About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 167
|
|
Mahem Verhurings CC v Firstrand Bank Ltd (91998/2015) [2017] ZAGPPHC 167 (8 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 91998/2015
DATE:
8/2/2017
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MAHEM
VERHURINGS
CC
Applicant
And
FIRSTRAND
BANK
LTD
Respondent
JUDGMENT
DE
VILLIERS, AJ:
Introduction
1. This is an application for leave to
appeal against my order for the liquidation of the applicant issued
on 15 December 2016.
In order to avoid confusion, I refer herein to
the respondent, the applicant in the main application, as "
the
bank
" and to the applicant, the respondent in the main
application, as "
the CC
".
2. The CC contends that I ought to
have dismissed the original application. It does not contend that I
erred in not referring the
original application for oral evidence (in
fact it was argued that I was precluded from doing so as neither
party requested a referral)
or that I ought to have granted a
provisional liquidation order as opposed to a final one.
The
issues on appeal
3. The notice of application for leave
to appeal relies on the following grounds as the basis for seeking
leave to appeal, as I
understand it. The argument did not follow this
order, and where applicable I reflect it too:
3.1.
One, in various paragraphs
spread throughout the notice, the CC avers that the bank in law was
not entitled to rely on the statutory
demand in terms of section 69
of the
Close Corporations
Act,
69 of 1984
("the
CC Act")
[1]
as the basis for deemed inability to pay debts and ultimately for the
liquidation of the CC. According to this argument, the bank
had to
prove in its founding papers that the CC was commercially insolvent
to rely on the statutory demand, did not do so and hence
the bank in
law was not entitled to rely on a statutory demand as the basis for
the liquidation application.
[2]
The CC alleges in the alternative that the statutory demand and the
liquidation application constituted legal action to collect
outstanding debt in conflict with an agreement. In argument, it
became clear that-
3.1.1.
Despite disavowing reliance on
HBT Construction and Plant
Hire
CC v
Uniplant
Hire CC
,
[3]
in fact the CC's argument in essence is still based on Para 13 of
that judgment.
[4]
There is one difference, it appears to me that the argument was that
the CC did not seek to argue (as opposed to its notice of
application
for leave to appeal)
[5]
that the bank had to prove in its founding papers that the CC was
commercially insolvent, but instead that this alleged “
jurisdictional
fact”
simply had to
be shown on the papers (founding, answering, and replying
affidavits). I make no finding that this about turn is permissible
as
it to my mind would not have changed the outcome of the application.
It was common cause in argument that the
HBT
Construction
-decision has
been overruled
by Boschpoort
Ondernemings (Pty) Ltd v ABSA Bank Ltd
.
[6]
The cases referred to in the main judgment where later judges
differed from the findings in
HBT
Construction
-case (and at
least one more) for this reason do not need to be addressed. It
appears that it was for this reason that I was not
referred to those
cases in argument when the main application was argued. I would have
welcomed the references in the light of
the unnecessary reference to
HBT Construction-case, but I accept that there was no intention to
mislead;
3.1.2.
The CC also argued that I erred
in rejecting its reliance on the agreement referred (which I address
below). The CC relies as the
principle basis of its case of the legal
position on its interpretation of
Desert
Star Trading 145 (Pty) Ltd and Another v No 11 Flamboyant Edleen CC
and Another
,
[7]
which according to it both extended the
Badenhorst
-rule,
[8]
and obliged me to apply the extended
Badenhorst
-rule
to the its defence based on the agreement;
3.2.
Two, the notice reflected an
argument that it was not proven that the CC was unable to pay its
debts in the founding affidavit.
[9]
Apparently linked to this argument is that I erred in rejecting
purported expert evidence that the assets of the CC exceeded the
bank's claim,
[10]
and erred in relying on evidence in reply.
[11]
In argument, it became clear that-
3.2.1.
The CC does not seek to argue
that I in law was obliged to ignore new averments in reply, but it
seems to be common cause that I
had a discretion to accept new
evidence in reply in appropriate circumstances. I assume that the
argument was that this would be
the case where evidence is relevant
and came to the bank's knowledge after it deposed to the founding
affidavit, as I had found
in the main judgment. My finding has not
been questioned. I stated in the main judgment that the submission
that I had to ignore
new matter in reply was wrong in law and could
even be misleading. I must spell out that I do not believe that there
was an intention
to mislead when the submission was made. I did
convey this to counsel during the argument of this application. I,
myself, made
errors in the main judgment.
[12]
In hindsight, I should have toned down my criticism. The task of an
advocate is hard enough not to be exposed to judicial criticism
expressed too easily;
3.2.2. The CC is of the
view that I was compelled to have accepted the answering affidavits
in the liquidation proceedings
brought by Beaumont Assist (Pty) Ltd
and handed up during argument. The main argument was that I ought to
take cognisance of documents
handed up as they were accessible to the
public (were matters of public record) in order to give effect to
audi alteram partem;
3.3.
Three, and as foreshadowed
above, the notice reflected an argument that I erred in not applying
the
Badenhorst-rule
to
the defence that the CC raised, namely that the bank was precluded by
an oral agreement (the terms reduced to writing) to have
brought the
application for liquidation as it constitutes legal action to collect
outstanding debt.
[13]
In fact, it is argued, I should have found that the application was
brought
mala fide.
[14]
Linked to this argument is that I erred in not applying the
ratio
decidendi
in
Desert
Star Trading 145 (Pty) Ltd and Another v No 11 Flamboyant Edleen CC
and Another
,
[15]
and dicta in
Firstrand Bank
Limited v Nomic 153
(Pty)
Limited
,
[16]
a judgment which I had pointed out in the main judgment.
[17]
Linked to this ground is that I erred in finding in motion
proceedings that the defence that the CC raised, failed.
[18]
In argument, it became clear that-
3.3.1.
In argument the first point
raised by the CC was that I erred in interpreting the agreement as
the outcome of my finding was in
conflict with the stated purpose of
the agreement even if I had to apply
Plascon
Evans
principles;
[19]
3.4.
Four, the notice reflected that
I erred in not dismissing the application based on repudiation, the
exceptio non adimpleti
contractus
and
non-compliance with the undertaking by the bank and/or the
repudiation of such an undertaking by the bank.
[20]
What I ought to have found with regard to these issues has not been
stipulated in the notice. These matters did not seem to me
to be
determinative of the matter and received little attention at the
hearing. I do not address them further herein. I am unable
to see how
the obligation to make payment in terms of a written agreement could
be reciprocal to any obligation under the oral
agreement relied upon,
or how any alleged breach of that agreement could constitute a reason
for non-payment under the underlying
written agreement.
4. I was not referred during argument
to authority to contradict the findings that I have made.
The
test on seeking leave to appeal
5.
The test that I have to apply
in considering an application for leave to appeal is set out in
section 17(1) of the
Superior
Courts Act
[21]
(underlining added):
"Leave to appeal mav onlv be
given where the judge or judges concerned
are of the opinion
that-
(a)
(i) the appeal
would have
a
reasonable
prospect of success
: or
(ii)
there is some other
compelling reason
why the appeal should be heard, including
conflicting judgments on the matter under consideration:
(b)
..."
6. The CC stated that it relied on
both grounds.
7.
With regard to the first
ground, Bertelsman J held in
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
[22]
that the new act has raised the bar,
there
now must be a measure of certainty
that there is a reasonable prospect of success. This approach has
been held to be correct in this division in
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance, In Re: Democratic Alliance v Acting
National Director of Public
Prosecutions and Others
,
[23]
a judgment by Ledwaba DJP, Pretorius J and Mothle J concurring in
Para 25.
[24]
I am bound by this decision and I agree with it.
8. With regard to the second test, I
must find that
"there is some other compelling reason why the
appeal should be heard".
I was not referred to any authority
to assist me with the interpretation of the second test, and I could
find none.
9.
In essence the CC contends that
I ought to grant leave to appeal as there is a conflicting judgment
in another division with regard
to the
Badenhorst
rule
as formulated in this division,
[25]
namely the
Firstrand Bank
Limited v Nomic 153 (Pty) Limited
to
which I have referred the parties in the main judgment, but did not
follow.
10. It seems to me, that I am not
obliged by statutory law to give leave to appeal merely because there
is such a judgment. The
law is not that an applicant is entitled to
leave to appeal simply because the presiding judge differed from
another decision.
Had this been case, it would have been stated as a
separate ground for the granting leave to appeal. Something more is
required
of me before I can find that “
there is some other
compelling reason why the appeal should be heard”.
It seems
to me that the legislation merely gives as an example for a finding
by a judge of a compelling reason to grant leave to
appeal
“
conflicting judgments on the matter under consideration”.
This is then an example as a factor upon which I could form an
opinion that “
there is some other compelling reason why the
appeal should be heard”.
11.
I find it difficult to
conceptualise a circumstance where I am convinced that there are no
prospects of success on appeal (the first
ground) and still find that
I must give leave to appeal simply because I have differed from
another case in my reasoning. It seems
to me, that I must still
consider the prospects of success. Indeed, this was what was held in
Minister of Justice and
Constitutional Development and Others v Southern Africa Litigation
Centre and Others
[26]
at Para 24:
"That is not to
say
that
merely because the High Court determines an issue of public
importance it must grant leave to appeal. The merits of the appeal
remain vitally important and will often be decisive.
..."
12. I am bound by this decision and I
agree with it.
13. In this case, the case that I
differed from is in another division, constituted a summary of the
law that has not been reasoned
(and in my view incorrectly summarised
the law), has not been followed, and seemingly does not cause any
confusion in this division
or anywhere else.
14.
Even if I were wrong in my
reasoning, the flexibility characteristic of the
Badenhorst
-rule
would have meant that I was not obliged to have applied it. That
characteristic stands central in this case. The court in
the
Kalil
case
[27]
did not apply the
Badenhorst
-rule
to determine matter. It determined the matter, by finding that the
factual disputes, including about the
locus
standi
of the applicant as
creditor, ought to be dealt with by
viva
voce
evidence. In fact, the
Supreme Court of Appeal has found in
Louw
v W P (Kooperatief) Bpk
[28]
at 431F to G that the
Badenhorst
-rule
should not be applied to a dispute where the defence against
sequestration was based upon an interpretation of mortgage bonds
and
articles of association, even if that dispute was about the existence
of the debt. I referred in the main judgment to
Total
Auctioneering Services and Sales CC t/a Consolidated Auctioneers v
Norfolk Freightways CC
,
[29]
a judgment by Willis J, Horn J and Bashall AJ concurring. In that
case the court did not apply the
Badenhorst
-rule
in considering the granting a provisional order. The court expressly
rejected in Para 15 the argument that it was obliged
to refuse the
application as required by the
Badenhorst
-rule.
I am bound by this reasoning, and not by the reasoning in
Firstrand
Bank Limited v Nomic 153 (Pty) Limited.
15. As far as I can determine, there
is certainty, predictability, and uniformity in this division in the
application of the
Badenhorst
-rule and the
Plascon Evans
principles. The counsel in this matter did not refer me to any
comparable factual case. I could find none. In my view, that makes
the decision to grant leave to appeal for compelling reasons even
harder to make.
16.
The
Badenhorst
-rule
has served before the Supreme Court of Appeal at least four times in
the past.
[30]
This too makes a referral on compelling grounds more difficult. In
fact, in the last decision by the Supreme Court of Appeal referred
to
in the previous endnote,
Freshvest
Investments (Pty) Ltd v Marabeng (Pty) Ltd,
the
whole focus still was on a debt disputed, not on any other factual
disputes. This too me seems the focus in
Kalil
v Decotex (Pty) Ltd and Another
,
[31]
especially at 980C:
"... In regard to locus standi
as a creditor, it has been held, following certain English authority,
that an application for
liquidation should not be resorted to in
order to enforce a claim which is bona fide disputed by the company.
Consequently, where
the respondent shows on a balance of probability
that its indebtedness to the applicant is disputed on bona fide and
reasonable
grounds, the Court will refuse a winding-up order. The
onus on the respondent is not to show that it is not indebted to the
applicant:
it is merely to show that the indebtedness is disputed on
bona fide and reasonable grounds. ..."
17.
Taking a step back, it was
common cause the bank was a creditor. The only issue was if the bank
was entitled to seek liquidation
when the CC stopped making payment
of instalments due in terms of the loan in issue. That defence is
based on an oral agreement,
with the material terms reduced to
writing. That, I have found, is a dispute to which the
Badenhorst
-rule
does not apply. In this division, that is a question to be resolved
through
Plascon Evans
principles
[32]
where final relief is claimed. As I have stated, even if were wrong
on the on the applicability of the rule, the flexibility of
the
Badenhorst
-rule
would have meant that I was not obliged to have applied it.
18. Leaving aside the question if I am
obliged by statutory law to give leave to appeal as a result of the
mere existence of a conflicting
judgment, it was argued on behalf of
the CC that I erred in law in applying the
stare decisis
principle. The argument was that I was bound by
Firstrand Bank
Limited v Nomic 153 (Pty) Limited
(and by implication not by the
Badenhorst
decision itself) as the Western Cape case was a
decision by three judges.
19. In as far as that argument
purports to reflect that the
Badenhorst
-rule must be applied
in an inflexible manner, it is bad in law, with respect. Still, if
the CC's argument were correct, I would
have been obliged to give
leave to appeal as there would have been a conflicting judgment that
bound me, but which I had failed
to follow.
20.
The law is clear, judges have
to apply the
stare decisis
principles. Not only am I
bound by this principle, see
Camps
Bay Ratepayers' and Residents' Association and Another v Harrison and
Another
[33]
at Para 28 to 30, but I support it fully. Anyone who ever has had to
advise a client whether or not to proceed with litigation
using
hard-earned funds, would know the value of predictability. It indeed
is a manifestation of the Rule of Law that judges are
not free to
decide matters as if they are not bound by the
stare
decisis
principles.
21. The CC quoted no authority was
quoted for the submission that I erred in applying the
stare
decisis
principles. The submission is wrong in law in my view,
and I have dealt with the law in the main judgment. A single judge in
the
North Gauteng Division must follow the Constitutional Court, the
Supreme Court of Appeal, a decision of a larger court in the North
Gauteng Division, and a decision of a larger court in the South
Gauteng Division (a division having co-ordinate jurisdiction),
but is
not bound by a decision of a larger court in another division.
Obviously, one will not easily differ from a larger court
out of
respect and as more judges ruled on the matter. But, when faced with
conflicting decisions in this division, one follows
the local
division. A single judge in the North Gauteng Division must follow a
single judge in the North Gauteng Division and South
Gauteng Division
unless that judgment is wrong. In addition of course would be
considerations such as if the other decision had
given a judgment in
error by for example overlooking legislation or another binding
decision.
22. In addition in considering
compelling circumstances, I believe that I must consider the reality
of life that litigants are not
involved in litigation for issues of
interest of academic purity. They spend money to seek finality in
their disputes, based on
the facts of their cases. They have an
interest in finalising their disputes, and not to incur additional
costs on appeal.
23. In short, in my view the decision
to grant leave to appeal or not, in this case has to be determined
primarily by considering
if there is a measure of certainty that
there is a reasonable prospect of success on appeal.
24. I do not again address the
Badenhorst
-rule. In my view any appeal based on my failure to
apply it, or based on
stare decisis
for not
following
Firstrand Bank Limited v Nomic 153 (Pty) Limited
, has no
reasonable prospect of success on appeal and I can find no compelling
reason to grant leave to appeal on these two grounds.
25. I deal next with the four groups
of reasons why the CC avers I erred and ought to have dismissed the
application as identified
above.
One,
the statutory demand and new Companies Act argument
26.
I have rejected the argument
about an initial onus as incorrect in law in my main judgment.
[34]
27.
In my view, an applicant can
bring a case based on the statutory demand [section 69(1)(a) of the
CC Act] without proving at the
same time that the respondent is
commercially insolvent [section 69(1)(c) of the CC Act] and use
simply statutory demand as the
basis for liquidation.
[35]
This much is clear from those sections and the "01" that
separates the sub-sections. As argued by the bank, the CC's
argument
would render section 69(1)(a) of the
CC
Act
superfluous as the
demand would play no role if the applicant in any event has to prove
commercially insolvency. Commercial insolvency
is assumed by the
reaction to the statutory demand (and from the other facts of the
matter). The same applies if one has regard
to section 345 of the
Companies Act
61
of 1973
("the Old
Companies Act")
with
regard to the statutory demand and commercial insolvency.
28. As I read the
Desert Star
-case
it does not require the formalistic approach contended for by the CC.
The concept of
formulae
died with the Roman empire.
29. Even if I were wrong on the law,
then in any event on the papers read as a whole, there is ample proof
of commercial insolvency.
I do not repeat those facts about
instalments not paid, the reasons for the non-payments, the demands,
the lack of reaction, the
stopping of all payments, the additional
finance sought, the terms of that finance, and the like. It is now
conceded that I should
consider the papers as a whole as opposed to
an in limine onus to be satisfied in the founding papers.
30. In my view, with respect, the
statutory demand and new
Companies Act
argument has no
prospects of success on appeal; or put differently, there is not a
measure of certainty that there is a reasonable
prospect of success.
31. It has not been alleged that I had
exercised my limited remaining discretion incorrectly.
32. In reaction to the demand, the CC
did not produce proof of its solvency and did not argue that the
unpaid payments were not
due. Instead it argued that the bank was
precluded by an oral agreement to have made the demand (as it
allegedly constituted legal
action to collect outstanding debt) or to
have brought the application for liquidation (for the same reason).
Should the CC's defence
based on the oral agreement fail, as I have
found it had to and did, the bank is entitled to a winding up order
on basis of the
statutory demand.
Two,
was it proven that the CC was unable to pay its debts?
33. Due to the statutory demand ground
for liquidation, this ground is in reality an alternative ground for
the liquidation of the
CC. Having refused leave to appeal on the
first ground, these arguments are superfluous. However, I address
them in case it were
to be found that I erred in in main and in my
alternate findings on the first ground of appeal.
34.
The notice of application for
leave to appeal contains a number of references to the founding
affidavit as if it were to be considered
in isolation. For sake of
completeness, I reiterate that such an approach is wrong in law, with
respect. The only time in an opposed
application where only the facts
mentioned in the founding affidavit stand to be considered, is when a
respondent raises an
in
limine
attack that the
application stands to be dismissed if one has regard to the founding
affidavit only, assuming that those facts are
correct. See
Valentino
Globe BV v Phillips and Another
.
[36]
Such a defence was not raised this matter. Once an applicant passes
that
in limine
test,
I have to have regard to all facts before me, whether they appear in
the founding, answering or replying affidavits, subject
off course to
inter alia
the
Plascon Evans
-test.
[37]
35. Reverting to the argument
presented, I understood the original argument by the CC that I in law
was obliged in law to ignore
new matter in the replying affidavit.
There is no doubt that it would be bad in law. It now seems to be
common cause that I was
entitled to rely on the new matter in reply,
matter that came to the bank's knowledge after the founding affidavit
was deposed
to, and that I was entitled to rely on the CC's decision
not to answer the new matter. This is in my view the correct approach
in law.
36. It seems that the remaining
argument is that I was obliged to have accepted the answering
affidavits in the liquidation proceedings
brought by Beaumont Assist
(Pty) Ltd and handed up during argument (and it is suggested that
those affidavits would have disproved
reliance by the bank on the
later sequestration application).
37.
I remain unpersuaded by this
argument. The CC had the election to seek to strike out admissible
new matter in reply,
[38]
or it could have sought leave to answer admissible new matter in
reply.
[39]
Instead, it argued that new matter could be ignored (I have addressed
this earlier herein) and in the alternative it sought to
hand up the
answering affidavit in the liquidation proceedings brought by
Beaumont Assist (Pty) Ltd.
38.
I have no doubt that I was
correct in refusing the papers so handed up. The only permissible way
was for the respondent to deliver
a fourth affidavit, with the leave
of the court. That leave ought to have been a formality in a similar
case. The CC then had to
attach to the fourth affidavit the answering
affidavit in the liquidation proceedings brought by Beaumont Assist
(Pty) Ltd and
it ought to have referred the court and the bank to any
relevant portions thereof. This is the only way in which
audi
alteram partem
could be
applied, and the only approach that would have been fair to the bank.
The bank is entitled to be advised before the hearing
of the case it
would encounter, and the court is obliged to prepare for that hearing
having regard to all the affidavits to consider.
Our law is clear
about the function of affidavits, and how material facts are to be
placed before a court. See
Swissborough
Diamond Mines (Pty) Ltd and
Others v Government of the Republic Of South Africa and Others
.
[40]
The principle was stated by Joffe J in the aforesaid case at 324F:
"Regard being had to the
function of affidavits, it is not open to an applicant or
a
respondent to merely annexe to its affidavit documentation and to
request the Court to have regard to it. What is required is the
identification of the portions thereof on which reliance is placed
and an indication of the
case
which is sought to be made out
on the strength thereof. If this were not
so
the essence of
our established practice would be destroyed. A party would not know
what case must be met.
..."
39. In my view, with respect, the
argument about handing up affidavits simply because they are
accessible to the public, has no
prospects of success on appeal; or
put differently, there is not a measure of certainty that there is a
reasonable prospect of
success.
40. I have concluded that the on the
papers read as a whole, there is ample proof of commercial
insolvency. Also on this ground,
should the CC's defence based on the
oral agreement fail, the bank is entitled to a winding up order.
41. That leaves another argument
raised in the notice of application for leave to appeal, the
purported expert evidence that the
CC has assets in excess of the
bank's claim. In my view, I rejected the purported expert evidence on
unassailable law and no case
law to the contrary has been brought to
my attention. I point out that CC made no attempt to prove solvency,
actual or commercial.
In my view, this argument has no prospects of
success on appeal; or put differently, there is not a measure of
certainty that there
is a reasonable prospect of success.
42. I deal next with the defence
raised by the CC about an agreement.
Three,
error in interpretation
43. As reflected earlier, in my view
this matter is one where I have to apply the Plascon Evans principles
in considering the defence
of an agreement precluding liquidation
proceedings. It appeared at the hearing for leave to appeal that the
CC's real argument
was that I erred in interpreting the agreement as
the outcome of my finding was in conflict with the stated purpose of
the agreement.
44. The CC relies upon an oral
agreement, the material part had been reduced to writing (emphasis
added):
"That pending the
finalisation of the application for business rescue and the counter
application for liquidation under
case
number 1350612015:
1.1. That
Firstrand Bank
Ltd
("the bank'?, the intervening creditor under
case
number 1350612015 and Wesbank Ltd ("Wesbank'J, shall refrain
from taking any form of legal action to collect outstanding debt
against
Messrs
Lambertus Nico/aas De Beer (Snr), Gert Jacobus
De Beer and Lambertus Nicolaas De Beer (Jnr), in their personal
capacities
as
sureties and co principal debtors or
otherwise, or any of the entities in which they are involved,
directly or indirectly including,
but not limited to, Tambotie
Boerdery Trust and Sering Boerdery
CC
or any of the sureties
liable to the Bank for outstanding debt."
45. The CC's pleaded defence was
(underlining added, and averments about ma/a
fides
left out
for now):
"
The application
under the abovementioned
case
number
is legal action
that is covered by the undertaking
" ;
"In the circumstances
the
application
under the abovementioned
case
number is
not
legally competent
,
constitutes
ma/a
fide conduct on the part of the Respondent
and should be dismissed with costs on
a
scale
as
between
attorney-and-own client' ;
46. I had to interpret this agreement.
47. Our law has undergone some changes
in this regard. I reflect the authority on the main principles
briefly.
48.
In
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
[41]
the court deal with a case where the parties had presented expert and
factual evidence on the interpretation of an agreement (underlining
added, and footnotes omitted):
"[38] Much of the evidence
dealt with the interpretation of the verification contract. Indeed,
each party called an expert
on the issue and they testified for about
14 days on the interpretation of the contract. The factual witnesses,
too, spent most
of their time dealing with interpretation issues. The
parties were able to create a record consisting of 6600 pages of
evidence
and exhibits. It is difficult to understand why the trial
judge permitted the evidence or the cross examination or
overruled
the objection to the leading of some of the evidence.
Obviously, courts are fully justified in ignoring provisionally
objections
to evidence if those objections interfere with the flow of
the case. It is different if a substantive objection is raised which
could affect the scope of the evidence that will follow. In such a
case a court should decide the issue and not postpone it. It
is
accordingly necessary to say something about the role of evidence
and, more particularly, expert evidence in matters concerning
interpretation.
[39]
First, the
integration (or parol evidence) rule remains part of our law
.
However, it is frequently ignored by practitioners and seldom
enforced by trial courts.
If a document was intended to
provide a complete memorial of a jural act, extrinsic evidence may
not contradict, add to or modify
its meaning
(
Johnson
v Leal
1980 (3) SA 927
(A) at 9438).
Second,
interpretation is a matter of law and not of fact and, accordingly,
interpretation is a matter for the court and not for
witnesses
(or, as said in common-law jurisprudence, it is not a jury question:
Hodge M Malek (ed) Phipson on Evidence
(16 ed
2005) paras 33 - 64). Third, the rules about admissibility of
evidence in this regard do not depend on the nature of the
document,
whether statute, contract or patent (
Johnson & Johnson
(Pty) Ltd v Kimberly-Clark Corporation and Kimberly-Clark of South
Africa (Pty) Ltd
1985 BP 126 (A) ([1985] ZASCA 132 (at
www.saflii.org.za)).
Fourth, to the extent that evidence
may be admissible to contextualise the document (since 'context is
everything') to establish
its factual matrix or purpose or for
purposes of identification, ‘one must use it as conservatively
as possible'
(
Delmas Milling Co Ltd v Du Plessis
1955 (3) SA 447
(A) at 4558 - C). The time has arrived for us to
accept that there is no merit in trying to distinguish between
'background circumstances'
and 'surrounding circumstances'. The
distinction is artificial and, in addition, both terms are vague and
confusing. Consequently,
everything tends to be admitted.
The
terms 'context' or 'factual matrix' ought to suffice
. (
See
Van der Westhuizen v Arnold
2002 (6) SA 453
(SCA) ([2002]
4 All SA 331)
paras 22 and 23, and Masstores (Pty) Ltd v Murray &
Roberts Construction (Pty) Ltd and Another
[2008] ZASCA 94
;
2008 (6) SA 654
(SCA) para
7.)
[40] Trollip JA
in
Gentiruco AG v Firestone (SA) (Pty) Ltd
1972 (1) SA 589
(A) at 617F - 618C dealt with the admissibility of expert evidence in
interpreting a document (a patent specification in that case)
and
quoted with approval from a speech of Lord Tomlin in
British
Celanese Ltd v Courtaulds Ltd
(1935) 52 RPC 171
(HL):
'The area of the territory in which
in cases of this kind an expert witness may legitimately move is not
doubtful. . . . He is entitled
to explain the meaning of any
technical terms used in the art. . . . He is not entitled to say nor
is counsel entitled to ask him
what the [document] means, nor does
the question become any more admissible if it takes the form of
asking him what it means to
him as an [expert].'
Lord Tomlin spelt out the
disadvantages of allowing expert evidence on interpretation:
'In the first place time is wasted
and money spent on what is not legitimate. In the second place there
accumulates a mass of material
which far from assisting the Judge
renders his task the more difficult, because he has to sift the grain
from an unnecessary amount
of chaff. In my opinion the trial Courts
should make strenuous efforts to put a check upon an undesirable and
growing practice.'
That was in 1935, but the chaff is
still heaping up, the undesirable practice keeps growing and courts
make no effort to curtail
it. An expert may be asked relevant
questions based on assumptions or hypotheses put by counsel as to the
meaning of a document
. The witness may not be asked what
the document means to him or her. The witness (expert or otherwise)
may also not be cross-examined
on the meaning of the document or the
validity of the hypothesis about its meaning
. Dealing with
an argument that a particular construction of a document did not
conform to the evidence, Aldous LJ quite rightly
responded with, 'So
what?' (
Scanvaegt International AIS v Pelcombe Ltd
1998 EWCA Civ 436.)
All this was sadly and at some cost ignored by
all."
49.
The
Securefin
-case
has been referred to many times by the Supreme Court of appeal. I
refer to two of those cases below, but point out that those
cases and
others did not detract from the law as set out in paragraph 39 above.
This was held in
B Braun
Medical (Pty) Ltd v Ambasaam CC
[42]
(underlining added, and footnotes omitted):
"[14) A great deal of
inadmissible evidence was led before the court a quo concerning the
parties' intention in concluding,
and their interpretation of the
terms of the contract of carriage. As pointed out by this court:
'First, the integration (or parol
evidence) rule remains part of our law. However, it is frequently
ignored by practitioners and
seldom enforced by trial courts. If a
document was intended to provide a complete memorial of a jural act,
extrinsic evidence may
not contradict, add to or modify its meaning
(Johnson v Leal
1980 (3) SA 927
(A) at 9438).
Second, interpretation is a matter of law and not of fact and,
accordingly, interpretation is a matter for the court
and not for
witnesses (or, as said in common-law jurisprudence, it is not a jury
question:
Hodge M Malek (ed) Phipson on Evidence
(16
ed 2005) paras 33 - 64). Third, the rules about admissibility of
evidence in this regard do not depend on the nature of the
document,
whether statute, contract or patent
(Johnson & Johnson
(Pty) Ltd v Kimberly-Clark Corporation and Kimberly-Clark of South
Africa (Pty) Ltd
1985 BP 126 (A) ([1985] ZASCA 132 (at
www.saflii.org.za)). Fourth, to the extent that evidence may be
admissible to contextualise
the document (since context is
everything) to establish its factual matrix or purpose or for
purposes of identification, one must
use it as conservatively as
possible
(Delmas Milling Co Ltd v Du Plessis
1955
(3) SA 447
(A) at 4558 - C). The time has arrived for us to accept
that there is no merit in trying to distinguish between background
circumstances
and surrounding circumstances. The distinction is
artificial and, in addition, both terms are vague and confusing.
Consequently,
everything tends to be admitted. The terms context or
factual matrix ought to suffice. (See
Van der Westhuizen v
Arnold
2002 (6) SA 453
(SCA) ([2002]
4 All SA 331)
paras
22 and 23, and
Masstores (Pty) Ltd v Murray
&
Roberts Construction (Pty) Ltd and Another
[2008] ZASCA 94
;
2008
(6) SA 654
(SCA) para 7.)'
[15)
It is therefore
clear that 'interpretation is a matter of law and not of fact and,
accordingly, interpretation is a matter for the
court and not for
witnesses'
. In addition –
“
to the extent that evidence
may be admissible to contextualise the document (since context is
everything) to establish its factual
matrix or purpose or for
purposes of identification,
one must use it as
conservatively as possible'
.
I do not understand anything
stated in later decisions of this court to constitute
a
departure from those principles.
”
50.
One of the cases that
referred to the Securefin-case, but in terms of the B Braun
Medical
-case did not
detract from it, is
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[43]
The court held (underlining added, and footnotes omitted):
"[18] Over the last century
there have been significant developments in the law relating to the
interpretation of documents,
both in this country and in others that
follow similar rules to our own. It is unnecessary to add unduly to
the burden of annotations
by trawling through the case law on the
construction of documents in order to trace those developments. The
relevant authorities
are collected and summarised in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School
. The present state of the law can be expressed as
follows:
Interpretation is the process of attributing
meaning to the words used in a document
, be it
legislation, some other statutory instrument, or contract,
having
regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole
and the
circumstances attendant upon its coming into existence
.
Whatever the nature of the document
, consideration must be
given to the language used in the light of the ordinary rules of
grammar and syntax: the context in which
the provision appears; the
apparent purpose to which it is directed and the material known to
those responsible for its production.
Where more than one meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective,
not subjective. A sensible meaning
i s to be preferred to one that leads to insensible or unbusinesslike
results or undermines
the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard
as reasonable, sensible or businesslike for the
words actually used
. To do so in regard to a statute or
statutory instrument is to cross the divide between interpretation
and legislation;
in a contractual context it is to make a
contract for the parties other than the one they in fact made. The
'inevitable point
of departure is the language of the provision
itself , read in context and having regard to the purpose of the
provision and the
background to the preparation and production of the
document
.
[19] All this is consistent with
the 'emerging trend in statutory construction'. It clearly adopts as
the proper approach to the
interpretation of documents the second of
the two possible approaches mentioned by Schreiner JA in
Jaga
v Donges NO and Another; Shana v Donges NO and Another
,
namely that from the outset one considers the context and the
language together, with neither predominating over the other. This
is
the approach that courts in South Africa should now follow, without
the need to cite authorities from an earlier era that are
not
necessarily consistent and frequently reflect an approach to
interpretation that is no longer appropriate. The path
that Schreiner JA pointed to is now received wisdom elsewhere. Thus
Sir Anthony
Mason CJ said:
'Problems of legal interpretation
are not solved satisfactorily by ritual incantations which emphasise
the clarity of meaning which
words have when viewed in isolation,
divorced from their context. The modem approach to interpretation
insists that context be considered in the first instance,
especially in the case of general words, and not merely at some later
stage when ambiguity might be thought to arise
.'
More recently, Lord Clarke SCJ said
he exercise of construction is essentially one unitary exercise'.
[20]
Unlike the trial
judge I have deliberately avoided using the conventional description
of this process as
one of
ascertaining the intention of the legislature
or the draftsman, nor would I use its
counterpart in a contractual
setting, 'the intention of the contracting parties', because these
expressions are misnomers, insofar
as they convey or are understood
to convey that interpretation involves an enquiry into the mind
of the legislature or the
contracting parties. The reason is that the
enquiry is restricted to ascertaining the meaning of the language of
the provision
itself
. Despite their use by generations of
lawyers to describe the task of interpretation it is doubtful whether
they are helpful. Many
judges and academics have pointed out that
there is no basis upon which to discern the meaning that the members
of parliament or
other legislative body attributed to a particular
legislative provision in a situation or context of which they may
only dimly,
if at all, have been aware. Taking parliament by way of
example, legislation is drafted by legal advisers in a ministry,
redrafted
by the parliamentary draftsmen, subjected to public debate
in committee, where it may be revised and amended, and then passed by
a legislative body, many of whose members have little close
acquaintance with its terms and are motivated only by their or their
party's stance on the broad principles in the legislation. In those
circumstances, to speak of an intention of parliament is entirely
artificial. The most that can be said is that, in a broad sense,
legislation in a democracy is taken to be a reflection of the
views
of the electorate expressed through their representatives, although
the fact, that democratically elected legislatures sometimes
pass
legislation that is not supported by or unpopular with the majority
of the electorate, tends to diminish the force of this
point.
The
same difficulty attends upon the search for the intention of
contracting parties whose contractual purposes have been filtered
through the language hammered out in negotiations between legal
advisers, in the light of instructions from clients as to their
aims
and financial advice from accountants or tax advisers, or are
embodied in standard form agreements and imposed as the terms
on
which the more powerful contracting party will conclude an
agreement
."
51.
Another case that referred to
the
Securefin
-case,
but in terms of the
B Braun
Medical
-case did not
detract from it, is
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
.
[44]
The court held at Para 12 with reference to an earlier decision
(underlining added, and footnotes omitted):
"[12) That summary is no
longer consistent with the approach to interpretation now adopted by
South African courts in relation
to contracts or other documents,
such as statutory instruments or patents. Whilst the starling point
remains the words of the document,
which are the only relevant medium
through which the parties have expressed their contractual
intentions, the process of interpretation
does not stop at a
perceived literal meaning of those words, but considers them in the
light of all relevant and admissible context,
including the
circumstances in which the document came into being. The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away, interpretation is
no longer a process that occurs in stages but is 'essentially
one
unitary exercise'. Accordingly it is no longer helpful to refer to
the earlier approach."
52. The CC's argument was reflected as
follows in the application for leave to appeal (underlining added):
"31. The Court materially
misdirected itself and erred by making a final finding, that the
undertaking to refrain from taking
any form of legal action to
collect outstanding debt did not cover and was not intended to cover
the liquidation application in
casu
notwithstanding
the evidence on behalf of the Respondent
(which the court a quo could not and had not rejected)
[45]
that the undertaking
was sought and provided under circumstances where the intention of
the parties were that the affected entities
inclusive of the
Respondent would be allowed to proceed with their business
activities
.
32. In the circumstances the
Honourable Court materially misdirected itself by finally deciding a
factual dispute
as to the intention of the parties
with the undertaking that the Applicant shall refrain from taking any
form of legal action to collect outstanding debt against
inter alia
the Respondent and
specifically by effectively dismissing
the Respondent's claim and evidence that such an undertaking was
sought and given in order
to ensure that inter alia the
Respondent would be able to proceed with its normal business
activities
."
53. In a sense the application for
leave to appeal ends here, evidence as to the intention of the
parties would be inadmissible.
Still, I had another look at the
papers, should I be wrong.
54. The contextual background is the
following:
54.1. The sole member of the CC
deposed to the answering affidavit. He alleged that the CC formed
part of the
"de Beer group of entities".
The
averment lacks any factual detail. The deponent did not elaborate
about who the other entities were, what membership of
"de
Beer group of entities"
meant with regard to any sharing in
by the other entities in income generated by the CC, and did not
explain how such other entities
could have an alleged, unspecified,
but
"direct or indirect interest'
in the CC owned by him.
The averment about interests in the CC is denied in reply and the
denial is a matter of logic;
54.2. The deponent refers to
litigation between two entities in the
"de Beer group of
entities",
Sandstone Projects Trust sought to place
Koedoeskop River farms Alpha CC under business rescue in February
2015 on an urgent basis.
It is not stated where the CC finds itself
in this litigation, but the bank intervened. As will appear below,
the suggestion is
that the litigation was not at arms' length.
Sandstone Projects Trust and Koedoeskop River farms Alpha CC had the
same lawyers;
54.3. The outcome of the bank's
intervention was that a draft order was prepared by the legal
representatives, presumably acting
on instruction. The order reflects
that the application that Koedoeskop River farms Alpha CC be placed
under business rescue was
postponed
sine die
and that .instead
Koedoeskop River Farms Alpha CC was placed under provisional
liquidation by agreement. The heading to the agreement
in issue
refers to this matter. I repeat if for sake of convenience-
"That pending the finalisation
of the application for business rescue and the counter application
for liquidation under case
number 1350612015 ..."
54.4. The deponent does not state that
he formed part of the negotiations, or had any other knowledge
thereof. The bank denied his
personal knowledge;
54.5. In reaching the agreement that
led to the draft order, the parties were represented by attorneys and
senior counsel. It appears
that Sandstone Projects Trust and
Koedoeskop River Farms Alpha CC had the same set of lawyers. Two
names were given of the two
senior counsel, adv. Leathern SC for the
bank, and adv. Badenhorst SC for Sandstone Projects Trust and
Koedoeskop River Farms Alpha
CC. The deponent avers that adv.
Badenhorst SC acted for the whole of the
"de Beer group of
entities",
but gave no grounds for this conclusion;
54.6. The written agreement that the
CC relies upon was prepared by adv. Leathern SC for the bank. It was
intended as a draft letter
of undertaking by the bank. The bank avers
that it remained a draft;
54.7. The deponent gives the following
evidence about the intent with the agreement-
"The agreement evidenced by
annexure "A4' was reached and concluded to ensure that all
persons and entities that forms
part of the 'De Beer group of
entities" will remain intact operative and in business pending
the finalisation of the business
rescue application and the
liquidation application."
Not only is this evidence
inadmissible, but it is not based on any stated facts. The bank has a
conflicting version, if admissible;
54.8. The deponent further gives the
following evidence about the intent with the agreement-
"The purpose of the agreement
reached was thus to enable the persons and entities within the 'De
Beer group of entities' to
keep on trading in an attempt to settle
the obligations the different entities."
It is not suggested that there was an
oral agreement that, for example, the CC could stop making payments
to the bank with impunity.
The bank denies in reply that the CC had
any such right, a denial in accordance with the terms of the
underlying loan agreement
and logic.
55. In my view, to the extent
admissible, these facts do not lead to the interpretation that the CC
seeks. Assuming that the draft
undertaking was an agreement, the
author refers to liquidation proceedings and still in the operative
part seeks to limit a very
specific type of litigation,
"any
form of legal action to collect outstanding debt'.
I remain of
the view that this undertaking excluded liquidation proceedings.
56.
Even if were wrong in these
conclusions, it is now common cause that the agreement has fallen
away after the commencement of these
liquidation proceedings.
Koedoeskop River Farms Alpha CC was placed under final liquidation on
5 May 2016. The bank, it is common
cause, at least had
locus
standi
as a contingent
creditor when it commenced proceedings, see
Express
Model Trading 289 CC v Dolphin Ridge Body Corporate
[46]
at Para 14. In my view it is entitled to the order that I granted. In
addition, there is merit in the bank's averment that by stopping
payment, the CC breached the agreement and cannot rely thereon.
57. Consequently, the CC did not show
that there is a measure of certainty that there is a reasonable
prospect of success.
Conclusion
58. Consequently I make the following
order:
The application for leave to appeal is
dismissed with costs.
___________________
DP
de Villiers
Acting
Judge of the High Court
Gauteng
Division
Heard
on:
1 February 2017
On
behalf of the Applicant:
L Meintjes
Instructed
by:
Rorich, Wolmarans & Luderitz Inc
On
behalf of the Respondent:
GF Heyns
Instructed
by:
Hartzenberg Inc
Judgment
handed down:
8 February 2017
[1]
"(1)For the purposes
of section 68 (c) a corporation shall be deemed to be unable to pay
its debts, if-
(a) a creditor, by cession
or
otherwise, to wham the corporation is indebted in a sum of not
less than two hundred rand then due has served on the corporation,
by delivering it at its registered office, a demand requiring the
corporation to pay the sum so due, and the corporation has
for 21
days thereafter neglected to pay the sum or to secure or compound
far it to the reasonable satisfaction of the creditor;
or
(b) any process issued on a
judgment, decree or order of any court in favour of a creditor of
the corporation is returned by a
sheriff, or a messenger of a
magistrate's court, with an endorsement that he or she has not found
sufficient disposable property
to satisfy the judgment, decree or
order, or that any disposable property found did not upon sale
satisfy such process; or
(c) it is proved to the
satisfaction of the Court that the corporation is unable to pay its
debts.
(2)
In determining for the purposes of subsection (1) whether a
corporation is unable to pay its debts, the Court shall also take
into account the contingent and prospective liabilities of the
corporation.
[2]
Para 1, 2, 7, 8, 18 to 19, 21 to 24
[3]
2012 (5) SA 197 (FB)
[4]
"No proof of any
nature was tendered by the applicant that the respondent is
insolvent, which has the effect that it must
be taken that the
respondent is indeed still solvent. If solvent, s 68 is no longer
available to the applicant."
[5]
"1. No. case has been
made out in the founding papers that the Respondent is I was
commercially insolvent. Accordingly, it
must have been taken that
the Respondent is I was commercially solvent';
"2.
In circumstances where no case has been made out in the founding
papers that the Respondent is commercially insolvent, the Applicant
was not legally entitled to rely on "deemed inability to pay
debts" as a ground to establish insolvency"
"19.
The Court should instead have found that it was argued on behalf of
the Respondent that in order for the Applicant to
be entitled to
rely upon the statutory demand upon which it in fact strongly relied
for its
application
to succeed, the Applicant had to show that it was entitled to rely
on such statutory demand, which entailed that the
Applicant had to
demonstrate in its founding papers that the Respondent was
commercially insolvent as it otherwise would not
have been entitled
to rely on the statutory demand as a ground for the winding-up of
the Respondent;
"22.
In the circumstances the matter was approached at all relevant times
by the Respondent on the basis that the Applicant
in the present
matter did not make out a case in its founding papers for the
commercial
insolvency of the Respondent and therefore was not
entitled to rely on statutory demand and as a consequence could not
succeed
with its application for the winding-up of the Respondent on
the basis of the statutory demand''
;
"24.
The Court should have found that the founding affidavit contains no
iota or title of evidence in support of commercial
insolvency and
further that none of the content of the founding affidavit supports
a finding of commercial insolvency as a result
of which the
Applicant was not entitled to rely on the statutory demand"
[6]
2014 (2) SA 518 (SCA)
[7]
2011 (2) SA 266 (SCA)
[8]
Badenhorst v Northern Construction Enterprises (Pty) Ltd
1956 (2) SA
346
(T) at 348 A to C
[9]
Para 3
[10]
Para 6 and 25
[11]
Para 11 to 17
[12]
I am embarrassed by paragraph 3.13 of the main judgment where I
wrote:
"The
respondent only took issue further with any of applicant's
conclusion that it was entitled make he statutory demand".
I
made an error in the editing as in
fact
the sentence should
have been deleted as it appears at the end of Para 3.11 as:
"The
respondent did not take issue with any of the averments set out so
far, save for the applicant's
conclusion that it was entitled
to payment of the full amount due"
[13]
Para 4, 10, 11, 26 to 32
[14]
Para 10 and 11
[15]
Para 26 to 28 and 30
[16]
(A165/2013)
[2014] ZAWCHC 20
{20 February 2014)
[17]
Para 29 to 30
[18]
Para 31 to 32
[19]
Plascon-Evans Paints Ltd v Van Rlebeeck Paints (pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E to 635C
[20]
Para 33
[21]
10 of 2013
[22]
LCC14R/2014, (a judgment delivered on 3 November 2014)
[23]
(19577/09) [2016] ZAGPPHC 489 (24 June 2016)
[24]
"The Superior Courts Act has raised the bar for granting leave
to appeal in The Mont Chevaux Trust (112012/28) v Tina Goosen
&
18 Others, Bertelsmann J held as follow:
"It is clear that the threshold
for granting leave to appeal against a judgment of a High Court has
been raised in the new
Act. The former test whether leave to appeal
should be granted was a reasonable prospect that another court might
come to a different
conclusion, see Van Heerden v Cronwrlght &
Others
1985 (2) SA 342
(T) at 343H. The use of the word "would"
in the new statute indicates a measure of certainty that another
court will
differ from the court whose judgment is sought to be
appealed against.""
[25]
Badenhorst v Northern Construction Enterprises (pty) Ltd (supra)
1956 (2) SA 346
(T) at 348 A to C
[26]
2016 (3) SA 317 (SCA)
[27]
Kalli v Decotex (pty) Ltd and Another 1988 (1) SA 943 (A)
[28]
1998 (2) SA 418 (SCA)
[29]
(AS024/2012) [2012] ZAGPJHC 211 (30 October 2012)
[30]
Kalil v Decotex (pty) Ltd and Another (supra)
1988 (1) SA 943
(A),
Masterspice (pty) Ltd v Broszelt Investments CC
2006 (6) SA 1
(SCA),
Exploltatle- En Beleggingsmaatschapplj Argonauten 11BV and Another v
Honig
2012 (1) SA 247
(SCA), and Freshvest Investments (pty) Ltd v
Marabeng (pty) Ltd {1030/2015)
[2016] ZASCA 168
(24 November 2016)
[31]
Kalil v Decotex (pty) Ltd and Another (supra)
1988 (1) SA 943
(A)
[32]
Plascon-Evans Paints Ltd v Van Rlebeeck Paints (pty) Ltd (supra)
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E to 635C
[33]
2011 (4) SA 42 (CC)
[34]
Para 12 to 17, 22 to 25
[35]
The section has been quoted in the first footnote
[36]
[1998] ZASCA 43
;
1998 (3) SA 775
(SCA) at 779E to I
[37]
Plascon-Evans Paints Ltd v Van Rlebeeck Paints (pty) Ltd (supra)
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E to 635C. See Executive Officer,
Financial Services Board v Dynamic Wealth Ltd And Others
2012 (1) SA
453
(SCA) at Para 19.
[38]
In a case such as the present the invariable outcome is that the
application would fail and that instead leave be given to answer
new
matter
[39]
In a case such as the present the invariable outcome is that the
application would have succeeded
[40]
1999 (2) SA 279
(T) at 323F to 325C
[41]
2009 (4) SA 399 (SCA)
[42]
2015 (3) SA 22 (SCA)
[43]
2012 (4) SA 593 (SCA)
[44]
2014 (2) SA 494 (SCA)
[45]
2014 (2) SA 494 (SCA)
[46]
2015 (6) SA 224
(SCA)