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[2018] ZANCHC 84
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Louw v Wesbank a division of Firstrand Bank Ltd (905/2018) [2018] ZANCHC 84 (19 November 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No: 905/2018
Heard on: 14/09/2018
Delivered
on: 19/11/2018
In
the matter between
GETRUDE
LOUW
Appellant
And
WESBANK
a division of FIRSTRAND BANK
LTD
Respondent
JUDGMENT
PAKATI
J
[1] The
applicant, Ms Gertrude Louw, applies for an order declaring the
credit agreements
between her and the respondent, Wesbank, a division
of FirstRand Bank Limited (“the bank”), valid and
enforceable.
She also seeks an order prohibiting the respondent from
taking possession of two vehicles, a 2016 Volkswagen Golf VII 2.0 TSI
R
DSG and a 2018 Ford Ranger Bakkie 2.2 TDCI XL, purchased under the
credit agreement until the main dispute has been resolved and
the
respondent has shown cause as to why the credit agreement should be
cancelled on the basis of invalidity (the main application).
[2] The bank
opposes the main application and seeks a counter-application for the
interim
attachment of the said motor vehicles for safekeeping pending
the finalisation of the action instituted under Case Number 1046/2018
against Ms Louw. The applicant also applies for condonation for the
late filing of the opposing affidavit to the counter-application.
CONDONATION
[3] Mr
Kammies, on behalf of the applicant, explains that the replying
affidavit was out
of time due to unforeseen circumstances. He did not
receive the opposing affidavit to the counter-application. The
replying affidavit
was supposed to have been filed on 04 July 2018.
The notice to oppose the counter-application and the replying
affidavit were only
filed on 10 September 2018. However, the opposing
affidavit to the counter-application is dated 10 July 2018.
Mr Kammies explains further that he was confused and unaware that the
respondent’s opposing papers to the main application
had
already been filed. He mentions that Mr Mzuzu, the applicant’s
attorney of record, had an issue with the Cape Law Society
and was
therefore unable to file any papers. Mr Kammies was also hospitalised
for more than a month. He argues that there is no
prejudice to the
respondent as the applicant’s replying affidavit and the
opposing papers to the counter-application have
now been filed.
[4] Mr
Pretorius, for the respondent, opposes the application for
condonation on the basis
that page 55 of the paginated papers clearly
show that the answering affidavit to the founding affidavit and the
affidavit in support
of the counter-application were filed on 26 June
2018. Paragraph 38 of the paginated page 70 clearly states: ‘
I
shall now answer the allegations made in the founding affidavit.’
[5] On 09 May
2018 the bank filed a notice of intention to defend the main
application.
On 21 June 2018 it filed a notice to the
counter-application and on 26 June 2018, an answering affidavit to
the founding affidavit
and an affidavit in support of the
counter-application. It is therefore not accurate for the applicant
to allege confusion as to
which papers were filed. Mr Kammies
requests the court to grant condonation, which in the interests of
justice I granted
considering that it was not the applicant’s
fault that her replying affidavit was filed late.
BACKGROUND FACTS
[6] On 27
December 2017 Ms Louw and her husband, one of the directors of Mawele
Construction
and mayor of Kakamas, Mr Marius Matthews Louw,
approached Thys Auto, a retailer in Upington to ascertain whether
they qualified
to purchase motor vehicles. Ms Louw states that at the
time she was appointed as Administrative Manager of Mawele
Construction
(Pty) Ltd, a newly formed company. She alleges that the
appointment was duly signed by the company directors during a general
meeting
of shareholders and directors on 08 December 2017. At the
time she and her husband approached the retailer, Mawele Construction
had not received its registration certificate. She states that there
was a problem with the application for the registration certificate
which was in the meantime resolved by the issue of a certificate
dated 23 January 2018 in terms of section 14 of the Companies
Act
[1]
.
[7] According
to the applicant before the certificate was issued the company could
not
open a bank account. The directors agreed that her salary would
be paid from her husband’s personal account. That was possible
because the company received cash payments for two projects that were
completed during that period and her husband was in a financial
position to pay her salary. From Annexure “W8”, Mr Louw’s
FNB account number [….] from 24 December 2017
until 26 May
2018 (Annexure “W8”), shows two payments of R38 550-00
on 21 December 2017 to Ms Louw. She states
that all this information
was conveyed to Mr Strydom of Thys Auto when she sought financial
assistance. After completing the application
form Mr Strydom informed
them that the completed form, her salary advice as well as her
identity document would be forwarded to
the bank for consideration
and approval. After the bank approved her application for the
purchase of the motor vehicles she took
them into her possession. She
vehemently denies that she and her husband misled Mr Strydom by
making any misrepresentation.
[8] Shortly
after Ms Louw took possession of the motor vehicles Auto Thys
contacted her
and informed her that the bank had laid charges of
fraud against her. She was requested to return the motor vehicles,
which she
did without hesitation. She denied committing any fraud
when she completed the application form. To her dismay, Mr Strydom
later
informed her that there was a misunderstanding. The motor
vehicles were then returned to her.
[9] During
January 2018 the bank addressed two letters to Ms Louw requesting her
to return
the motor vehicles again stating that the agreements had
been cancelled due to the misrepresentation allegedly committed by
her
when she completed the application forms requesting for credit.
The bank immediately refused to deduct the instalments despite the
availability of funds in her bank account. She therefore insists that
the credit agreement is still valid and refuses to return
the motor
vehicles to the bank alleging that she purchased them legally. She
still has not returned the motor vehicles to the bank
despite demand.
THE COUNTER-APPLICATION
[10] On 02 June 2018 the
bank filed a counter-application seeking the return of the said motor
vehicles
into the Sheriff’s possession who should deliver them
to the bank.
[2]
The
bank would in turn
and at its own cost, transport the vehicles to garaged premises and
retain them under security pending the outcome
of the action against
Ms Louw under Case Number 1046/2018 instituted by the bank. Should Ms
Louw fail to return the said motor
vehicles the sheriff should be
authorised to seize them from whomever and wherever he might find
them and hand them over to the
bank. The purpose of the interim
attachment is to protect the vehicles against deterioration and
damage. It further requests
that Ms Louw be ordered to pay costs of
the counter-application on a scale as between attorney and client.
COMMON CAUSE FACTS
[11] The following facts
are common cause:
11.1 That the motor vehicles remain the bank’s
property until the final instalments have been paid in full;
11.2 That Ms Louw purchased the VW Golf from the bank in
terms of the instalment sale agreement on 27 December 2017 for a
purchase
price of R 561 197-00 including finance charges of R
414 010-90; and
11.3 That on 08 January 2018 Ms Louw concluded the
second instalment sale agreement with the bank for the purchase of a
2018 Ford
Ranger 2.2 for a purchase price of R 436 997-00
including finance charges of R 272 133-85.
[12] The following were
relevant and important clauses under the instalment sale agreements
between
the parties and can be summarised thus:
12.1 The bank would remain the owner of the motor
vehicles until all the instalments due under the instalment sale
agreements have
been paid in full; and
12.2 Should the applicant make misleading statements to
the bank before signing the sale agreements, the bank would be
entitled
to cancel the agreements and take possession of the motor
vehicles, retain all payments already made and claim as liquidated
damages
payment of the difference between the balance outstanding on
the accounts and the market value of the motor vehicles?
[13] The bank alleges that
it performed its obligations in terms of the agreements and Ms Louw
also
took delivery of the motor vehicles.
[14] Mr Moemagare Samuel
Motlhodi, a fraud risk specialist investigator, the deponent to the
answering
affidavit and the one in support of the
counter-application, states that during January 2018 he received an
anonymous telephone
call informing him that Ms Louw had supplied
false information to the bank when she applied for vehicle finance.
According to Mr
Motlhodi the investigation revealed that prior to and
at the time of the conclusion of the agreements Ms Louw allegedly
made material
and oral fraudulent misrepresentations to the
representatives of the bank as follows:
14.1 That she was employed at Mawele Construction (Pty)
Ltd from 01 December 2017 as an administrative manager according to a
purported
salary advice presented at the time (Annexure “GL4”);
14.2 That Mawele Construction conducted business from 1
Hoof Street; Kakamas with landline number (054) 839 4700 with its
postal
address as Post Box 613, Kakamas, 8870;
14.3 That she was employed by the said company as a
department manager whereas the purported salary advice presented to
the bank
shows her designation as administration manager (Annexures
“W51” and “W52”) ;
14.4 That she was paid a net salary of R38 550-00
per month by the company according to the purported salary advice she
presented
to the bank (Annexure “GL4”);
14.5 She furnished the bank with a purported
‘Dienskontrak (025) (Annexure “GL1”) ostensibly
signed by Mr Gregory
Mathian, the director of the company, who was
only appointed as such on 23 January 2018;
14.6 She provided the bank with an interim bank
statement from First National Bank with account number 62507211499
showing two deposits
of R 38 550-00 on 21 December 2017 with the
following narrative: “
FNB OB PMT PAY025”
and
ATM ACC
PAYMESALARIS MA”
; and
14.7 Ms Louw allegedly represented that income tax in
the amount of R11 300-00 was deducted from her gross salary as
indicated
in her purported salary advice (Annexure “GL4”).
[15] Mr Matlhodi submits
further that when Ms Louw made the alleged representations she
intended the
bank to rely on the information provided in making its
decision to finance her. The said misrepresentation induced the bank
and
financed her. The representations were, according to him, false
and Ms Louw knew that when she gave the information.
[16] The investigation
further revealed that four payments of R 33 000-00 on January
2018, 28
February 2018, 03 April 2018 and 02 May 2018 received by Ms
Louw had different narratives and reference numbers (“Ref: 035
Mawele Konstruksie”) when compared with the payment of
R38 550-00 with “Ref 025” that she received in
December
2017. These payments originate from Standard Bank Account
Number 41728548 opened during January 2018. The account holder’s
name does not appear but it would be safe to assume that it was the
company’s account number after it was registered and
incorporated on 23 January 2018. The investigation further showed
that as at March 2018 the said Standard Bank account received
only
two credits of R 34 000-00 on 29 January 2018 and R 33 000-00
on 27 February 2018. Notably, each payment was
done a day prior
to each of the purported salary payments to Ms Louw. It also
transpired that no income tax payment of R11 300-00
per month
was deducted from her salary and paid to South African Revenue
Services.
[17] The bank alleges that
if Ms Louw had not misled it when completing the application it would
not
have approved finance for her. Her conduct justifies the
cancellation of the agreement hence on 26 January 2018 the bank
forwarded
a written notice informing her that the agreements were
void
ab initio
(Annexure “W12.1”). In a letter
dated 09 March 2018 the bank’s attorneys of record, Rossouws,
Lessie Inc, demanded
the return of the motor vehicles due to the
cancellation of the agreements based on ‘
serious
misrepresentation’
(“W13”). It thereafter
issued summons against Ms Louw on 07 May 2018 claiming the return of
the said motor vehicles.
No response was forthcoming from Ms Louw.
She is still in possession of the said motor vehicles.
[18] Ms Louw denies any
interaction with the bank during her applications but with the
salesperson.
She argues that she insured the motor vehicles to
prevent damage or permanent loss. She argues further that after the
bank refused
to accept the instalments she was informed that she
should return them again, which she refuses to do. She claims that
before the
dispute arose she was the lawful possessor and insists
that the agreements were not properly cancelled.
[19] Ms Louw states that
when the motor vehicles were returned on the first occasion after the
alleged
fraudulent misrepresentation the allegations were shown to be
unfounded when the motor vehicles were returned. She proffers no
elaboration on this. The bank on the other hand claims that return of
the vehicles is subsequent to the cancellation of the instalment
sale
agreements as a result of the alleged fraudulent misrepresentation by
Ms Louw. She seeks an order enforcing the validity of
the credit
agreement and asks the Court to refuse the counter-application
pending finalisation of the investigation into the validity
of the
credit agreement.
[20] Regarding the main
application the issue to be determined is whether Ms Louw has made
out a case
for the declaratory order and whether she has satisfied
the requirements of the interim interdict that she seeks. The
declaratory
order is final in nature and therefore the principle in
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS
(PTY) LTD
[3]
is applicable. In this case it was held that where in motion
proceedings disputes of fact arise on the affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant’s affidavit
which have been admitted by the respondent, together with the facts
alleged by the respondent justify such an order. At page 635
the
learned Judge of Appeal held further:
‘
Moreover, there may be exceptions to this general
rule, as, for example, where the allegations or denials of the
respondent are
so far-fetched or clearly untenable that the Court is
justified in rejecting them merely on papers.’
[21] In her founding
affidavit Ms Louw does not give a date when she and her husband
approached the
retailer, she says during December 2017. In her
application dated 19 December 2017 she mentioned that she had been
employed by
the Construction for two months as a department manager.
According to her service contract she started work on 01 December
2017.
This is clearly a contradiction.
[22] On the same breadth
Ms Louw’s contract of employment (Annexure “GL1”
and her
salary advice “GL4”) she states that she was
employed by Mawele Construction from 01 December 2017 to 22 December
2017
as administrative manager whereas the ‘confirmation of
customer application details’ attached in support of her
application
(Annexures “W5.1” and “W5.2”)
record her designation as department manager as alluded to earlier.
The salary
advice which she attached to her application shows that
the salary period as at 01 December 2017 with a total salary package
of
R 49 850-00 with salary number 025 was signed by one of the
directors, Mr Gregory Mathian. It is not possible that she was
employed by this company either as department manager or
administrative manager from 01 December 2017 because the company was
non-existent at the time and Mr Mathian was only appointed as
director of the company on 23 January 2018. The company was only
registered and incorporated on 23 January 2018. This is clear from
the registration certificate attached to the founding affidavit
as
Annexure “GL3”.
[23] The investigation
reveals through the TransUnion Search (Annexure “W7”)
that the
company’s registered address, 1696 Pioneer Street,
Langverwacht, Kakamas, is Ms Louw’s private residence and no
business
is conducted from the said address or 1 Hoof Street, Kakamas
for that matter. Again, the landline number that she provided has
been shown to be non-existent because when Mr Matlhodi dials it an
automated voice prompt would say: ‘
The number you have
dialled does not exist
.
Please re-dial carefully or consult
directory enquiries
.’ Even the postal address she furnished
in her application form (Post Box 613, Kakamas, 8870) belongs to a Mr
Kosie Human
with identity number 541004 5018 088, residing at House
50, Kakamas. Importantly, Mr Human is not a member or a director of
the
company as shown in Annexure “W7”.
[24] According to Mr
Matlhodi Ms Louw’s husband had during June 2017 and November
2017 sought
vehicle finance but was unsuccessful because his credit
rating was low and he had two civil judgments granted against him.
His
salary of R46, 887-70 shown in his bank statements is from the
Kai Garib Municipality as a mayor. Ms Louw’s salary was clearly
not paid from the company as she alleged.
THE MAIN APPLICATION
[25] The requirements for
the right to claim a final interdict are: (a) a clear right; (b) an
injury
actually committed or reasonably apprehended; and (c) the
absence of similar protection by any other remedy.
[4]
CLEAR RIGHT
[26] The applicant argues
that its right to possess the motor vehicles is derived from the
agreements.
She claims that she is the lawful possessor of the motor
vehicles and therefore has a vested right in them. She disputes that
there
was proper cancellation of the agreements and that she has no
alternative similar protection than to approach the court. She states
that she initially intended to solve the issue through alternative
dispute resolution which was refused by the bank. This, she
states,
infringes upon her rights to possess the motor vehicles. According to
her there has been no factual dispute raised until
the
counter-application and the summons were served on her. She disputes
that her application is vindicatory in nature. She prays
for an order
as prayed for in the notice of motion.
IRREPARABLE HARM
[27] The applicant failed
to indicate a well-grounded irreparable harm if the relief sought is
not
granted. She proffers no explanation that the balance of
convenience favour the granting of the order in her would favour.
COUNTER-APPLICATION
[28] To succeed in this
application the applicant is required to establish and satisfy the
well-established
requirements for the grant of an interim interdict.
It is required to show: (a) that the right which it seeks to enforce
is clear,
or, is
prima facie
established, though open to some doubt; (b) that, if the right is
only
prima facie
established, there is a well-grounded apprehension of irreparable
harm if the interim relief is not granted; (c) that the balance
of
convenience favours the granting of interim relief; and (d) that the
applicant has no other satisfactory remedy.
[5]
If the claim by an applicant for an interdict
pendete
lite
is vindicatory and if in the
circumstances he is entitled to an interim interdict restraining the
use of the thing by the respondent,
there is no reason why a further
order should not be granted authorising attachment
pendete
lite
to give effect to the restraint against
use and to protect the thing from deterioration.
[6]
CANCELLATION
[29] It is settled law (at
least in this division) that it is a prerequisite for the grant of an
interim
attachment order, that any agreement under which the
respondent has the right to possess the vehicles first be
cancelled.
[7]
In the circumstances it cannot be said that the agreements were valid
and enforceable, hence the bank refused to continue with
the debit
orders from the applicant’s account. The cancellation of the
agreements cannot be said to be unreasonable in the
face of the
misrepresentation by Ms Louw. It can safely be perceived that the
company was used as a front employer to induce the
bank to finance
her.
[30] Ms Louw states that
after she took possession of the motor vehicles she was contacted by
the
dealer Thys Auto to return them indicating that the bank had laid
fraud charges against her. She says: ‘
Due to the fact that I
do not want to cause any trouble and needed this issue to be sorted
out, I decided to cooperate and return
the vehicles to the dealer.’
In my view, the situation is no different because if she does ‘not
want to cause trouble and want the issue sorted out she
should do
what she did earlier by returning them.
[31] Again in her heads of
argument Ms Louw states that ‘
information was required and
provided to the salesperson whereby the latter completed the
application form on his own account and
was the applicant later
required to sign same.’
She states further that ‘
all
application forms were completed by Mr Strydom and that he only
requested us to sign on the dotted line without requesting us
to
confirm the correctness of the content of such application. I submit
that if ever there is an allegation that fraudulent information
was
contained in my application for financing, the buck has to be passed
to the dealer and not to myself.
’ Yet in paragraph 9 of the
founding affidavit she states: ‘
I then proceeded to complete
the application forms in the presence of Mr Strydom who then
submitted the application forms together
with annexures to the
respondent, subject to their approval.’
[32] Mr Louw states in his
confirmatory affidavit attached to the opposing affidavit to the
counter-application
dated 20 July 2018 that neither he nor Ms Louw
informed Mr Strydom that the main place of their business was 1 Hoof
Street, Kakamas.
He states that it was due to Mr Strydom’s
mistake. Strange enough, the form titled ‘Customer Application
Details’
shows the employer business address as 1 Hoof Street,
Kakamas. Ms Louw denies that she told Mr Strydom that she was
appointed as
the department manager as Mawele Construction is not in
production but in construction. It is inconceivable where Mr Strydom
would
have got the information contained in the Customer Application
Details from. Mr Strydom would not have sucked it from his thumb.
[33] In
OLYMPIC
PASSENGER SERVICE (PTY) LTD v RAMLAGAN
[8]
Holmes JA had this to say:
‘
It thus appears that where the appellant’s
right is clear, and the other requisites are present, no difficulty
presents itself
about granting an interdict. At the other end of the
scale, where his prospects of ultimate success are nil, obviously the
Court
will refuse an interdict. Between those two extremes fall the
intermediate cases in which, on the papers as a whole, the
applicant’s
prospects of ultimate success may range all the way
from strong to weak. The expression ‘
prima
facie
established though open to some doubt’
seems to me a brilliantly apt classification of these cases. In such
cases, upon proof
of well-grounded apprehension of irreparable harm,
and there being no adequate ordinary remedy, the Court may grant an
interdict
– it has a discretion, to be exercised judicially
upon a consideration of all the facts. Usually this will resolve
itself
into a nice consideration of the prospects of success and the
balance of convenience – the stronger the prospects of success,
the less need for such balance to favour the applicant: the weaker
the prospects of success, the greater the need for the balance
of
convenience to favour him. I need hardly add that by balance of
convenience is meant the prejudice to the applicant if the interdict
be refused, weighed against the prejudice to the respondent if it be
granted.’
[34] It is common cause
that the respondent is the owner of the motor vehicles in terms of
the agreements.
The bank submits that since it has validly cancelled
the agreements it remains the lawful owner of the motor vehicles in
terms
of the agreements.
[34] The bank alleges that
the applicant and her husband are in control of the vehicles and they
use
them. They are depreciating in value which is prejudicial to the
bank. The applicant would suffer no prejudice if the bank preserves
them. The bank submits that due to the cancellation of the agreements
it owns both motor vehicles and is therefore entitled to
preserve
them pending the action. In those circumstances the balance cannot be
said to favour the applicant as the vehicles would
lose value if
used.
[35] In her founding
affidavit Ms Louw does not mention that she also approached Auto
Lexus CC in
Upington but only mentions Thys Auto. She also did not
mention that her husband could not get finance from the bank for the
purchase
of a 2016 Chevrolet Spark and a Nissan NP 200 during June
2017. She is clearly economical with the truth. The salary advice,
the
business address, the amount deposited into her bank account
purported to be her salary and the service contract was bogus, in my
view. None of the other directors of the company filed confirmatory
affidavits except Mr Mathian. What is clear is that the company
was
only registered and incorporated on 23 January 2018 as alluded to
earlier. From the facts as presented it is doubtful that
the bank
would have financed the applicant if it had not been induced to do so
by the applicant and her husband. The bank states
that five case
dockets have been laid against the applicant.
[36] Seeing that the claim
is a vindicatory one and there is a strong right to cancellation and
restoration
of the vehicles to the bank less weight should be placed
to the element of irreparable harm.
[9]
In my view, the balance of convenience clearly favours the bank and
that other requisites are also present for reasons already
advanced.
The counter-application has to succeed with costs.
In
the circumstances I grant the following order:
1.
The
main application is dismissed.
2.
The
applicant, Ms Louw is ordered to forthwith deliver into the
possession of the Sheriff of this Division a 2016 Volkswagen Golf
VII
2.0 TSI R DSG with engine number WVWZZZAUZGW284785 and a 2018 Ford
Ranger 2.2 TDCI XL A/T P/U D/C with engine number QJ2LPHC22366,
who
shall deliver them to the respondent, Wesbank ,a division of
Firstrand Bank Limited, who shall in turn, at its own expense:
2.1
Transport
the vehicles to garaged premises situate at Day and Knight Towing, 3
Cecil Sussman Street, Kimberley;
2.2
Retain
the vehicles at such garaged premises under security, pending the
outcome of the action under Case Number 1046/2018 instituted
by the
respondent, Wesbank, against the applicant, Ms Louw, in this Court.
3.
The
respondent shall not use the vehicles or permit that they be used.
4.
In
the event that the applicant fails to comply with the order above
within five days of service of this order on the applicant’s
attorneys of record, the Sheriff is authorised and directed to take
the vehicles into his possession from whomever and wherever
he may
find them and return them to the respondent as aforesaid.
5.
The
applicant is ordered to pay the costs of this application on a scale
as between party and party.
______________
JUDGE
BM PAKATI
NORTHERN
CAPE DIVISION, KIMBERLEY
For
the Applicant:
ADV KAMMIES
Instructed
by:
MZUZU ATTORNEYS
For
the Respondent:
ADV PRETORIUS
Instructed
by:
DUNCAN & ROTHMAN ATTORNEYS
[1]
Act 71 of 2008
[2]
Fedsure Life Assurance v Worldwide African Investment Holdings
2003
(3) SA 268
at para [27] Cloete J held: ‘A vindicatory action
has been categorised as one in which the plaintiff claims delivery
of
specific property as owner or lawful possessor.’
[3]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-I
[4]
Setlogelo v Setlogelo
1914 AD 221
at 227
[5]
SA Taxi Securitisation (Pty) Ltd v Chesane
2010 (6) SA 557
(GSJ) at
para [11]
[6]
Van Rhyn v Reef Developments A (Pty) Ltd
1973 (1) SA 488
(W)
(Headnote); see also SA Taxi Securitisation
supra
at para
[10] where the court held that the function and purpose of an
interim attachment order is to protect the leased goods
against
deterioration and damage and to keep them in safekeeping until the
case between the parties has been finalised.
[7]
SA Taxi Securitisation (Pty) Ltd at para [13]
[8]
1957 (2) SA 382
(D) at 383C-G
[9]
Stern and Ruskin
1951 (3) SA 800
(W) at 813