
assignments are HC30 and HC31 respectively.'
[29]
The respondent alleged that it had:
'219.3
..
.purchased
[HC32] from Tempo Studio Design,
a
design studio in France.
..
.an
independent contractor of Tempo
..
.assigned
the copyright in these Works to Tempo. Tempo, in turn, assigned it to
the [respondent].
..
219.4
... purchased [HC33] ..
.from Elka Studio,
a
design based in France. Elka assigned
the copyright to the [respondent].'
[30]
As
indicated above, Zhang's affidavit does not comply with the Rules for
purposes of use in South Africa; similarly, the agreements
do not
comply with the Rules referred to above. Although, there is no
substantive enactment which lays down that a document executed
in a
foreign country must be authenticated, there is a long-standing
practice of requiring such authentication
[5]
.
In
our constitutional dispensation, the practice serves to protect the
rights of litigants to a fair hearing and prevents litigants
from
having to engage in spurious applications with no legal basis. As
indicated above, the entire copyright case depends on the
agreements;
if struck out/corrected at this early stage, it could curtail
litigation.
[31]
The copyright agreement signed on 3 August
2018, SC3, in Paris suffers from a similar defect in that it was not
authenticated. The
respondent's response to the complaint was as
follows:
'42.1
I, deny that the founding papers violate Uniform Rule 63 in any way-
42.2.
deny that any of the relevant signatures are inauthentic- in other
words, based on my interaction concerning the signatures
in question,
I am satisfied that the person who purports to have signed each of
the relevant documents actually did
so;
42.4.
deny that [the applicant]
has
had
no option other than' to bring the Rule-30 application
-
it
was
entitled to withdraw its Rule-30 notice
and tender any wasted costs. In addition, it should and could have
followed the Rules by
raising
a
point
in limine in its answering affidavit and pleading over.
43.
...
The main application is not, however,
restricted only to copyright. It
is
far
broader, and involves unlawful competition and passing off. Even if
the impugned documents and related allegations were struck
out of the
founding papers, [the respondent's] unlawful competition and
passing-off claims would still need to be addressed. This
is a
further
..
.that
the impugned part of the founding papers cannot be prejudicial to
[the applicant].'
[32]
The respondent seems to agree that if the
impugned documents are struck out, its copyright case will suffer a
fatal blow. It is
so that the applicant had other options instead of
this application, but that does not mean that this option was not
open to it.
The applicant is entitled to insist that the basic rules
of presenting a document be complied with. The respondent had the
opportunity
to remedy the obvious defects but instead chose not to.
The allegation by Brandani, the respondent's
attorney,
that
her
interaction
with
the
deponents satisfied
her
takes
the
matter
no
further
-
she
does
not
say
what
those interactions were.
[33]
It follows that the agreements stand to be
struck out and the respondent given an opportunity to rectify. This
is not a conclusion
arrived at lightly but in the circumstances of
this application -
where
the entire copyright infringement application will disappear - the
respondent's attitude is regrettable.
The Rule 35(12)/35(14)
Notice
[34]
The applicant requested the production for
inspection and copying of 25 documents it alleged were referred to in
the founding affidavit
to the interdict application. The respondent
has denied that the Rule finds application as these are motion
proceedings; however,
in an attempt to prevent delay, it provided 20
of the required documents. This application pertains to the remaining
5.
[35]
.
The
general rule is that discovery is not applicable to motion
proceedings unless specifically ordered by a court
[6]
The essential feature of discovery
is
that the person requiring discovery is in general only entitled to
discovery once the battle lines have been drawn and the legal
issues
established
[7]
.
It
is settled law that it is only in exceptional circumstances that the
Rules of discovery should be made to apply to application
proceedings. However, access to information held privately or by
government is necessary for the protection of rights and the fair
resolution of disputes in a court
[8]
.
Therefore,
I
am required to interpret
the
Rule under discussion
to
give effect to the spirit, purport and objects of the Bill of Rights.
[36]
An
applicant who proceeds by way of application does so at the risk of
the Plascon Evans rule operating against it
[9]
.
The
applicant has submitted that it needed the requested information to
answer the allegations in the founding affidavit. As indicated
above,
the founding papers run to 1 077 pages. I do not consider the mere
volume of the papers relevant in deciding whether exceptional
circumstances exist; instead, the complexity of the matter is a
factor.
[37]
The relief sought is also a relevant
consideration -
it
is final in effect and would, if granted, have far reaching
consequences for the applicant. The following relevant relief is
claimed:
'...
That the
Respondent be interdicted from infringing the copyright of the
applicant in the Works listed on A by
1.1
reproducing the Works;
1.2
making adaptations of the
Works;
1.3
producing the Infringing
Works listed in A;
1.4
marketing, selling, offering
for sale or distributing any item depicting the Works, the Infringing
Works or any other works substantially
similar to the Works;
1.5
producing, circulating and/or
using marketing materials depicting the Works, the Infringing Works
or any products depicting the
Works or the Infringing Works or
1.6
in any other manner.
2.
That the respondent be
ordered to remove from its website (s) and from all social media
platforms within its control all images
of the Infringing Works
and/or products depicting the Infringing Works.
3.
That the respondent be
ordered to deliver up to the applicant for destruction,
3.1
all copies of its catalogues and
other printed materials, depicting any of the Works or the Infringing
Works;
3.2
each item of its bedding and/or
textile products, and any other products, depicting any of the Works
or the Infringing Works.
4.
In the event that the
respondent refuses,
alternativelv
,
fails to deliver up for destruction all the items referred to in 3.1
and 3.2 above, within one month of this order being granted,
authorising the Sheriff of this Honourable Court or any other such
persons appointed by him, including the members of the South
African
Police Service, to attend at the premises of the respondent,
on the following day, to remove all
such items.
'
[38]
Annexure A specifically pertains to 'Works (as identified in the
founding affidavit)' and lists
7 works: Royal Garden, Christina,
Nicolette, Joy (geometric design), Joy (floral design), Whitney and
Tatum. A second category
identified as 'Infringing works (as
identified in the founding affidavit)' lists 7 works: Cecilia,
Bianca, Alyssa, Romeo, Robynne
& Ruby, Olivia and Tamara.
The requested documents
(39] Firstly, the
applicant seeks:
'Documents
constituting, or indicating, the purchases of 'between 20-30 artworks
each year from artists based in various locations
in Europe, the
United Kingdom and the USA; including the "purchase [of] the
copyright" in relation thereto,
as
referred in paragraph 71.'
[40]
The
discovery
sought
is
vague
and
bears
no
relation
to
the
relief
sought.
The
respondent
has
been
in
existence
for
3
decades,
therefore the request,
unqualified,
pertains to the entire period. The
respondent has correctly refused this request.
[41]
Secondly, the applicant sought:
'Invoices
or other documents evidencing the {respondent's] subscription to the
"various forecasting platforms such
as
WGSN",
as
well as the forecasts received from such
platforms during the last completed financial year (current forecasts
are not required)
as referred to in para 73.2.
'
[42]
The respondent refused the request as
follows:
'No
document is referred to in paragraphs 71, 73.1, 73.2 and 78.
7
of
the founding affidavit.'
[43]
The applicant has not indicated how this
information is necessary
for
it to meet the case in respect of the categories listed in annexure A
- the answer is not obvious. Therefore, it is important
to bear in
mind that the starting
point
to this
enquiry
is that discovery
is not applicable to motion proceedings. In
respect of this request, seen against the case the applicant has to
meet, exceptional
circumstances
cannot be said to exist.
[44]
Thirdly, the applicant seeks:
'Invoices
or other documentation evidencing the costs "of around
R2.
5
million
per annum" to attend international trade fairs, referred to in
[73.1J
of
the founding affidavit in the main application (initially requested
at [12] of the Rule 35(12)/(14) notice).'
[45]
The request is made pursuant to the
following
allegation:
'73.
The success of the applicant's business is dependant on its product
offering (including the uniqueness of the design applied
to its
bedding) and price. The applicant offers unique
designs tailored to its market. To achieve this the applicant:
73.1 regularly attends
international trade fairs in Europe, North America, South America and
Asia at a cost of around R2.5 million
per annum;'
[46]
The allegation of copyright infringement,
since mid-2017, pertains to 7 identified works.
In those circumstances, the request is
simply too wide. The applicant does not explain how travel expenses
spanning many
years
will
assist
it
in
meeting
the
case
in
respect
of
the 7 identified works it is said to have
infringed since 2017.
[47]
Fourthly, the applicant requested:
'The [respondent's]
approval of the final Whitney design on 12 April 2017 referred to in
[78.7] of the founding affidavit in the
main application ... '
[48]
In paragraph 78.7, the respondent alleged
that:
'78.
7
[The respondent] approved the final
design on 12 April 2017.'
[49]
Ms Robinson SC, the respondent's counsel,
submitted that this information is not relevant to 'whether [the
applicant] unlawfully
cloned [the respondent's] core business.' I
agree.
[50]
Fifthly, the applicant requested:
'Documentation which
indicates or confirm what is the "most successful product of
[the respondent]", as mentioned in para
[192] of the founding
affidavit in the main application.'
[51]
The respondent made the following
allegation in paragraphs 191 and 192:
'191.
The [applicant] entered the market in competition with the applicant.
It offers the
same
product to the
same
customer.
192.
The [applicant] set out to do
so
during
approximately September and October 2017, when it attempted to obtain
details of the [respondent's] suppliers and when it
bought
considerable quantities of the [respondent's] bedding products
as
samples to enable it to replicate the
applicant's designs, the combination of its product offering and the
composition thereof.
It
is,
accordingly, not surprising that the
first Inspire catalogue follows on the [respondent's] September 2017
brochure and that its
second brochure features, on the front page,
the most successful product of the [respondent].'
[52]
The applicant has not indicated how the
requested information will assist it in meeting the case that it
purchased and replicated
considerable quantities of the respondent's
bedding, and therefore its first brochure follows on the respondent's
September 2017
brochure. Similarly, the applicant has not indicated
how the information will assist it in answering the case that its
second brochure
features the applicant's product on the front page.
The gratuitous comment that it is also the respondent's most
successful product
does not take the cloning allegation any further.
CONCLUSION
[53]
I, for the reasons stated above, make the
following order:
(a)
The Rule 30 and 30A application succeeds.
The following documents in the founding papers of the applicant in
the main application
('HomeChoice') are struck out:
(i)
The affidavits of Akira Mineeds (main
record pp1034-1045), Geoffrey Haley (pp1061-1072) and David Zhang
(pp1073- 1077).
(ii)
The copyright assignment agreements at pp
426--448 (HC30 to HC33) and pp1058-1060 (SC2).
[54]
HomeChoice (the applicant in the main
application) is afforded an opportunity of delivering properly
authenticated affidavits and
agreements in place of the documents
that have been struck out within 30 days from the date of this order.
[55]
HomeChoice is directed to pay the costs of
this application, including the costs consequent upon the employment
of two counsel.
[56]
The application in terms of Rule 35(13),
read with Rule 35(14) is dismissed with costs, including the costs of
two counsel.
BAARTMAN
J
[1]
'30A
Non-compliance with rules
(1)
Where a party fails to comply with these
rules or with a request made or notice given pursuant thereto, any
other party may notify
the defaulting party that he or she intends,
after the lapse of 1O days, to apply for an order that such rule,
notice or request
be complied with or that the claim or defence be
struck out.
(2)
Failing compliance within 1O days, application may on notice be made
to the court
and the court may make such order thereon as to it
seems meet.'
[2]
Chopra
v Sparks Cimemas (Pty) Ltd and Another
1973
(2) SA 352(0)
at 358 B-E.
[3]
Rule
63(4) of the Uniform Rules of Court.
[4]
Rule
63(2)(e) and (4) of the Uniform Rules of Court.
[5]
Superior
Court Practice, Volume 2 at D1 - 744.
[6]
Premier
Freight (Pty) Ltd v Breathetex Corporation (Pty) Ltd
2003
(6) SA 190
(SE) at aras 4 and 5.
[7]
Superior
Court Practice, Volume 2 at D1 - 459.
[8]
Section
1(c) and 32 of the Constitution of the Republic of South Africa Act,
108 of 1996.
[9]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A).