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[2008] ZASCA 157
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Letseng Diamonds Limited v JCI Limited and Others (580/07) [2008] ZASCA 157; 2009 (4) SA 58 (SCA) ; [2009] 2 All SA 337 (SCA) (27 November 2008)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 580/07
In
the matter between:
LETSENG
DIAMONDS LIMITED
APPELLANT
and
JCI
LIMITED
FIRST
RESPONDENT
INVESTEC
BANK LIMITED SECOND RESPONDENT
JCI
INVESTMENT FINANCE (PTY) LIMITED THIRD RESPONDENT
Neutral
citation:
Letseng
Diamonds Ltd v J C I Limited
(580/07)
[2008] ZASCA 157
(27 November 2008).
CORAM
:
FARLAM,
MTHIYANE, JAFTA, MAYA et CACHALIA JJA
HEARD
:
25
AUGUST 2008
DELIVERED
:
27
NOVEMBER 2008
SUMMARY:
Companies
– shareholders – accuracy in circular convening meeting
regarding validity of contract to which company is
party –
locus
standi
of
shareholder to obtain declarator as to accuracy of circular.
______________________________________________________________
ORDER
______________________________________________________________
On
appeal from:
Johannesburg
High Court (Blieden J sitting as court of first instance).
1. The appeal succeeds
with costs, including those occasioned by the employment of two
counsel.
2. The order of the court
below in so far as it relates to the appellant’s application in
that court is set aside and replaced
by an order in the following
terms:
‘
In the
Letseng application:
1. It is declared
that the applicant does have
locus
standi
to
raise the issues referred to in the Investec separation application
dated 20 April 2007 (as quoted in paragraph 9 of the judgment
in this
application).
2. The main
application is postponed
sine
die
in
order for the other issues stated therein to be adjudicated.
3. Investec is ordered to pay the
applicant’s costs in regard to the separation application, such
costs are to include the
costs of two counsel.’
______________________________________________________________
JUDGMENT
______________________________________________________________
FARLAM
JA (Mthiyane, Maya et Cachalia JJA concurring)
[1]
This is an appeal from a judgment of Blieden J, sitting in the
Johannesburg High Court, who held that the appellant, Letseng
Diamonds Ltd, did not have
locus
standi
to
raise certain issues which he had ordered, in terms of Rule 33(4) of
the Uniform Rules, should be separated from the other issues
in an
application brought by the appellant against the three respondents,
JCI Ltd, Investec Bank Ltd and JCI Investment Finance
(Pty) Ltd.
[2]
The relief originally sought by the appellant, which is a shareholder
in the first respondent, was for an order interdicting
a general
meeting of the first respondent’s shareholders from considering
two resolutions in which they were asked to ratify
certain agreements
between the first and second respondents and also interdicting the
first respondent from paying what was described
as a ‘raising
fee’ to the second respondent pursuant to the main agreement
between them. In what follows I shall call
this agreement ‘the
loan agreement’.
[3]
Subsequently the appellant amended its notice of motion,
inter
alia,
to
claim a declaration that the loan agreement and seven other
agreements between the first and second respondents were void and
of
no effect. At the hearing of the application the prayer for the
declaration was amended by the addition of the words ‘alternatively
voidable’ after the word ‘void’.
[4] On
the same day that the appellant amended its notice of motion to
introduce its prayer for the declaratory relief, three other
shareholders in the first respondent, Trinity Asset Management (Pty)
Ltd, Trinity Endowment Fund (Pty) Ltd and Eljay Investments
Incorporated, brought an urgent application against the respondents,
seeking,
inter
alia,
a
declaration that the loan agreement was void for vagueness and/or
impossibility of performance, alternatively that the suspensive
conditions to which it was subject had not been fulfilled. In what
follows I shall call the application brought by these shareholders
‘the Trinity application’.
[5]
The applications brought by the appellant and by the other three
shareholders were heard together in the court
a
quo
and
in this court they were argued on consecutive days.
[6] At
the start of the hearing in the court
a
quo
the
learned judge heard an application brought by the second respondent
for an order separating the question whether the appellant
had
locus
standi
to
raise certain issues from the other issues in the application. There
were five issues in respect of which the appellants’
locus
standi
was
challenged. They all related to the validity of the loan agreement
and the other agreements linked thereto. One of them, relating
to the
contention that the loan agreement had lapsed due to non-fulfilment
of suspensive agreements in it and another agreement
linked to it,
also arose in the Trinity application.
[7]
Blieden J granted the order for the separation of issues and after
hearing further argument he decided the issues in favour
of the
respondents. As he considered the issue which arose in both the
appellant’s application and the Trinity application
to be
dispositive of the latter, he dismissed it with costs. As far as
concerned the appellant’s application he declared
that the
appellant had no
locus
standi
to
raise the five issues set out in the order he made in terms of Rule
33(4) and he postponed what he called the main application
sine
die
in
order for the other issues to be adjudicated. He also ordered the
appellant to pay the first and second respondents’ costs
in
regard to the separation applications, including the costs of two
counsel. His judgment has been reported: see
Letseng
Diamonds Ltd v JCI and Others; Trinity Asset Management (Pty) Ltd and
Others v Investec Bank Ltd and Others
2007
(5) SA 564
(W).
[8] At
570C-E (para [7.14]) of his judgment Blieden J said:
‘
In short,
the present proceedings are concerned with the right of two
shareholders of JCI, being Letseng [the appellant in this
case] and
Trinity [for the purposes of his judgment he referred collectively to
the three applicants in the Trinity application
as ‘Trinity’:
there were thus in reality four shareholders altogether, not two], to
have a suite of agreements, including
the [loan agreement], to which
neither of them is a party, declared invalid one and a half years
after their implementation, apart
from the raising fee. The parties
to the agreements, JCI and Investec, have at all times regarded all
the agreements to be binding
on them.’
[9] In
the judgment I have prepared in the Trinity matter, which is being
delivered at the same time as this judgment, I consider
the question
as to whether the question arising for decision is quite as simple as
that and uphold the contention that the judge
mischaracterised the
question to be decided. I proceed to give my reasons for being of the
view that the Trinity applicants had
locus
standi
to
raise the separated issue and that their application was wrongly
dismissed on the ground of their alleged lack of
locus
standi.
For
those reasons, which apply with equal force in this appeal, I am
satisfied that this appeal must, like the appeal in the Trinity
matter, succeed.
[10]
The following order is made:
1. The appeal succeeds
with costs, including those occasioned by the employment of two
counsel.
2. The order of the court
below in so far as it relates to the appellant’s application in
that court is set aside and replaced
by an order in the following
terms:
‘
In the
Letseng application:
1. It is declared
that the applicant does have
locus
standi
to
raise the issues referred to in the Investec separation application
dated 20 April 2007 (as quoted in paragraph 9 of the judgment
in this
application).
2. The main
application is postponed
sine
die
in
order for the other issues stated therein to be adjudicated.
3. Investec is ordered to pay the
applicant’s costs in regard to the separation application, such
costs are to include the
costs of two counsel.’
………………
IG FARLAM
JUDGE
OF APPEAL
JAFTA
JA dissenting
[11] I have had the
opportunity of reading the judgment of my colleague Farlam JA. I am
unable to agree with the conclusion that
the appeal ought to succeed
and the reasons given therefor. In my view the appeal must be
dismissed on the basis that the appellant
– as a shareholder –
had no locus standi to raise any of the issues relevant to the
determination of the validity of
agreements between JCI Limited (JCI)
and Investec Bank Limited (Investec).
[12] During the period
between September 1997 and August 2005 JCI had experienced financial
difficulties. It was unable to pay its
creditors. It was facing
litigation against a number of creditors and had been served with a
writ of execution for the payment
of more than R60 million. As a
result it was on the verge of bankruptcy. Its directors had tried to
raise loans from financial
institutions in this country and abroad,
without success. Due to lack of credibility in the market place and
the negative reputation
JCI had, none of the financial institutions
was willing to lend it money. Eventually Investec agreed to lend it
an amount in excess
of R1.1 billion on condition that the loan would
be repaid with interest plus a ‘raising fee’ which
exceeded R400 million.
[13] On 19 August 2005
the Johannesburg Stock Exchange (the JSE) on which JCI was listed,
suspended its listing for failure to produce
audited financial
statements. The JSE’s Listing Requirements obliged listed
companies to obtain approval of their shareholders
before
implementing a certain category of transactions. In terms of these
requirements the companies were required to include,
as a condition
for implementing such transactions, prior approval of the
shareholders.
[14] To regulate the loan
between JCI and Investec, the parties signed a suite of agreements.
Some of those agreements fell within
the category for which approval
of shareholders was needed in terms of the Listing Requirements. As
JCI urgently required cash
to stave off liquidation, it requested the
JSE to exempt its transactions from shareholder approval. The JSE
permitted the parties
to implement the agreements subject to
ratification by JCI’s shareholders. The appellant is one such
shareholder.
[15] Investec advanced
the money JCI required and the latter’s financial fortunes
improved to the extent that it was able
to repay the entire loan with
interest. The raising fee had not become payable by September 2006
when the appellant launched an
urgent application to interdict a
general meeting of JCI’s shareholders. The meeting was called
specifically to consider
two resolutions in terms of which
shareholders were asked to ratify agreements referred to above. The
appellant also sought an
order interdicting JCI from paying the
raising fee. When the matter came before the court a quo, the
interdict was granted by consent.
[16] Further papers were
later filed and the appellant amended its relief and asked that, in
addition to the interdict, the relevant
agreements be declared
invalid. Since the interdict had already been granted, the
declaratory relief was the only aspect of the
appellant’s case
which required consideration by the court.
1
[17] Meanwhile, Investec
launched an interlocutory application in terms of which it challenged
the appellant’s locus standi
to seek the declaratory relief. It
listed the issues in relation to which it claimed that the appellant
had no locus standi. Those
issues are (para 9 of the court a quo’s
judgment):
‘
1.
That the question whether Letseng has locus standi to raise the
following issues be separated from and heard in advance of any
other
issue in the Letseng application:
1.1
That the JCI directors at all relevant times constituted a “rogue
board” or a “supine board”, which,
to the knowledge
of Investec was not capable of performing and did not perform its
fiduciary duties, hence the ILA [Investec Loan
Agreement] and
disposal agreement are void.
1.2
That the resolution of the JCI Board which was quorate on 23
August 2005 is invalid and in any event did not in its terms
authorise the signatories of the ILA and Disposal Agreement to sign
such agreements on behalf of JCI.
1.3
That the resolution of the JCI board which was quorate on
23 February 2006 is invalid.
1.4
That the ILA lapsed due to non-fulfilment of suspensive conditions in
the ILA and the disposal agreement.
1.5
That the implementation of the ILA would breach the provisions of the
Competition Act, 1988.
2.
That the question whether Trinity has locus standi to raise the issue
set out in 1.4 above be separated from and heard in advance
of any
other issue in the Trinity application.’
[18] By agreement between
the parties the court a quo was asked to determine only the question
of locus standi and to defer the
other issues for consideration at a
later date. Having reviewed the relationship between the company and
its shareholders, in the
context of contracts concluded by the
company with other parties, the court a quo held that, as a stranger
to the impugned agreements,
the appellant did not have locus standi
to seek the declaratory relief. In this regard the court a quo said:
‘
To
put it another way: a third party cannot interfere in the terms and
conditions contained in an agreement between two other parties.
It is
between them and them alone, and the terms of the agreement only
operate between them and no one else…. In the world
of company
law the above principle is sometimes described as the rule in
Foss
v Harbottle
[1843] EngR 478
;
(1843)
2 Hare 461
(67 ER 189)
when referring to the relationship between
shareholders and a company. This rule preventing strangers from
interfering in contracts
is fundamental to any rational system of
jurisprudence.
From
what has already been said, save for the specified and limited
exceptions mentioned above, a shareholder is a stranger to the
company in its dealings with third parties.
The
consequence of the rule is that an individual shareholder cannot
bring an action to complain of an irregularity (as distinct
from
illegality) in the conduct of the company’s internal affairs
provided that the irregularity is one which can be cured
by a vote of
the company in general meeting.’
2
[19] The issue in this
appeal is whether a shareholder, who has been invited to a general
meeting of a company for the purpose of
ratifying an agreement
entered into by the company and another party, is entitled to seek an
order declaring the concerned agreement
invalid. Being a stranger to
the agreement, as was observed by the court a quo, such shareholder
cannot base its right to seek
a declarator on the agreement itself.
[20] Counsel for the
appellant argued that a shareholder who has been invited to ratify an
agreement in a general meeting is entitled
not only to full
disclosure of the relevant facts, but also to accurate information
relating to the agreement to be ratified. Invoking
the JSE Listing
Requirements, counsel submitted that the duty to make full disclosure
is buttressed by the Listing Requirements
which stipulate that a
notice of a meeting must contain all information necessary to allow
the shareholders to make an informed
decision. The circular inviting
JCI shareholders to a meeting, argued counsel, omitted to mention
facts relating to the rogue board;
non-compliance with suspensive
conditions contained in the agreements in question; the inquoracy of
the board and its impact on
the suite of agreements and the
requirements of the Competition Act. Therefore the appellant was, he
concluded, entitled to enforce
compliance with the duty.
[21] On the assumption
that the omitted facts were established, there can be no doubt that
the above submissions are sound. A shareholder
whose right or
entitlement to full and accurate information is infringed, is
entitled to enforce compliance with the duty. But
this argument
cannot avail the appellant in circumstances of the present case
because the relief sought here is not enforcement
of compliance with
the breached duty. Instead the issue here is whether the appellant is
entitled to seek an order declaring the
impugned agreements to be
invalid, on the grounds mentioned in para [17] above. It would be
entitled to do so only if it had a
direct and substantial interest in
those agreements. But since it was not a party thereto and the
agreements were not concluded
for its benefit, it did not have such
interest. As a stranger to the agreements it could therefore not
impugn them.
3
[22] The fact that the
appellant was invited to ratify the concerned agreements does not
change its status in relation thereto.
When it came to those
agreements, the appellant was not a contracting party and
consequently it was a stranger, albeit with limited
rights concerning
full disclosure. These rights could, however, entitle the appellant
to an order instructing JCI directors to
comply with the requirement
of full disclosure by including the omitted information in the
circular. The breach of the duty to
make full and accurate disclosure
cannot found a claim for a declaration that the agreements are
invalid. We were not referred
to any authority that says it can nor
could I find one.
[23] The general rule is
that if two parties enter into an agreement and there has been
non-compliance with its terms, it is only
the contracting parties who
can challenge the validity of the agreement. In
Hillock
4
this court rejected
argument by a third party to the effect that a particular agreement
was invalid because of non-compliance with
a condition in another
agreement to which it was not a party. In that case Muller JA said:
‘
In
my judgment this argument has no merit. The object of clause 8 of the
lease was to render an assignment concluded by the lessee
(Hirba)
with a third party, without the prior written consent of the lessor,
not binding on the lessor. It is unnecessary to decide
whether, as
was contended before us, the provisions of clause 8 were inserted
also for the benefit of the lessee. For present purposes
I shall
assume, without deciding, that they were. What is clear, however, is
that those provisions, and indeed also provisions
of clause 31, were
intended to operate only as between the parties to the agreement,
namely, the lessor and lessee. A third party,
such as National
Exposition in the present case, cannot seek to rely on the provisions
in question, unless it has become a party
to the agreement, for
example by assignment.’
5
[24] Relying on
Claude
Neon Ltd v Germiston City Council
6
,
counsel for the appellant argued that courts in our law do permit
litigants to challenge the validity of contracts to which they
were
not parties. The reliance placed on
Claude
Neon
is
clearly misplaced. That case dealt with a different situation: the
application of administrative law to contracts based on
administrative
decisions such as an award of a tender. The primary
focus of the challenge in such cases is the validity of the tender
award which
constitutes administrative decision. Such decision, in
turn, is a precondition for the conclusion of contracts between the
state
and other parties. Once the tender is set aside, the foundation
of the contract is removed and the court granting the order setting
aside the tender may, if it is just and equitable to do so, cancel
the agreement concluded in consequence of the tender concerned.
In
this instance a challenge based on illegality or irregularity is
directed solely at the tender award and not the subsequent
contract.
[25] In
Claude
Neon
the
court was asked to review and set aside a tender and a contract
concluded pursuant to the tender concerned. The applicant challenged
the validity of the tender on the ground that it was unfairly awarded
following the wrongful exclusion of its proposal on the basis
that it
was lodged late. It contended that the city council had undertaken to
inform it about the tender and that it had a legitimate
expectation
to be advised of the closing date for lodging tenders. The city
council failed to advise it of the closing date and
as a result its
tender proposal was submitted after the deadline. Relying on s 24 of
the interim Constitution, the applicant argued
that its right to
procedurally fair administrative action, where its legitimate
expectations were affected, was infringed. Upholding
this argument
Zulman J said:
‘
As
a matter of law, the first respondent [the city council], having
created a “legitimate expectation” in favour of
the
applicant in accordance with s 24(b) of the Constitution to have
“procedurally fair administrative action”, the
first
respondent did not have the power to ignore the right given to the
applicant by the Constitution and then to award the tender
to the
second respondent as it did. Put differently, I believe that the
applicant is correct in its contention that, until such
time as the
applicant’s tender was duly and properly considered by the
first respondent, it had no right to enter into any
binding
contractual arrangements pursuant to the award of the tender with the
second respondent. In considering the tender submitted
to it by the
second respondent and in refusing to consider the tender of the
applicant on its merits, the first respondent exercised
a “purely
administrative function”. … The conduct of the first
respondent, which the applicant complains of
in this regard, amounted
to a failure of “administrative justice” within the
meaning of s 24 of the Constitution. Such
failure justifies this
Court in setting aside the contract entered into between the first
and second respondents. This is so even
although the second
respondent may be an innocent party in this regard’.
7
[26] The dictum above
makes it clear that Zulman J relied on the infringement of the right
to procedurally fair administrative action
to set aside the contract.
Since the tender award which formed the foundation underpinning the
contract was set aside, the learned
Judge held the view that the
contract itself ought to be set aside. This was done in order to
enable the city council to call for
fresh tenders and to enter into a
new contract with the successful tenderer, without any uncertainty
which could arise if the first
contract was left intact. This
provides no authority for the proposition that a stranger to a
contract can seek a declaration for
its invalidity. Nor does
Claude
Neon
and
similar cases confer legal standing on such strangers to challenge
the validity of a contract. The applicant’s legal standing
in
Claude
Neon
was
based on its right to procedurally fair administrative action and not
on the contract concluded pursuant to the tender award.
Without
challenging the tender award, the applicant was not entitled to the
relief it sought.
[27] In a further attempt
to find support for the proposition that a stranger can impugn the
validity of a contract, counsel for
the appellant invoked cases
dealing with contracts of suretyship. He argued that a surety who is
permitted to raise defences available
to the principal debtor is also
allowed to impugn the validity of the contract between the creditor
and the principal debtor even
though the surety was not a party to
such contract. There is no merit in this submission. Although the
surety’s liability
arises out of the suretyship agreement and
not the main agreement, to some extent the suretyship agreement
introduces the surety
as a debtor in relation to the main debt. The
surety becomes a co-principal debtor jointly liable with the
principal debtor for
the latter’s debt. The suretyship contract
is accessory to the main agreement.
8
[28] Counsel for the
appellant further argued that a stranger is permitted to seek an
order invalidating an employment contract
on the basis that it
violates a restraint of trade covenant. The reference to restraint of
trade contracts is not helpful. Ordinarily
in cases involving the
restraint of trade agreement, the covenantee seeks to enforce the
restraint against the covenantor. If enforced,
the restraint has the
effect of nullifying the subsequent agreement entered into by the
covenantor and another party. The convenantee’s
legal standing
is not based on the agreement between the covenantor and the other
party, but on the restraint of trade agreement
to which he or she was
a party.
[29] As regards the
alleged impropriety by the directors of JCI pertaining to the
conclusion of the impugned agreements, the court
below reasoned that
the company’s articles vested the management and control of the
business of the company in the directors
and such control included
the power to enter into the impugned agreements. Accordingly, the
court found, if the company’s
directors had conducted its
business improperly by entering into the impugned agreements, it was
the company itself, and not the
individual shareholders, which was
entitled to seek relief arising from the improper conduct of the
directors. If individual shareholders
were allowed, concluded the
court, to interfere and impugn contracts concluded by a company with
third parties, there would be
chaos.
[30] Counsel for the
appellant criticised the above reasoning. He submitted that a
shareholder may institute a personal action to
enforce its individual
right as a member of a company. I agree with this proposition. But
counsel went further to argue that the
rule that says the company
itself is the only person who can sue does not apply to the present
matter because the appellant was
suing as a shareholder to protect
its personal rights. Relying on
Petersen
and Another v Amalgamated Union of Building Trade Workers of SA
9
counsel submitted that
where a shareholder is seeking to prevent an
ultra
vires
transaction
or seeking to enforce its personal rights, the wrong committed is
against the shareholder itself and not the company.
Consequently the
rule in
Foss
v Harbottle
has
no application in such a case.
[31] I accept that where
a company enters into an agreement which is
ultra
vires
its
articles of association, a shareholder has a right to institute
proceedings in its own name. The conclusion of such agreement
violates the contractual relationship between the company and the
shareholder as evidenced by the articles of association.
10
I agree also that where
an individual right of a particular shareholder is breached by the
company in which it is a shareholder,
such shareholder has a right to
sue in its own name to protect its right. This was the position in
Petersen
.
In that case the applicants, members of the respondent trade union,
were expelled from the union. They brought an application
for their
reinstatement and an interdict against the union. Invoking the rule
in
Foss
v Harbottle
,
the union argued that the applicants could not seek the relief
claimed. Kannemeyer J held that the expulsion did not constitute
a
wrong committed against the union but was an act which violated the
applicants’ personal rights and as a result they were
entitled
to sue in their own names to protect those rights.
11
[32] In this case,
however, it was common cause that in entering into the impugned
agreements, the directors of JCI acted
intra
vires
.
For the declaratory relief, the appellant relied on the breach of the
duty to make full and accurate disclosure. I have already
found that
such breach cannot constitute a basis for the declarator sought.
[33] Regarding the claim
for a declaratory order, the court below held that the requirements
therefor were not established. It concluded
correctly in my view,
that the appellant had no substantial and direct interest in the
agreements in question and that a declaratory
order will not be
binding in the circumstances of this case. The court relied, among
others, on decisions of this court in
Ex
parte Nell
12
and
Cordiant Trading CC v
Daimler Chrysler Financial Services (Pty) Ltd
.
13
In
Cordiant
Trading
this
court said:
‘
Although
the existence of a dispute between the parties is not a prerequisite
for the exercise of the power conferred upon the High
Court by the
subsection, at least there must be interested parties on whom the
declaratory order would be binding.
’
[34] For these reasons I
would dismiss the appeal with costs, including costs of two counsel.
________________
C
N JAFTA
JUDGE
OF APPEAL
APPEARANCES:
FOR APPELLANT: M D Kuper
SC
A Cockrell
Instructed by
Tugendhaft, Wapnick
Banchetti & Partners, Johannesburg
Honey Attorneys,
Bloemfontein
FOR
FIRST AND THIRD
RESPONDENTS:
A L Williamson
Instructed by
Mervyn
Tabacks Inc, Johannesburg
McIntyre & Van Der
Post, Bloemfontein
FOR SECOND
RESPONDENT S A Cilliers
SC
A P Rubens SC
J Blou
A Rowan
Instructed by
Werksmans Inc,
Johannesburg Matsepe Inc, Bloemfontein
1
Letseng
Diamonds Ltd v JCI Ltd and Others; Trinity Asset Management (Pty)
Ltd and Others v Investec Bank Ltd
2007
(5) SA 564
(W) para 7 (at 569J-570A).
2
Above
n 1 paras 19-21.
3
Hillock
and Another v Hilsage Investments (Pty) Ltd
1975
(1) SA 508
(A) and
Absa Bank Bpk v
C L von Abo Farms BK
1999
(3) SA 262
(O).
4
Above
n 3.
5
Hillock
above n 3 at 515 A-E
.
6
1995
(3) 710 (W). See also
Hencor SA Ltd v
Transitional Council for Rustenburg and Environs
1998
(2) SA 1052
(T).
7
Ibid
at 720H-721B.
8
See
Kilroe Daley v Barclays National Bank
Ltd
[1984] ZASCA 90
;
1984 (4) SA 609
(A) at 623 and the
authorities there cited.
9
1973
(2) 140 (E).
10
See
Gohlke & Schneider v Westies
Minerale (Edms) Bpk and Another
1970
(2) SA 685
(A) at 692.
11
Petersen
above n 4 at pp 144-5.
12
1963
(1) SA 754
(A).
13
2005
(6) A 205 (SCA).