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[2017] ZAGPPHC 271
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City of Cape Town v WBHO Construction (Pty) Ltd and Others (86873/2014) [2017] ZAGPPHC 271 (31 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
31/03/2017
CASE
NO: 86873/2014
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
THE
CITY OF
CAPE
TOWN
Plaintiff/ Applicant
and
WBHO
CONSTRUCTION (PTY)
LTD
First
Defendant/ Respondent
STEFANUTTI
STOCKS
Second
Defendant / Respondent
HOLDINGS
LIMITED
AVENG
AFRICA (PTY)
LTD
Third
Defendant/ Respondent
JUDGMENT
AC
SASSON,
J
[1]
The plaintiff (the
applicant in this application -the City of Cape Town) instituted an
action in December 2014 claiming damages
jointly and severally from
the defendants (the respondents in this application) in an amount of
R429 474 878 as at 2010, alternatively
R428 757 001 as at
2010.
[2]
The plaintiff is a
metropolitan municipality which is the local authority responsible
for the metro city of Cape Town. In 2010 the
plaintiff was the
contracting authority for the Green Point Stadium in Cape Town which
was to host soccer matches, including a
semi-final, for the 2010 FIFA
World Cup. To that end, the plaintiff in 2006 invited tenders, in
terms of a two-stage bidding process,
for the design and
construction of the Green Point
Stadium.
[3]
The defendants are
construction companies which were involved in the construction of
stadiums in South Africa for the 2010 FIFA
World Cup. The first
defendant/respondent is WBHO Construction (Pty) Ltd, the second
defendant/respondent is Stefanutti Stocks
Holdings Limited and the
third defendant/respondent
is
Aveng Africa (Pty) Ltd.
[4]
The first and second
defendants (in joint ventures with respectively,
Murray
&
Roberts (Pty) Ltd ("M
&
R")
and Constructora do Tamega (SA) were selected from the short list of
bidders eligible to be considered for the second stage
of the tender
process. The third short-listed bidder was Group Five Building (Pty)
Ltd ("Group
Five").
[5]
The joint venture between
WBHO and M & R (the "WBHO joint venture") was
successful. On 23 March 2007 the plaintiff
concluded the principal
contract for the construction of the Green Point Stadium with
the WBHO joint venture.
[6]
It is stated in the
papers that it subsequently transpired that there had been collusive
tendering (so-called "bid rigging")
between the
construction companies with regard to the stadia built for the
2010 FIFA World Cup. This collusion included
so-called "cover
pricing" - which involves a firm that wishes to win a
tender submitting a price to one or more
competitors to enable the
competitor(s) to submit a higher price than the firm intended to
submit. Collusive tendering (including
rigging bids or
providing a cover price) is a prohibited practice in terms of section
4(1)(b)(iii) of the Competition Act, 89 of
1998 (the "
Competition
Act"
;).
[7]
The Competition Tribunal
and the Competition Appeal Court have exclusive jurisdiction to the
exclusion of the civil courts to hear
and determine all complaints of
prohibited practices including those committed in
contravention of
section 4
of the
Competition Act. Sections
65(6) to (10) recognise and regulate claims for damages for loss or
damage suffered as a result of a prohibited practice.
[8]
The
collusive tendering was
investigated by
the
Competition Commission
(the "Commission"). Various construction companies
thereafter decided to settle with the Commission.
Agreements between
the Commission and those companies were made consent orders by the
Competition Tribunal (the "Tribunal")
in terms of section
490
read with
section
58(1)(b)
of the
Competition
Act.
[9
]
On 22 July 2013 the
Tribunal confirmed an order agreed to between the Commission and
WBHO, in which WBHO admitted that it had colluded
inter
alia
in respect of
the Green Point Stadium. According to the consent order between the
Commission and WBHO the
following was agreed to:
"WBHO reached an agreement with
Group Five on or about 13 December 2006 in respect of the Green Point
Stadium in Cape Town,
in that WBHO provided a cover price to Group
Five, on the basis that Group Five would not win the tender.
This conduct is
collusive tendering in contravention
of section 4(1)(b)(iii) of the Act.
The
project was the construction for Green Point Stadium including its
surrounding infrastructure. The client for the project was
City of
Cape Town. The tender was awarded to the Murray & Roberts/WBHO
joint venture and the project was
completed
in December 2009."
[10
]
On 22 July 2013 the
Tribunal confirmed an order agreed to between the Commission and
Stefanutti in which Stefanutti admitted
that it
had also colluded
inter alia
in
respect of the Green Point Stadium. The following
appears from that
order:
"Stefanutti reached agreement
with WBHO on or about December 2006, in that they agreed on a cover
price in respect of this
project. In terms of the agreement WBHO
provided a cover price to Stefanutti so that Stefanutti could submit
a non-competitive
bid to ensure that WBHO won the tender. WBHO was in
joint venture with Murray & Roberts when bidding for the tender,
and won
the tender in line with the collusive arrangement. This
conduct is collusive tendering in contravention of section
4(1)(b)(iii)
of the Act.
This project was for the construction
of Green Point Stadium in Cape Town, for the City of Cape. The
project was completed
on 10 November 2009."
[11]
On 23 July 2013
the Tribunal confirmed an order agreed to between the Commission and
Aveng in which Aveng admitted that it too had
colluded (when trading
under the name Grinaker LTA) in respect of World Cup stadia,
including the Green Point Stadium. The following
appears from the
consent order between the Commission and
Aveng:
"During or about 2006, Grinaker
LTA, WBHO, Murray & Roberts, Group Five, Concor and Basil Read
met twice and reached an
agreement in respect of the construction of
the 2010 FIFA World Cup Stadia, in terms of which these firms agreed
to allocate the
Mbombela, Peter Mokaba, Moses Mabhida, Soccer
City, Nelson Mandela Bay and the Greenpoint Stadia tenders among
themselves
and to exchange cover prices. They further agreed that
they should all aim to obtain 17,5% profit margin in all the 2010
FIFA World
Cup Stadia projects. This conduct is collusive tendering
in contravention of section 4(1)(b)(iii) of the Act."
[12]
On 8 August
2013,
the Chairperson of the
Tribunal issued certificates in terms of
section 65(6)(b)
of the
Competition Act certifying
that:
(i)
"WBHO had been found
guilty of engaging in a prohibited practice contrary to
section
4(1)(b)(iii)
of the
Competition Act on
22 July 2013, in that there
was "Collusive
tendering
as
per
clause
5.1
of
the
consent
order
between
Commission and
WBHO"."
[WBHO
consent order
PL11
and
WBHO
Certificate
PL14.]
(ii)
"Stefanutti had
been found guilty of
engaging in
a
prohibited practice contrary to
section 4(1)(b)(iii)
of the
Competition Act on
22 July 2013, in
that there was "Collusive
tendering as per clause 5.5 of the consent order between Commission
and Stefanutti"." [Stefanutti
consent order PL12 and
Stefanutti Certificate
PL15.]
(iii)
Aveng had been found
guilty of engaging in a prohibited practice contrary to
section
4(1)(b)(iii)
of the
Competition Act on
23 July 2013, in that there
was "Collusive tendering by
... Grinaker
LTA
as
per
clause 6.1
of
the
consent order between the
Commission and
Aveng". [Aveng
consent order
PL13 and
aveng Certificate
PL16.]
[12]
In terms of
section
65(6)(b)
of the
Competition Act, a
person who has suffered loss or
damage as a result of a prohibited practice, if entitled to commence
an action in a civil
court for the assessment of the amount or awarding of damages -
"must file with the Registrar or
Clerk of the Court a notice from the Chairperson of the Competition
Tribunal ...in the prescribed
form -
(i)
certifying
that
the
conduct constituting
the
basis
for
the
action
has
been found to be a
prohibited practice in
terms of this Act;
(ii)
stating the date
of the Tribunal ... finding; and
(iii)
setting out the
section of this Act in terms of which the Tribunal ... made its
finding."
[13]
In
brief
section
65(6)(b)
of
the
Competition Act
requires
says
that
anybody who institutes
such an action for damages must file a notice issued by the
Chairperson of the Competition Tribunal certifying
that "the
conduct constituting the basis for the action has been found to
be a
prohibited practice in
terms
of
this
Act". The
notice
must
in
other
words
certify
that
the
defendant's conduct on
which the plaintiff's claim is based has been found by the Tribunal
to be a prohibited practice. In terms
of section 65(7) -
"A certificate referred to in
subsection (6)(b) is conclusive proof of its contents, and is binding
on a civil court."
[14]
The plaintiff alleges
in its Particulars of Claim on the strength of those certificates,
read with the consent orders to which they
refer, that they had
suffered the damages claimed. In this regard the following is alleged
in the Particulars of Claim in relation
to
"Damages":
"As a direct result of the
prohibited practices of the first, second and third defendants
referred to above:
34.1
and unbeknown to the
plaintiff at the time, no competitive tender was submitted for the
design and construction of the Stadium by
either the joint venture,
the
joint
venture of
which
the second
defendant was part, or
Group Five Building (Pty)
Ltd;
34.2
the contract sum tendered
by the first defendant was wrongfully and unlawfully inflated
due
to
the
collusive
behaviour of
the
defendants and the
prohibited practices (as defined in the Act) perpetrated by the
defendants;
34.3
the plaintiff suffered
damages."
[15]
The plaintiff now applies
for leave to amend its Particulars of Claim in accordance with its
further revised Notice of Intention
to Amend. WHBO opposes the
application on the ground that the amended Particulars of Claim will
be excipiable in that they will
not disclose a cause of action for
the respondent's claim against
WHBO.
[16]
This application follows
upon a Rule 23(1) Notice on 19 February 2015 in terms of which Aveng
alleged that the Particulars of Claim
lacked averments necessary to
sustain a cause against Grinaker alternatively, that the averments
are vague and embarrassing. In
brief the objection was that there was
no
allegation
that
Grinaker
ever implemented the collusive agreement to which it had confessed or
facilitated its implementation by the other defendants
and that it
was also not pleaded how Grinaker had caused the harm alleged to
the
plaintiff through its
wrongful conduct.
[17]
The plaintiff then
delivered a Notice of Intention to amend (in terms of Rule 28(1))
dated 13 March 2015 in an attempt to remove
any possible cause of
complaint.
[18]
WBHO then objected and on
26 March 2015 delivered a notice in terms of Rule 28(3)
objecting to the proposed amendment.
[19]
The plaintiff, in an
attempt to avoid an interlocutory dispute, delivered a revised Notice
of Intention to Amend in terms of Rule
28(1) dated
24 April 2015.
[20]
WBHO was again not
satisfied with the revised Notice of Intention to Amend and delivered
a further Rule 28(3) notice on 7 May 2015
opposing all of the
proposed amendments. The basis of the objection is that the proposed
amendments would, if allowed, result in
the Particulars of Claim not
disclosing a cause of action against WBHO relating to the
"Grinaker collusive agreement"
and, alternatively
would be vague and
embarrassing.
[21]
The plaintiff has now
concluded that the only way in which it would be able to effect the
amendments is to bring a Rule 28(4) application
to effect the
amendments. In doing so certain inadvertent and obvious errors
contained in the Rule 28(1) notice of 24 April 2015
have also been
corrected.
[22]
A revised Rule 28(1)
notice was accordingly prepared (referred to as the "further
revised Rule 28(1) Notice"). This document
reflects the
amendments that the plaintiff seeks leave to introduce
and for which an order is sought in
these proceedings.
[23]
WHBO is the only
defendant (respondent) who has objected to the plaintiff's latest
proposed amendment and has done so
on the basis that the
Particulars of
Claim
(as
proposed
by
the
amendments) will
render the
Particulars of
Claim excipiable in that
no cause of action will be disclosed as well as by virtue that the
Particulars of Claim will
be rendered vague and
embarrassing.
[24]
The plaintiff proposes
ten amendments. Five of these proposed amendments merely involve the
insertion of definitions into existing
paragraphs of the Particulars
of Claim. A further proposed amendment involves the insertion
of words in paragraph
[33] of the
Particulars
of Claim for the sake of clarification.
[25]
The
remaining four amendments
involve more substantive amendments:
(i)
The insertion of a
paragraph 30A after paragraph 30, reading as follows:
"Had
it not been for the WBHO / Group 5 collusive agreement, Group 5 would
have responded to the invitation with a competitive
bid.";
(ii)
The insertion of a
paragraph 31A after paragraph 31, reading as follows:
"Had
it not been for the Stefanutti / WBHO collusive agreement the second
defendant would have responded to the invitation
with a competitive
bid.";
(iii)
the insertion of a
new paragraph 32A after paragraph 32, containing the
following subparagraphs:
"32A.
The Grinaker collusive agreement was honoured and implemented by the
third defendant, as the first defendant was
aware.
328.
The implementation by the third defendant of the Grinaker
collusive involved the allocation of the Stadium to the first
defendant and M
&
R,
the third defendant refraining from responding to the invitation for
pre-qualification ('PL1' hereto), and the third defendant,
by so
refraining creating the false impression with the plaintiff that only
a limited number of major construction firms were interested
in
prequalification.
32C
Had it not been for the Grinaker collusive agreement the third
defendant would have responded to the invitation, would have
prequalified and would submitted a competitive bid.
320
As a consequence and as a direct result of the WBHO / Group 5
collusive agreement, the Stefanutti / WHBO collusive agreement
and
the third defendant (to the knowledge of the first defendant) having
concluded and given effect to the Grinaker collusive agreement,
the
defendants:
32D.1
permitted the first defendant's joint venture to bid successfully for
the design and construction of the Stadium with a profit
margin of
above 17.5% in the knowledge that there would be no competitive bids
based on a reasonable overhead and profit margin
of not more than
6.19% for the design, development and financial sustainability
planning and the construction of the Stadium;
32D.2
facilitated an initiated tender by the first defendant's joint
venture ('PL3' hereto), an inflated final offer ('PL4'
hereto)
and an inflated adjusted contract sum ('PL5'
hereto);
32D.3
facilitated the submission by the first defendant's joint venture of
a tender with an overhead and profit margin of
18.61%,
instead of a reasonable overhead and profit margin of not more
than 6.19%, thereby causing the plaintiff the loss
more fully
addressed in calculations 1 and 2 hereunder;
32D.4
caused the professionals to eventually be paid an inflated amount in
respect of professional fees, as pleaded in paragraph
20
above.";
(iv)
The deletion of
the last three words of subparagraph 34.1 (to accord with the earlier
definition of
"Group
Five")
and the
addition of the following
thereafter:
"while
the first defendant also knew that no competitive bid for the
design
and
construction of
the
Stadium would
be
forthcoming from the
third defendant, and that the other attendees at the meeting referred
to in the third certificate
('PL16'),
other
than
the
first defendant and M
&
R,
would either not submit
bids or would submit uncompetitive
ones".
[25]
According to the
plaintiff these additions were designed to include allegations that
the various collusive agreements were implemented
and to indicate
what resulted from the implementation thereof (and thus what
prejudice was sustained by the plaintiff in
consequence
thereof).
[26]
The
law applicable to amendments and exceptions need no elaboration.
Suffice to point out that an application to amend requires
a court to
exercise a judicial discretion with due regard to all the facts
before it. The general rule is that a court will allow
bona
fide
amendments
unless the other party will be prejudiced thereby in a manner which
cannot be compensated by a costs. See in
this
regard
Moolman
v
Estate
Moolman
:
[1]
"the practical rule adopted seems
to be that amendments will always be allowed unless the application
to amend is mala fide
or unless such amendment would cause an
injustice to the other side which cannot be compensated by costs, or
in other words unless
the parties cannot be put back for the purposes
of justice in the same position as they were when pleadings which
is
sought to amend was filed."
See
also:
Euroshipping
Corporation of Monrovia v Minister of Agriculture and Others:
[2]
"It is as well at this stage to
state in broad general terms the approach to be adopted in an
application of this kind. In
deciding whether to grant or refuse an
application for an amendment to a pleading, the Court exercises a
discretion. The modern
tendency is for the Court, in exercising this
discretion, to lean in favour of granting an amendment, particularly
so as to ensure
that the real issues between the parties might be
ventilated. The applicant for an amendment is, however, required to
furnish a
satisfactory explanation for seeking the amendment and to
satisfy the Court that the original omission from the pleadings was
not
ma/a
fide.
Mere delay in making the application is not a
ground for refusing the amendment provided the delay does not result
in prejudice
to the other party. Finally the applicant must satisfy
the Court that the amendment, if granted, will not result in
prejudice to
the other party of a kind which cannot be overcome by a
postponement and be compensated for by an order for costs. See
Trans-Drakensberg
Bank
Ltd
(under
Judicial Management) v
Combined
Engineering (Pty)
Ltd
and
Another
1967 (3) SA 632
(N) where most of the relevant decisions on
amendments are collected and analysed."
[27]
Where
a
n
amendment will render a pleading excipiable the court will not grant
an amendment. It is for the excipitent to persuade a court
that the
proposed amendment will (not may) render the claim excipiable. See
Krischke
v Road Accident :
[3]
"[9] In reviewing decisions of
the Supreme Court in
Cross v Ferreira
1950 (3) SA 443
(C), the
Court concluded at 449H:
'While
the practice is not entirely uniform on this point, the weight of
authority seems to favour the view that if the pleading
as sought to
be amended would be excipiable, this affords a ground upon which the
Court may, in the exercise of its discretion,
refuse the application
for amendment.'
Rule 23 of the Rules of this Court
stipulates:
'(1)
Where any pleading is vague and embarrassing or lacks
averments are necessary to sustain
an action or
defence, as the case
may be, the opposing party
may, within the period allowed for A filing any subsequent pleading,
deliver an exception thereto....'
A pleading which is bad
in law lacks averments which are necessary to sustain an action. It
follows that an amendment should be
refused on the ground of
excipiability if it is clear that the amended pleading will (not may)
be excipiable. (Van Winsen
et
al The Civil Practice of the Supreme Court of South Africa
4th
ed; B
Minister of
Defence, Namibia v Mwandinghi
1992 (2) SA 355
(NmS) at 364H - I.) Applications for the amendment of pleadings are
normally granted if
bona
fide
and if prejudice that cannot be cured by
a postponement or an order of costs is absent. The party seeking an
amendment bears the
onus
of showing that it is made
bona
fide
and that there is an absence of
prejudice
C
(Macduff
and
Co
(in
Liquidation) v Johannesburg Consolidated Investment
Co
Ltd
1923
TPD 309
;
Rosenberg v
Bitcom
1935 WLD 115
;
Oumasi
v Commissioner, Venda Police
1990 (1) SA 1068
(V) at 1071B;
Brandon
v Minister of Law and Order and Another
1997
(3) SA 68
(C) at
75)."
[28]
In
deciding this issue the court must accept as correct the pleaded
allegations and consider whether those allegations are capable
of
supporting a cause of action. The excipient must demonstrate that the
conclusion of law pleaded by the other party cannot be
supported by
any reasonable interpretation of that party's pleading.
[4]
Where
a party contends that a pleading will be rendered vague and
embarrassing, such a party must make out a clear and strong case
before such a party will be allowed to succeed. The alleged vagueness
must affect the whole cause of action and it is generally
not enough
that a particular paragraph is unclear or capable of more than one
meaning. Even where it is found that a pleading is
vague a party will
only succeed if such vagueness causes embarrassment to the extent
that the opposing party is unable to plead
in response
thereto.
[29]
The plaintiff's claims
against WBHO, Stefanutti and Aveng are for damages the
plaintiff it says it suffered as a result
of prohibited practices
committed by the defendant in contravention of
s 4(1)(b)
of the
Competition Act 89 of 1998
.
[30]
WBHO
contends that
the
proposed amendment would be
susceptible
to
a
"no
cause of action" exception because it would "introduce a
cause of action against the first defendant based on
the "Grinaker
collusive agreement", without filing a
section 65
certificate
confirming that there was a prohibited practice of this kind to which
WBHO was a party. In this regard the court was
referred to the
decision in
Premier
Foods v Manoim
[5]
where
the court confirmed that, in terms of
s 65(6)(b)
of the
Competition
Act, a
plaintiff may only rely on the Tribunal's findings against the
defendant in a matter in which the
defendant
was cited as a respondent.
The
plaintiff
cannot rely on
findings
of the
Tribunal
made in
the
defendant's
absence in
matters
to
which
it was not a
party.
[31]
In light of the
aforegoing it was therefore submitted that, in its claim against
WBHO, the plaintiff can
only
rely on the WBHO
collusive practice and cannot rely on WBHO's participation in the
Stefanutti and Aveng collusive practices because
the Tribunal's
findings about those practices (and WBHO's participation in
them) were
made
in
proceedings against
Stefanutti and
Aveng
in the absence of WBHO who was not a party to those proceedings.
Consequently, according to WHBO, the plaintiff's particulars
of claim
do not disclose a cause of action against WBHO on the
basis of the WBHO
collusive practice alone
and submitted that
the
Stefanutti and
Aveng collusive practices
are essential struts of the plaintiff's claim against WBHO. It was
further submitted that if they (the
Stefanutti and Aveng collusive
practices) are removed,
the
plaintiff's claim
would
fail.
Consequently, the
Particulars
of
Claim do not disclose a
lawful cause of action against WBHO.
[31]
The plaintiff does not
take issue with the legal principles as set out on behalf of WHBO and
accepts unequivocally that the plaintiff
cannot claim damages from a
particular defendant on the basis that the defendant is guilty of a
"prohibited practice"
under the
Competition Act unless
there is a
section 65
certificate certifying that the competition
authorities have found that particular defendant guilty of the
prohibited practice.
[32]
It was, however,
submitted on behalf of the plaintiff that it is
not
seeking damages from
WBHO on the basis that WBHO was party to the collusive practice
defined in the proposed amended Particulars
of Claim as the
"Grinaker
collusive agreemenf'.
In
this regard it was submitted that, if regard is had to
the amended Particulars,
it
is
clear that the relevance
of
the
Grinaker collusive
agreement is that WBHO was
aware
that the Grinaker
collusive agreement had been concluded and would be implemented and
thus that other competitors like Grinaker
would not be submitting
competitive bids and would moreover be expecting that a competitive
bidder would be expecting to obtain
a profit margin in the region of
17.5%.
[33]
It was therefore argued
that the Grinaker collusive agreement is not relied on by the
plaintiff in order to
prove
whether
WBHO acted wrongfully and
culpably but is merely
relied upon for the subsequent enquiries of causation and damages and
thus for
the
determination of what prejudice or
(the quantum of) loss
sustained due to WBHO's deliberately wrongful conduct. The plaintiff
is therefore
not
seeking damages on
the basis that WBHO was guilty of the prohibited practice certified
in "PL16'': The plaintiff merely alleges
knowledge
by WBHO of that
collusive agreement. In this regard the court was referred to the
proposed clause 320 in which specific reference
is made to the
"knowledge" of WHBO of collusive practices other than the
Group Five collusion.
[34]
I have considered the
submissions and the papers before me and I am not persuaded that the
proposed amendment failed to advance
a cognisable cause of action
against WHBO and that the proposed amended Particulars of Claim would
therefore be excipiable on this
basis. More in particular, I am not
persuaded, particularly if regard is had to the express wording used
in the proposed amendment
that the plaintiff seeks to introduce a
cause of action in terms of which damages is sought against WHHO on
the basis that WBHO
was guilty of the prohibited practice certified
in PL16. Again, if regard is had to
the
proposed amendment, the
plaintiff
merely alleges knowledge
by
WBHO
of that collusive
agreement.
[35]
No submissions were
advanced on behalf of the first defendant in respect of the
objection based on a "vague and embarrassing
exception".
However, in so far as it is necessary to deal with this
objection I am likewise not persuaded
that in the event the amendment
is granted that the Particulars of Claim would be rendered
vague and
embarrassing.
Order
[36]
In the event the
following order is made;
1.
The applicant
- the City of Cape Town
- is
granted leave to amend
its Particulars of Claim
in the above matter in accordance with the Plaintiff's Further
Revised Notice in terms of
Rule 28(1)
(Annexure "JSM1" to
the Founding affidavit and
"NoM1" hereto).
2.
The first respondent -
WBHO Construction (Pty) Ltd -
is
ordered to pay the costs
of this application, which costs include the costs occasioned by the
employment of two
counsel.
_________________________
AC
SASSON
JUDGE
OF THE HIGH COURT
Appearances:
On
behalf of the applicant:
SF Burger SC, PBJ Farlam SC, Adv H Slingers
Instructed
by:
Adams & Adams
On
behalf of the first respondent
W Trengove SC. Adv G Marriott
Instructed
by:
Nortons Inc
[1]
1927
CPD 27
at
29.
[2]
1979
(2) SA 1072
(C).
[3]
2004
(4) SA 358
(W)
at
para
9
(363A-B);
Minister
of Defence, Namibia v Mwandinghi
1992
(2) SA 355
(NmS)
at
364H-I
[4]
YB
v
SB
and Others NNO
2016
(1) SA 47
(WCC) at paragraph [12].
[5]
2016
(1) SA 445
(SCA).