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[2018] ZAGPPHC 656
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Boshoga and Another v Mmakolo and Others (82446/2016) [2018] ZAGPPHC 656 (7 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 82446/2016
In
the matter between:
LEHUMO
BENJAMIN BOSHOGA
FIRST APPLICANT
SONTO
JOHANNA
BOSHOGA
SECOND APPLICANT
And
TJ
MMAKOLO
FIRST RESPONDENT
UNLAWFUL
OCCUPIERS PORTION [….],
GAUTENG
PROVINCE
SECOND RESPONDENT
CITY
OF TSHWANE METROPOLITAN CITY
THIRD RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
The applicants, who are the registered owners of certain immovable
property, seek
an eviction order against the first and second
respondents and a punitive costs order against the first respondent.
The first respondent
resists the application on the basis that he has
a lien for improvements he made to the property, which was a vacant
stand when
he occupied it.
[2]
At the commencement of the hearing
before me applicants' counsel pointed out what was said in the
replying affidavit - that not
only did the first respondent deliver
his notice to oppose late but also delivered his answering affidavit
27 days after the application
was served on him the second time. In
fact, says first applicant, the notice to oppose and the answering
affidavit were delivered
late simultaneously. In the replying
affidavit the applicant objects to the late delivery of the answering
affidavit, more so because
no application for condonation has been
made by the first respondent. In spite of being alerted to this issue
the first respondent
also failed to deliver any heads of argument in
accordance with the practice directive of this court and failed to
provide any
satisfactory explanation for these failures. Rule 27(3)
of the Uniform Rules of Court provides: 'The court may, on good cause
shown,
condone any non compliance with these rules.' The
respondent has not applied for condonation at all.
[3]
A further issue needs to be mentioned.
At the commencement of the hearing first respondent's counsel wanted
to hand up a 'supplementary
affidavit' from the bar. Applicant's
counsel objected again on the grounds that there was no explanation
by the first respondent
about why any new facts contained in the
supplementary affidavit were not dealt with in the answering
affidavit and, no application
was before the court for permission to
file a further affidavit. It bears noting that the supplementary
affidavit was served on
the applicants' attorneys on 20 October 2017
but was not filed at court, hence not 'delivered' within the meaning
of the Rules,
nor was it accompanied by an application to permit the
filing of a further affidavit.
[4]
However, as the applicants wished to
reach finality on the matter counsel for the applicant was prepared
to have the matter proceed
on the papers, including the answering and
supplementary affidavits. I ruled accordingly but the flagrant
disregard of the rules
and the practice directive by the first
respondent must be deprecated and the court will show its displeasure
by making an appropriate
costs order as also the submissions
regarding these two issues took up some time before the matter could
be heard on the merits.
[5]
It was agreed between the parties that
the application may be decided on the papers without referral to oral
evidence on any disputed
facts.
Background
facts
[6]
The first applicant says he and the
second respondent are married to each other in community of property
and are "co-owners"
(I presume he means 'joint owners') of
Portion 3 of [….], Pretoria (the property). The first
applicant purchased the property
when it was still a vacant stand
from the third respondent on 19 January 1999 in terms of a written
deed of sale. The property
was eventually transferred to the
applicants on 29 May 2009, i.e. more than ten years later. The delay
appears to have been caused
primarily by the third respondent.
[7]
The applicants aver that the first
respondent occupied the property without their consent,. built rooms
on it and rented them o
t to the second respondents, thereby deriving
an income from the letting of the rooms. The first respondent admits
it and
say
she
also commenced building a house for himself and his family on the
property.
[8]
The applicants aver further that the
first and second respondents are in unlawful occupation of the
property within the meaning
d fined in the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE
Act). On 17 January
2017 the applicants obtained an order from this
court authorising a notice in terms of
s
4(2)
of the PIE Act which called
upon first and second respondents to show cause on 17 February 2017
why an order for their eviction
should not be granted. The second
respondents have not opposed it. The third respondent was cited as
the local authority responsible
for providing alternative
accommodation to the second respondents in the event that the
eviction order is granted. It has not entered
an appearance to oppose
the relief sought by the applicants.
[9]
The first applicant says in early 2ooe
he was walking past the property when he noticed some people erecting
a fence and digging
foundations on the property. He was informed by
them that they were working for the 'owner' of the property a Mr
Mmakola. He knew
Mmakola as they both lived in Mamelodi. It is not in
dispute that the Mr Mmakola referred to is the first respondent. The
first
applicant complained to a Mr Frank Nemakwarami, Acting General
Manage:r Legal Services, of the third respondent on 2 March 2006
by
email. Mr Nemakwarami undertook to take up the matter with the first
respondent. A few days later, says first respondent, he
received a
call from a Mr Molekwa of attorneys Rorich Wolmaransand Luderitz who
said he was acting for the first respondent and
wanted to know if he
would be interested in selling the property to the first respondent.
He told Mr Molekwa he was not. Mr Molekwa
then proposed that he
should compensate the first respondent for the fence he erected on
the property. First applicant refused
as his stance was that the
first respondent had erected it without his permission so he (first
respondent) could either remove
it or donate it (presumably to first
applicant himself).
[10]
First applicant says a day or two thereafter, the first respondent
came to see him and offered
to buy the property. The first applicant
again refused the offer. He
says
first respondent then
asked
him to pay for the fence and he refused, repeating that he could
either remove or donate it. In the meantime Mr Nemakwarami informed
the first applicant that he had met with the first respondent and his
attorney and informed them that the property had been sold
to the
applicants in January 1999 and told them to remove the fence. The
first respondent agreed to do so. Mr Nemakwarami said
it was he who
provided the first respondent and his attorney with the first
applicant's phone number.
[11]
On 14 March 2006 Nemakwarami wrote to
first respondent appealing to him to remove the fence and to stop the
illegal construction
on the property. Nemakwarami emailed a copy of
the letter to the first applicant and a copy is attached to the
founding affidavit
as 'LBB5'. The first respondent continued with the
illegal construction.
[12]
First applicant says he again approached
Nemakwarami who referred him to the third respondent's Informal
Settlement, Land Division
Management and Community Liaison to whom
Nemakwarami had written a memorandum dated 25 April 2006 and
requested it to assist in
'honouring the deed of sale and to enforce
the right of an owner of the property to have fee
(sic)
ownership without any sort of
invasion.' A Mr Fenyane of the aforementioned department informed
first applicant that he should institute
eviction proceedings against
the first respondent as he refused to cooperate.
[13]
First applicant says he then sought
legal advice from attorney Mphahlele, who advised him that they could
not institute eviction
proceedings as the applicants were not as yet
the registered owners of the property even though they had purchased
it. Upon enquiry,
his attorney was informed by third respondent's
attorneys that the registration papers for the transfer of the
property into the
applicants' names had been lodged at the Deeds
Office on 30 August 2006.
[14]
In the meantime, Mr Nemakwarami informed
applicants' attorneys that the reason why third respondent's Building
Control Department
could not take action against first respondent was
because the property had not yet been registered into applicants'
names. First
applicant decided to wait until the registration took
place. It eventually took place three years later on 29 May 2009.
[15]
The first applicant thereafter navigated
between three firms of attorneys from then on to pursue the eviction
matter. On 4th June
2013 he received a letter from Danie Kolver
attorneys who made the same proposal that was previously made by the
first respondent
himself and Mr Molekwa of Rorich Wolmarans &
Luderitz; i.e. that he sell the property to the first respondent. In
the letter
it is further stated that the first respondent only
learned ten months after he erected the fence and building on the
property
that he (first respondent) was not the owner of the
property. It was also further alleged that the first respondent was
paying
rates and taxes on\ the property. First applicant found this
strange as he was himself paying rates\and taxes on the property
since
it was registered into his and his wife's names
[16]
First applicant's then attorney, Mr
Lephoko replied to Attorney Kolver and informed him that the
applicants were not prepared to
sell the property to the first
respondent. Notwithstanding that, Kolver attorneys wrote four further
letters requesting the applicants
to sell the property to the first
respondent. Mr Lephoko gave the same responses as before.
[17]
The applicants then launched the present
eviction application through their current attorneys of record.
[18]
The first respondent deposed to an
answering affidavit. He says he is in control of the property as
'landlord to 11 lawful lessees/tenants
of rooms on the property'.
They are the second respondents.
[19]
First respondent approached the third respondent in 1998 with a view
to purchasing an erf in
Moretele View. During 2005, having noticed
that Erf 128 had been sub divided, he applied on 9 March 2005 to
purchase portion 3
of the erf. He reapplied on 7th May 2005. (He does
not explain why he reapplied in two months' time.) He received a
letter dated
18 May 2005 from the third respondent informing him that
the property will be sold by way of public tender. I shall assume
that
the third respondent made an error as it is common cause that it
had already been sold on 19 January 1999 to the first applicant.
[20]
First respondent says that 'in the firm
belief that any tender by myself would be accepted, I then put up a
fence on the street
side and also put a Zozo wooden moveable hut on
the property in which I slept.' Why he had this firm belief and
proceeded to occupy
the property is not explained.
[21]
The first respondent goes on to say that
in 2006 he applied for water and electricity services to be provided
to the property by
third respondent but was supplied with a water
connection only. He then erected two rooms on the property. He again
applied for
electricity (he does not say when) and it was supplied by
third respondent. He then housed two employees in the two rooms free
of charge.
[22]
During 2008 and 2009 first respondent
had another nine rooms built on the property and rented them out to
tenants. In 2010 he completed
building a house on the property for
his family which, he says, was never occupied because he ran out of
cash. A copy of the third
respondent's Building Control department's
completion certificate is attached indicating approval of the
construction of the foundations,
the structure and the roof at
various stages. Oddly, it is dated 26 February 2010 but it is stated
that the inspections were done
thereafter i.e. July, August and
December 2010.
[23]
First respondent says he heard nothing
from the third respondent (he does not say what he was expecting to
hear about) until 2012
when the electricity supply to the property
was disconnected. He found a rates and taxes account affixed to the
front gate addressed
to the first applicant showing an arrear amount
of about R3 700.00. He says he paid R1 800.00 on 12 February 2012 on
the arrear
account after receiving advice from his then attorney, Mr
Molekwa, and the electricity was reconnected.
[24]
The first respondent continues that
'during 2013' he approached Attorney Danie Kolver 'to enquire about
this LB Boshoga.' Why he
did not do so in February, 2012 is not
stated. His attorney established through a Deeds Office search that
the applicants purchased
the property on 19 January 1999 and became
registered owners in 2009, which, he says, was about 1O months after
he paid the arrear
rates and taxes.
[25]
The first respondent
says
he was 'flabbergasted' that nobody
at any stage prevented him from erecting the improvements on the
property and the third respondents
had not informed him during his
dealings with it in 2005 and 2006 that the property had been sold to
the applicants.
[26]
The first respondent 'categorically'
states that at no stage prior to 2013 was he aware of the applicants'
ownership of the property.
He says he 'at all relevant times honestly
believed that third respondent would grant me the right to purchase
the property' because
it had supplied him with water and electricity.
He says he was also not informed by third respondent 'as owner' when
he was building
in 2005 and 2006 that he was not going to become
owner of the property or that he was erecting improvements without
the right to
do so. Clearly, the first respondent considers himself
to be the victim in this saga.
[27]
In July 2013 first respondent informed
the applicants through his attorney that if they persisted with their
demand that he vacate
the property, he would have an enrichment claim
against them.
In casu
the
first respondent resists the eviction claim on the basis that he has
a lien for the improvements effected by him on the property.
The
Law
[28]
A right of retention (ius retentiones)
or lien is the right to retain physical control of another's movable
or immovable property
as security for payment of a claim for money or
labour expended on that property. Liens arise by operation of law
[1]
.
There are two main kinds of lien, viz salvage and improvement liens
and debtor and creditor liens. The former are based on the
principle
of unjust enrichment and they are often referred to as 'enrichment
liens'
[2]
.
[29]
In this matter the respondent relies on
an improvement lien. An improvement lien affords security for the
recovery of useful expenses
[3]
.
The learned authors of Willa's
Principles
of South African Law
say -
'Recognition
of an improvement lien lies in the discretion of the judge based on
e.g. the financial position of the owner; whether
the owner intends
to 1,1se the property personally or intends selling it; whether the
improvement can be removed without damage
and, whether the owner
would himself have made the improvement: . . . .'
[4]
[30]
The following conditions must be present
for a lien to arise. First, a person must have expended money or
labour on property belonging
to another. Secondly, the retentor must
retain possession of the property. Thirdly, a lien extends only over
property or part thereof
on which money or labour has been expended
and does not cover other property of the debtor which happens to be
in possession of
the lienholder
[5]
.
[31]
Furthermore:
31.1
The
protection afforded by a lien is extremely limited: the retentor
merely has a defence against the rei vindicatio of the owner
[6]
.
31.2
The
owner of the property burdened by a lien may defeat the lien by
furnishing adequate security for payment of the debt secured
[7]
.
31.3
The
court will take all the circumstances into account in exercising its
discretion to order restoration of the property
[8]
.
31.4
A
lien holder does not have the right to commercially exploit the
object of the lien.
31.5
The
availability and extent of a claim for unjustified enrichment
depends, firstly, on how the law classifies the possessor or occupier
who made the improvements and, secondly, on the kind of improvements
(i.e. necessary, useful or luxurious) that was made
[9]
.
[32]
In Wille's
Principles
of South African
Law
[10]
reference is made to De Vos
Verrykingsaanspreeklikheid
245-7 who defines (for the purposes
of the law of enrichment) a bona fide possessor as someone who
possesses (either directly or
indirectly) property of which he
believes he is the owner; a mala fide possessor, on the other hand,
acts as if he were the owner,
while knowing that he is not. An
occupier is someone who does not have the animus domini but
nevertheless occupies the property
because it is in his interest to
do so. Occupiers are divided into lawful occupiers (i.e. those who
have the right to occupy the
property), bona fide occupiers (i.e.
those who believe themselves to be lawful occupiers, but are not) and
mala fide occupiers
(i.e.
those
who occupy property as if they are lawful occupiers, but know that
they are not).
[33]
The learned authors of
Wille's
Principles of South African Law
submit
that 'useful improvements' must be taken to mean improvements which
increase the market value of the property
[11]
.
Discussion
[34]
It is common cause that the applicants
are the registered owners of the property and that the first and
second respondents are occupying
it without the applicants' consent.
[35]
The first applicant says that on 25 May
2004, at his specific request, the third respondent's general manager
of water and sanitation
wrote an internal memorandum to its legal
services department and requested the latter to provide a water
connection to the property
at the cost of the buyer of the property.
First applicant
says
the
sewerage and water connections were made by third respondent and he
paid for them. This was in 2004. The respondent is therefore
being
untruthful when he says he paid for the water connection. (He does
not say anything about the sewer connection).
[36]
The first respondent denies that he is
in unlawful occupation of the property but fails to give any legal
basis on which he occupies
the property. He was erroneously told by
the third respondent in May 2005 that the property would be sold by
public tender when
in fact it had already been sold to the first
applicant in 1999. Instead of waiting for the tender process to take
place the respondent
decided to occupy the property, on his own
version, in the belief that he would become the owner. This belief is
totally unreasonable
as there was nothing to indicate that he would
be the successful bidder. However firm his belief, it did not entitle
him to erect
a fence and foundations and take occupation of the
property.
[37]
The first respondent denies that he at
any stage had any direct dealings with the first applicant as averred
by him. I reject his
version and accept that of the first applicant
that he had contacted the first applicant and offered to buy the
property which
offer was rejected by the latter.
[38]
The first respondent is also not being
truthful when he says he only learned in 2013 that the first
applicant was the owner of the
property. He alleges he consulted with
Mr Molekoa of Attorneys Rorich Wolmarans & Luderitz only in 2013.
However, already in
2005 in a letter dated 21 September, Mr Molekoa
wrote to the third respondent to enquire when and to whom the
property was sold,
at what price and how it was sold. He states in
the letter that his client is T.M Mmakola. The initial 'T' is in all
probability
a typing error because even on 14 March 2006 the third
respondent wrote to the first respondent confirming a meeting between
'your
attorney Mr Molekoa of Rorich, Wolmarans & L:uderitz was
present, yourself and Mr Nemakwarami of this office was
(sic)
present.' Significantly, it is
stated further in the letter -
'You will recall that it was
indicated to you that Portion [….] View has been sold to Mr
Benjamin Boshoga by the Municipality
on 19 January 1999.'
Clearly, the first respondent was
aware at least in 2005 or at the latest, in 2006 that the first
applicant was the own r of the
property.
[39]
In the same letter it is stated further
'In the meeting you also agree
(sic)
that you will remove the fence that you have illegally
erected on the property.
It
has now come to our attention that you have not yet removed the
fence. Please remove the fence within 21 days of the receipt
of this
letter, failure thereto the Municipality will remove the fence.
Mr
Benjamin Boshoga also complain (sic) that there is an illegal
construction taking place in his property and it is believed by
him
that you are the one responsible for such an activity.
We
appeal to you that if you are responsible for the foundation digging
on the property, please rectify the situation, or
we will
have
no choice but to instruct our Land Invasion Department to take action
against you.'
[40]
At the latest by March 2006, the first
respondent was told in no uncertain terms that his construction
activities were illegal and
that he was to desist from continuing to
do so. The first respondent could therefore never have been under the
impression that
he was the owner of the property as he knew that the
applicants were the owners in March 2006 already.
[41]
It is noteworthy that the municipal
account reflecting the arrear rates that the first respondent has
attached to his answering
affidavit is in the name of the first
applicant. The first respondent could therefore have been under no
illusion that the first
applicant was the owner of the property as
rates on a property are levied against the owner. (The Deed of Sale
between the third
respondent and the first applicant. The second
applicant became joint owner by virtue of the marriage in community
of property.)
The
Lien
[42]
The first respondent admits that the
applicants are the registered owners of the property and that he is
in unlawful possession
thereof. He refuses to hand over the property
to the applicants and resists the eviction application on the basis
that he has a
lien on the property because of the improvements he has
effected on what was a vacant stand.
[43]
The first respondent in my view is a
mala fide possessor of the property as he acquired possession of the
property in an unlawful
manner. However, as is pointed out by Daniel
Visser;
Unjustified Enrichment,
2008,
608-609:
'The position regarding the rights
of mala fide possessors who have improved the property that they
possessed remains uncertain.
Many pronouncements of the courts and
academic commentators are to the effect that a mala fide possessor
should be, and probably
is, in exactly the same position as a bona
fide possessor when it comes to claims for compensation for
improvements in respect
of the property that they possessed. Some
sources indicate, however, that a distinction should be made between
necessary and useful
improvements.'
[44]
In his answering affidavit the first
respondent refers to himself as 'either as bona fide or mala fide
occupier
of
the property,' and therefore he has an unjust enrichment claim
against the owner for 'necessary and useful improvements as well
as
luxurious improvements if the latter is accepted by the owner.' He
says he has a right of legal retention of the property until
he gets
paid before he can be evicted from the property.
[45]
The first respondent has failed to set
out ·the details regarding the 'necessary and useful
improvements.' He therefore sought
to do so in the supplementary
affidavit to which he attached a valuation report from UniqueCo
Property Valuers who valued the property
(including the improvements
made by the first respondent) at R1 100 000.00 of which the land
value was stated to be R230 000.00
as at November 2016.
[46]
First respondent says R1 100 000.00 less
the land value of R230 000.00 reflects the improvements he made to
the property in the
amount of R870 000.00.
[47]
Insofar as proof of actual expenses
incurred for the useful improvements is concerned the first
respondent says it is 'somewhat
more difficult to deal with as I lost
the invoices and slips of material I purchased and further by reason
thereof that the labour
and material was purchased cash by myself.'
[48]
However, says first respondent, he made
notes in his own handwriting of the 'labour and expenses' he incurred
and attached three
pages of the notes to the supplementary affidavit.
The total of these expenses is reflected as R997 978.14. These are
the only
notes he has and is the best evidence he is able to provide
in respect of the useful improvements. He also incurred building
plans
and registration expenses totalling RS 782.25. He says he has
received rental income of R249 904.04 from the property which he
agrees must be deducted from the useful expenses amount. The value of
the lien therefore is the lesser of the following two calculations:
(a)
The
market value as calculated above, i.e. R870 000.00 less the rental
income of R249 904.04 leaves a figure of R620 095.96; or
(b)
The
actual useful expenses of R997 98.14 plus the building plans expenses
of R5 782.25 less rental income of R249 904.04 which leaves
a net
figure of R753 856.35.
The lesser of the two amounts is
thus R620 095.96 which represents the value of his lien over the
property he says.
[49] The
difficulty I have with the calculations is that the useful expenses
allegedly made are not
supported by any invoices or receipts or other
documentary evidence. All that the first respondent has are his own
notes merely
reflecting totals of numerous items purchased from
various suppliers. He does not even have any receipts to show the
amounts he
paid for labour expended on the structures put up on the
property. In other words there is insufficient evidence about the
amount
for which the lien is to serve as security. This finding does
not preclude a later successful claim by the first respondent where
acceptable evidence regarding the alleged useful expenses incurred by
him is presented.
[50]
Having said that, I have a more
fundamental difficulty with the first respondent's assertion that he
incurred necessary or useful
expenses in view of the fact that the
property was a vacant stand when he unlawfully took possession of it.
Far from the expenses
being necessary or useful they were incurred by
him to earn an income. A court cannot countenance such unlawful
conduct. Indeed,
in my view, in these circumstances the first
respondent cannot rely on an alleged lien to prevent being evicted
from the property.
[51]
In
Weilback
en ·n Ander v Grobler
1982(2)
SA 15 OPA Flemming J discussed the various instances in which a claim
for compensation arises and then said (I quote from
the English
translation of the headnote) -
'(5)
It appears as if it must now be accepted, as most modern writers
suggest, that
a
ma/a fide
occupier can also have a claim for
compensation for useful improvements {except perhaps if he came into
occupation in an unlawful
manner). The
mala fide
possessor
could still have a belief in the regularity of the effecting of the
improvement, if e.g., he is busy and intends acquiring
ownership by
prescription, .
but the person who takes possession surreptitiously
will realise that he ought not to effect the improvement.'
(My
underlining.)
[52]
Should this be a case where the
applicants should furnish security for the claimed lien pending any
enrichment claim that the first
respondent may institute? I do not
think so. As I said, the first respondent clearly knew shortly after
he erected a fence and
commenced digging for foundations to be laid
on the property that the first applicant was the owner of the stand.
He nevertheless
continued to build on it. The applicants are now
faced with improvements on the stand that they had not agreed to. The
first respondent
acted in an unlawful manner and even in these
proceedings has been untruthful to the court. He may, if he is so
advised, have an
action for unjust enrichment but he cannot retain
possession of the property on the basis of a lien.
[53]
The first respondent does not live
on
the property. He derives an income
from letting out rooms on the property. In these circumstances I see
no reason why the order
for the eviction of the respondents should
not be granted.
[54]
The applicants seek a punitive costs order on the attorney and client
scale. In my view such
an order is justified given the conduct of the
first respondent both towards the applicants and towards this court.
[55]
An order is granted in terms of the
notice of motion as follows:
1.
That
the first and second respondents and any person occupying through
them the property known as Portion [….], Province
of Gauteng,
are evicted from the said property.
2.
That
the first and second respondents and any person occupying through
them the property known as Portion [….], Province
of Gauteng,
are ordered to vacate the said property within thirty (30) days of
this order.
3.
That
In the event that the first and second respondents fail or refuse to
vacate the property within thirty (30) days of date of
this order,
the Sheriff of this court or his/her deputy with the assistance of
the members of the South African Police Services
are authorised and
ordered to evict the first and second respondents and any person
occupying the property through them.
4.
That
the first respondent is ordered to hand over the property known as
Portion [….] Province of Gauteng to the applicants
within
thirty (30) days of this order.
5.
That
the first respondent is ordered to pay the costs of this application
on the scale of attorney and client, including the costs
of the
ex
parle
application made on 17 January
2017.
N.
RANCHOD
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Adv. R.B Mphela
Instructed
by
: Tsebane Molaba Inc.
Attorneys
Counsel on behalf of First Respondent: Att. S.J.R Vorster
Instructed
by
; Danie Kolver Attorneys
Date
heard
: 24 October 2017
Date
delivered
; 7 March 2018
[1]
Wille's Principles of South African Law, 9
th
Edition 661
(Footnotes omitted).
[2]
Ibid p662.
[3]
Ibid p662.
[4]
Footnote89 at p662 and the cases cited there.
[5]
Ibid p664 (Footnotes omitted).
[6]
Ibid p664 (Footnotes omitted).
[7]
Ibid p665 (Footnotes omitted).
[8]
Ibid p665 (Footnotes omitted).
[9]
Ibid pp1074-5 (Footnotes omitted).
[10]
Ibid pl075, footnote 153.
[11]
Ibid p1075, footnote 155 and the cases cited there.