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[2008] ZASCA 95
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Transnet Ltd. t/a Metrorail and Another v Witter (517/2007) [2008] ZASCA 95; 2008 (6) SA 549 (SCA) ; [2009] 1 All SA 164 (SCA) (16 September 2008)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 517/2007
TRANSNET
LIMITED t/a METRORAIL 1
st
Appellant
THE
SOUTH AFRICAN RAIL COMMUTER
CORPORATION
LIMITED 2
nd
Appellant
and
DAVID
WITTER Respondent
Neutral citation:
Transnet
Ltd v Witter
(517/2007)
[2008] ZASCA 95
(16
September 2008).
Coram:
HARMS
ADP, BRAND, CLOETE, PONNAN JJA and LEACH AJA
Heard:
15
AUGUST 2008
Delivered:
16
SEPTEMBER 2008
Corrected:
Summary: Delict
: negligence
of railway operator; passenger boarding moving train with open door.
Contributory negligence
: Apportionment of
Damages Act 34 of 1956; approach of a court of appeal to an
apportionment made by a trial court.
Costs:
Expert witnesses
: when preparation
(qualifying) fees of an expert, and allowances prescribed under s 42
Supreme Court Act 59 of 1959 (and s 51
bis
of the
Magistrates' Courts Act 32 of 1944
), should be allowed on
taxation; order declaring a witness a necessary witness, discussed.
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from: High Court, Cape Town (Veldhuizen J
sitting as court of first
instance).
The following order is made:
1. The order of the court a quo declaring Messrs Myatt
and Taute necessary witnesses is deleted and that part of the order
is amended
to read: 'The preparation fees of Messrs Myatt and Taute
shall be allowed on taxation'.
2. Save as set out in 1, the appeal is dismissed.
3. The appellants are ordered, jointly and severally, to
pay the respondent's costs of appeal, including the costs of two
counsel.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
CLOETE
JA (HARMS ADP, BRAND, PONNAN JJA and LEACH AJA concurring):
[1] At approximately 06:40 on 7 February 2002 the
plaintiff attempted to board a commuter train at the Witteboom
railway station
in the Western Cape. The train had just started to
move slowly when the plaintiff emerged onto the platform. Although
the other
doors were closed, the doors of the carriage where the
plaintiff attempted to board were open. The plaintiff took three
quick steps
across the platform and grasped the pillar in the middle
of the open doors, lost his footing and fell between the platform and
the train. The wheels of the train severed his right foot above the
ankle.
[2] Transnet Limited (trading as Metrorail) operated the
train, the railway station and the platform on behalf of the South
African
Rail Commuter Corporation Limited. The latter owned,
controlled and regulated the train. The plaintiff sued them both as,
respectively,
the first and second defendants, for damages in delict.
The court a quo (Veldhuizen J) was asked to determine the question of
liability
first. The learned judge found that the guard on the train
was negligent in failing to ensure that the doors of the carriage
where
the plaintiff attempted to board were closed before signalling
to the driver that the train could depart from the station, for which
negligence the defendants were vicariously liable; and in the
alternative, that the defendants were themselves negligent in failing
to put the necessary procedures in place to prevent this happening.
The trial court also found that the plaintiff had been negligent
─
indeed, contributory negligence had (correctly) been conceded ─
and ordered that his damages be reduced by 50 per
cent. Finally, the
trial court declared the two experts that had been called on behalf
of the plaintiff necessary witnesses and
ordered that their
qualifying fees should be allowed on taxation.
[3] This court granted the defendants leave to appeal.
It would be convenient to continue to refer to the parties as they
were in
the court a quo.
[4] There are three issues on appeal. The defendants
contend:
(a) that neither they nor the guard were negligent as
all reasonable steps had been taken to prevent the occurrence of
injuries
to persons in the position of the plaintiff;
(b) that the apportionment of damages made by the court
a quo was not just and equitable; and
(c) that the costs order in respect of the plaintiff's
expert witnesses should not have been made.
I shall deal with each issue in turn.
Negligence
[5] The test for negligence was formulated in
Kruger
v Coetzee
as follows
:
1
'For the purposes of liability
culpa
arises if ─
(a) a
diligens
paterfamilias
in the
position of the defendant─
would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing him patrimonial
loss; and
would take reasonable steps to
guard against such occurrence; and
(b) the defendant failed to take
such steps.'
The first two requirements contained in para (a) were ─
correctly ─ not placed in issue by the defendants. All of the
experts were agreed. Mr Myatt, an electrical engineer and specialist
in train door control systems, who testified on behalf of
the
plaintiff, expressed the view that it was a basic fundamental
requirement for the safe operation of a passenger train in any
country that a train should not depart with a door open. Mr Taute, a
mechanical engineer and retired General Manager (Operations
and
Technical) of the second defendant, who had gained experience over
many years on inter alia the safe running of trains and
commuter
safety and who was also called as an expert on behalf of the
plaintiff, said:
'As an operator you must have
clear guidelines and proper staff to make sure that you safely convey
your passengers. One of the
prime issues, prime things to do is to
make sure that the doors are closed. In other words you must lay down
proper procedures,
have staff to do it . . . I'll never accept the
fact that you can, accept running a train with doors open, I can't
accept that
that is an acceptable situation to operate a suburban
service on.'
The evidence of the defendants' expert, Mr Carver, a
mechanical engineer previously employed by the second defendant, was
that a
responsible train operator should do 'everything in his power'
to prevent trains departing with doors open.
[6] So far as the requirement contained in para (b) of
Kruger v Coetzee
is
concerned, it was the defendants' case that they had indeed taken all
reasonable steps to guard against the possibility that
commuter
trains, and in particular, the train which the plaintiff attempted to
board, would depart with doors open. The submissions
made by the
defendants' counsel on appeal in this regard are conveniently
tabulated in the heads of argument as follows:
'We submit that the Appellants
did exercise reasonable care in carrying out their duties by reason
of the following:
1. The regular maintenance that
was undertaken on the train set;
2. The checking of the doors at
the commencement of shift and the unlikelihood of a defect occurring
in the day subsequent thereto;
3. The employment of the guard;
4. The guard ensuring that the
platform was clear prior to the door close button having been
pressed;
5. The guard generally observing
(in the course of his duties) whether the doors were closing
properly;
6. The present and ongoing
replacement of the 5M coaches with 10M coaches;
7. The impossibility of having
the guard ensure that all the doors are closed prior to departure of
the train in that it would add
at least a further 15 minutes to the
train schedules, thereby resulting in fewer trains and greater
overcrowding, posing an even
greater risk to passengers;
8. The impossibility of
employing further personnel given that all trains do not have a
second compartment within which such a person
may be located. He/she
would accordingly have to sit in the driver's compartment and the
time-consuming process described above
would have to be followed at
every station, thereby also resulting in further delays and fewer
trains running.'
[7] Regular maintenance and checking of doors at the
commencement of each shift would lessen, but not obviate, the
possibility of
a malfunction. As Mr Taute said (and his view accords
with common sense):
'You see with mechanical
equipment you can never expect or accept that things are going to
work, something could happen, something
could happen between Retreat
[where the guard and driver had checked the operation of the doors at
the beginning of the shift]
and [the Witteboom] station which causes
the door not to work, with very fatal results to passengers, so that
is why you can't
assume, you can never assume that if a thing is
working now it will still be working within 24 hours or whatever, or
ten hours
or two hours, whatever.'
[8] The duties of the guard, set out in para 12001.2 of
the General Operating Instructions of the first defendant, were the
subject
matter of much debate. The paragraph reads:
'12001.2
Operation
of sliding doors on arrival at and before starting from stations or
other stopping places.
12001.2.1 Immediately after
stopping at a station or halt where the train is required to stop for
commuters, the metro guard must
release the sliding doors on the
platform side so that they can be opened manually.
12001.2.2 When the train is
ready to depart and after the metro guard has announced it orally, he
must blow his whistle as warning
that the sliding doors are going to
be closed. Thereafter he must press the "Door-CLOSING"
button and give the right-away
bell signal to the train driver.
12001.2.3 While performing their
duties, metro guards must observe whether or not sliding doors are
closing properly. If any sliding
doors are not operating correctly
the instructions in subclause 12001.4 must be complied with. They
must also warn commuters against
the undesirable practice of keeping
sliding doors open when the train is about to depart or en route.'
The plaintiff contended that the Instructions imposed a
duty on the guard to observe whether the sliding doors were closing
properly
after he had pressed the door-closing button and before he
gave the right-away bell signal to the driver. The defendants
contended
that the guard was only obliged to look at the sides of the
train from time to time whilst it was running between stations to see
whether doors were closed. For the purposes of liability in this
case, it matters not which interpretation is correct. Either the
Instructions imposed a duty on the guard to ensure that the train
doors were closed before he gave the signal to the driver to
proceed,
or they did not. If the Instructions did impose such a duty, it was
(correctly) conceded on behalf of the defendants that
the guard was
negligent in not carrying it out and it was not disputed that the
defendants would be vicariously liable for that
negligence. If the
Instructions did not impose such a duty, the defendants were
themselves negligent in not issuing such an instruction
for the
reasons which follow.
[9] It was the guard's own evidence that after the train
stopped at a station, he would get out of his cab at the back of the
train,
step about two metres away from the train and wait for persons
to embark and disembark. The fact that the guard ensures that the
platform is clear prior to pressing the door-close button does not
cater for the eventuality of a passenger suddenly emerging onto
the
platform intent on boarding the train and attempting to do so when he
or she sees a door open ─ which is precisely what
the plaintiff
did in this case. The guard readily conceded that if he had been
instructed to ensure that the doors were closed,
it would have been a
simple matter for him to have moved away from his cab to do just
that. And had he seen that a door was malfunctioning,
it was his
obligation in terms of the Instructions to inform the driver and
isolate the door ─ as he said he would have
done on the day in
question had he noticed that the doors through which the plaintiff
attempted to board the train were open.
[10] There would, of course, be a slight delay if the
guard were to inspect the doors each time a train was about to leave
a station.
Mr Taute agreed with counsel for the defendants that the
delay would be of the order of 40 seconds, and as there were 18
stations
on the route, a total delay of 15 minutes would have
resulted. That is hardly significant. Nor would such a delay have led
to congestion
or less trains, as suggested in argument, because if
each conductor of each train inspected the doors at each station the
interval
between the trains and the number of trains would remain the
same; and the timetable shows that the trains left more than 15
minutes
apart even at peak times.
[11] The fact that the defendants were (and probably
still are) replacing the old 5M coaches with new 10M coaches does not
assist
their case. If anything, greater precautions should have been
taken to guard against malfunctioning doors on the older coaches.
Contributory negligence
[12] I therefore consider that causative negligence was
established and I turn to consider the second issue on appeal,
namely, the
apportionment made by the court a quo in respect of the
plaintiff's contributory negligence. Section 1(1)(a) of the
Apportionment
of Damages Act
2
enjoins a court to reduce damages suffered by a claimant 'to such
extent as the court may deem just and equitable' having regard
to the
degree to which the claimant was also at fault. In
South
British Insurance Co Ltd v Smit
3
Ogilvie Thompson JA said:
'From the very nature of the
enquiry, apportionment of damages imports a considerable measure of
individual judgment: the assessment
of "the degree in which the
claimant was at fault in relation to the damage" is necessarily
a matter upon which opinions
may vary. In the words of LORD WRIGHT in
British Fame (Owners)
v MacGregor (Owners)
,
1943 (1) A.E.R. 33
at p. 35 (a maritime case; but the principle
appears to be equally followed in England in relation to the
Contributory Negligence
Act):
"It is a question of the
degree of fault, depending on a trained and expert judgment
considering all the circumstances, and
it is different in essence
from a mere finding of fact in the ordinary sense. It is a question,
not of principle, but of proportion,
of balance and relative
emphasis, and of weighing different considerations. It involves an
individual choice or discretion, as
to which there may well be
difference of opinion by different minds."
Were this Court readily to
interfere with a trial Court's apportionment of damages, dissatisfied
litigants would be encouraged to
appeal in well nigh every case.
Where, therefore, the trial Court has correctly found the facts and
has made no error in principle,
this Court . . . will not lightly
disturb the apportionment decided upon by the trial Court.'
The section requires the court of first instance to
exercise a narrow discretion.
4
Accordingly, an appeal court will not decide the question afresh; it
will interfere with the exercise of the discretion exercised
by the
trial court only where it is shown that:
'. . . the lower court had not
exercised its discretion judicially, or that it had been influenced
by wrong principles or a misdirection
on the facts, or that it had
reached a decision which in the result could not reasonably have been
made by a court properly directing
itself to all the relevant facts
and principles.'
5
An appeal court is therefore entitled to interfere (as
it can in respect of sentences imposed in criminal matters ─
another
example of the exercise of a narrow discretion) where its
assessment differs so markedly from that of the
court a quo as to warrant interference:
Shield
Insurance Co Ltd v Theron NO
6
[13] The defendants' counsel submitted that the
apportionment of 50 per cent was not fair and reasonable,
particularly because the
plaintiff boarded a moving train and the
defendants had adopted measures aimed at preventing trains from
departing with open doors.
But I cannot fault the determination by
the court a quo. It did not misdirect itself and its assessment does
not warrant interference
particularly in view of the following
remarks made by this court in
Transnet Ltd t/a
Metro Rail v Tshabalala
:
7
'A reasonable man in the
position of the defendant would not have allowed the train to operate
with the doors of the coaches open
as he would have foreseen that to
leave the doors of the railway coaches open would constitute an
invitation to prospective passengers
to board the train while moving
and that it would be dangerous for them to do so. Similarly, a
reasonable man in the position of
a prospective passenger would have
foreseen the danger of boarding a train after it had started to move
and would have refrained
from doing so. Both the defendant and the
plaintiff were therefore negligent.
Had
the plaintiff been sober and had he attempted to board the train
shortly after it started moving the degree to which he was
at fault
may well have been the same as that of the defendant.
That is however not what happened. The plaintiff was at least
somewhat intoxicated at the time and he tried to board the train
after it had moved a considerable distance and had probably gathered
some speed. The court
a
quo
summarised the
evidence of Emmanuel, whose evidence it accepted, as follows:
"The train started to leave
the station. When the plaintiff realised that the train was leaving
he started to run after it.
He was running in the direction of the
first class coaches. He ran past the coach in which he had been
travelling and two further
third class coaches. The next coach was a
first class coach. Mr Emmanuel could see that the plaintiff was not
going to make it.
He was staggering as he ran. Eventually he managed
to reach the first class coach. He grabbed onto the rail in the
middle of the
entrance to the coach and ran for approximately three
metres alongside the train whilst holding onto the rail. Then he lost
his
footing and disappeared from sight."
In the light of this evidence
the conduct of the plaintiff deviated from the norm, being that of a
reasonable man, to a substantially
greater degree than that of the
defendant. In the circumstances it would, in my view, be equitable to
reduce the damages suffered
by the plaintiff by two thirds.'
(Emphasis supplied.)
The appeal on this ground must therefore also fail.
Costs of expert witnesses
[14] The final question to be determined is the
correctness of the order made by the trial court in relation to the
two experts
that testified on behalf of the plaintiff. It was
submitted that neither could be regarded as a necessary witness, in
view of the
following passage in the judgment of the court a quo:
'Both the plaintiff and the
defendants presented a great deal of expert testimony. In my opinion
these experts do not contribute
to a resolution of this matter.'
It was therefore submitted that the court a quo should
not have declared the plaintiff's two experts necessary witnesses,
nor allowed
their qualifying fees.
[15] There appears to be some confusion underlying the
order made by the court a quo and counsel's submission. An expert
witness's
qualifying fees (now more appropriately termed 'preparation
fees' in the Uniform Rules) will only be allowed on taxation if
authorised
by the court or with the consent of all interested
parties. The proviso to item 5 of section D of the schedule to
Uniform Rule
70 makes this clear:
'Provided that the preparation
fees of a witness shall not be allowed without an order of the court
or the consent of all interested
parties.'
This proviso takes qualifying fees out of the concluding
part of rule 70(3) (
Köhne v Union and
National Insurance Co Ltd
)
8
which sets out the general duties of the taxing master as follows:
'With a view to affording the
party who has been awarded an order for costs a full indemnity for
all costs reasonably incurred by
him in relation to his claim or
defence and to ensure that all such costs shall be borne by the party
against whom such order has
been awarded, the taxing master shall, on
every taxation, allow all such costs, charges and expenses as appear
to him to have been
necessary or proper for the attainment of justice
or for defending the rights of any party, but save as against the
party who incurred the same, no
costs shall be allowed which appear to the taxing master to have been
incurred or increased through
over-caution, negligence or mistake, or
by payment of a special fee to an advocate, or special charges and
expenses to witnesses
or to other persons or by other unusual
expenses.
'
[16] The allowances paid to witnesses and which are
prescribed pursuant to s 42 of the Supreme Court Act
9
may be claimed on taxation in respect of any witness, lay or expert.
The current tariff, published this year,
10
repealed the long outdated tariff which had been in force for 16
years.
11
The tariff provides for a subsistence allowance, transport and
travelling expenses, and an allowance up to a maximum of R1 500
for income lost in consequence of attendance at a civil case; and it
no longer distinguishes between expert and other witnesses.
[17] No special charges or expenses paid to witnesses
can be taxed because of the latter part of Uniform Rule 70(3), quoted
above.
Indeed, an agreement by a party to remunerate a witness for
testifying in his cause (as opposed to an undertaking to pay to a
witness
the statutory allowances) is against public morals and
unenforceable:
Van Aswegen v Lombard
.
12
This applies also to an expert witness (although an expert witness
can charge for preparation); as Innes CJ (Wessels and Curlewis
JJ
concurring) said in
Marais v Pilkington
:
13
'The provisions of the
Roman-Dutch law with regard to the obligation of all persons to give
evidence who are able to do so were
very strict; and the law went far
in compelling evidence and in discountenancing any special payment in
connection therewith. It
is a fundamental rule that a person who is
in a position to aid the administration of justice by giving evidence
as to facts within
his knowledge is bound to appear in court and do
so. And there is a scale of remuneration fixed in all such cases.
Now, though
an expert witness differs from an ordinary witness in
this respect, that he is a volunteer and must qualify himself by
ascertaining
the facts upon which he then proceeds to bring his
opinion to bear, yet when he has once done so I cannot see any real
distinction
between his position and that of a man who happens to
have seen certain things take place and has to depose regarding the
particulars
of what he saw. A man who has gone out of his way to
qualify himself, who has put himself in possession of the facts, and
has formed
his opinion as an expert, is, it seems to me, as much
bound to impart his opinion to the Court as an ordinary man is to
state what
he knows about facts in dispute.'
Therefore although an expert is free to stipulate for
whatever rate he considers appropriate for preparation, those fees
cannot
include remuneration for time spent in the witness box:
Pakes
v Moseley
.
14
[18] If the court allows the preparation fees of an
expert, it does not follow that the allowances prescribed under the
Supreme
Court Act should also be
claimable on taxation ─ for example, if the issue
on which the expert was to testify fell away after the preparation
fees
were incurred and his attendance at court became unnecessary,
any allowances subsequently paid for this purpose might not be
claimable
on taxation. Whether preparation fees or allowances should
be claimable on taxation depends on whether they were reasonably
necessary
and that question is to be answered not with the benefit of
hindsight, but when the fees or expenses were incurred:
Stauffer
Chemical Co v Safsan Marketing and Distribution Co (Pty) Ltd
.
15
If, therefore, it appears to the court (in the case of preparation
fees of an expert) or the taxing master (in the case of the
statutory
allowances) that it was reasonable for the legal representatives of
the successful party to incur such expenses when
they did so, the
expenses should be allowed. The consequence is that qualifying fees
16
and witness allowances
17
may be allowed on taxation, even though the witness concerned did
not, in the event, testify.
[19] Although allowances claimed in respect of any
witness may only be claimed if they were reasonably incurred, and
although preparation
fees in the case of an expert have to be allowed
by order of court or by consent, a declaration by a court that a
witness (whether
lay or expert) was a necessary witness is not
required before the allowances prescribed by the Supreme Court Act
can be awarded
on taxation. The same applies to a litigant witness
because the statutory basis for a declaration in such a case has
fallen away:
the Uniform Rules contain no such requirement; rule
33(15) of the magistrates' court rules of court, which originally
required
such a declaration, was deleted in 1977;
18
and pre-Union legislation,
19
which also required such a declaration, has been repealed.
20
In all cases therefore a declaration that a witness was a necessary
witness is not necessary so a court should not usurp the function
of
the taxing master by making one, and the taxing master is not
entitled to require one (as we were informed is the practice in
the
Cape High Court). It is of course open to a court to give any
indication to the taxing master it considers may be useful.
[20] I return to the facts. The two experts called on
behalf of the plaintiff gave evidence which was of an expert nature.
The defendants'
counsel submitted that some of the evidence of Mr
Taute did not fall into that category; but it is for the taxing
master to decide
what part of the fees payable to this witness were
spent on preparing him to express the opinions which he did, and are
therefore
allowable on taxation. Mr Myatt's evidence was necessary in
particular to rebut assertions made by the defendants' expert, Mr
Carver.
The fact that the trial court found itself able to determine
the issues without the aid of expert evidence, does not derogate from
the fact that preparation fees were reasonably incurred to enable
them to give expert evidence on the issues that were before the
court.
[21] The only success which will be achieved by the
defendants on appeal is the deletion of the declaratory order that
the plaintiff's
expert witnesses were necessary witnesses. That minor
success should make no difference to the amount allowed on taxation
and it
accordingly does not justify any costs order in their favour.
[22] The following order is made:
1. The order of the court a quo declaring Messrs Myatt
and Taute necessary witnesses is deleted and that part of the order
is amended
to read: 'The preparation fees of Messrs Myatt and Taute
shall be allowed on taxation'.
2. Save as set out in 1, the appeal is dismissed.
3. The appellants are ordered, jointly and severally, to
pay the respondent's costs of appeal, including the costs of two
counsel.
_______________
T D CLOETE
JUDGE OF APPEAL
Appearances:
Counsel for Appellant: N M Arendse SC
Ms K Pillay
Instructed by: Godwin Bossr, Cape Town
Correspondent: Lovius-Block Attorneys, Bloemfontein
Counsel for Respondent: R D McClarty SC
J H Roux SC
Instructed
by: Heyns & Partners Inc, Cape Town
Correspondent: Honey
Attorneys, Bloemfontein
1
1966 (2) SA 428
(A) at 430E-G.
2
34 of 1956.
3
1962 (3) SA 826
(A) at 837F-838A.
4
Media Workers Association of South Africa v Press Corporation of
South Africa Ltd ('Perskor')
[1992] ZASCA 149
;
1992 (4) SA 791
(A) at 800C-G;
Wijker v Wijker
1993 (4) SA 720
(A) at 727J-728B;
Ganes v
Telecom Namibia Ltd
2004 (3) SA 615
(SCA) para 21;
Naylor v
Jansen
2007 (1) SA 16
(SCA) para 21;
Giddey
NO v J C Barnard and Partners
[2006] ZACC 13
;
2007 (5)
SA 525
(CC) para 19 at 534A-B and n
17.
5
National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs
2000 (2) SA 1
(CC) para 11. See also
Benson
v SA Mutual Life Assurance Society
1986 (1) SA 776
(A) at 781I-782B and cases there cited;
Giddey
NO v J C Barnard and Partners
above n
4 para 19;
Naylor v Jansen
above, n 4;
Malan v The Law Society of
the Northern Provinces
[2008] ZASCA 90
para 13.
6
1973 (3) SA 515
(A) at 518B-D.
7
[2006] 2 All SA 583
(SCA) para 9.
8
1968 (2) SA 499
(N) at 504E-F.
9
59 of 1959; the corresponding section in the
Magistrates' Courts Act 32 of 1944
, is
s 51
bis
.
10
Under GN R394 in
Government
Gazette
30953 of 11 April 2008.
11
GN R2597 in
Government
Gazette
13604 of 1 November 1991.
12
1965 (3) SA 613
(A) and cased there quoted.
13
1905 TS 650
at 651-2 quoted with approval by this
court in
Van Aswegen v Lombard
,
above, n 12, at 618D-G.
14
1909 TS 166
, approved by this court in
Van
Aswegen v Lombard
above, n 12 at
619A-E; and see the remarks of Mason J in
Kemp
v Power
reported sv
Power
v Kemp
1911 AD 419
at 428, also quoted
with approval in
Van Aswegen v Lombard
,
at 619G.
15
1987 (2) SA 331
(A) at 354I-355H.
16
Stauffer Chemical Co v Safsan Marketing and
Distribution Co (Pty) Ltd
above, n 15,
loc cit.
17
Cf
Stanley Motors
Ltd v Administrator, Natal
1959 (1) SA
624
(D) at 629C-G.
18
By GN R2221 in
Government
Gazette
5790 of 28 October 1977.
19
Section 8
of Act 4 of 1861 (C); s 49 of
Proclamation 16 of 1902 (T); s 60 of Ordinance 11 of 1902 (O).
20
By the Pre-Union Statute Law Revision Act 36 of
1976.