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[2017] ZAKZDHC 9
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Quindell Business Process Outsourcing (Pty) Limited v Bespoke BPO (Pty) Limited (9796/2015) [2017] ZAKZDHC 9 (22 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 9796/2015
In the
matter between:
QUINDELL
BUSINESS PROCESS
OUTSOURCING
(PTY) LIMITED
Applicant
and
BESPOKE
BPO (PTY)
LIMITED
Respondent
ORDER
[1] The
interim order of 18 September 2015 is set aside. The relief in the
main application is refused.
[2] All
materials and copies seized or made pursuant to such order of 18
September 2015, are to be returned to the respondent’s
attorneys of record forthwith.
[3] The
applicant is directed to pay the costs occasioned by the application
including any reserved costs, such costs are to include
the costs of
Senior Counsel.
JUDGMENT
HENRIQUES
J
Introduction
[1]
This is an opposed application involving an Anton Pillar type order.
The applicant seeks an order essentially confirming the
interim
relief granted to it
ex parte
on 18 September 2015 and a
determination as to whether copies of the computer data and
information obtained in terms of the interim
order are available for
the applicant’s further use in instituting an action for
damages against the respondent.
Issue
[2]
Having regard to the affidavits and the heads or argument filed, the
sole issue for determination is whether the applicant is
entitled to
the relief, or as the respondent contends,
whether
the form of the order granted vitiated the entire proceedings
justifying the order being set aside and the status quo being
restored.
[3] To
determine this issue a brief background to the application is
necessary. The facts that I allude to are not those which
form
the basis of the application, but rather will focus on the nature of
the relief granted. The applicant’s notice of motion
and the
interim order granted on 18 September 2015, incorporated an order
directing the sheriff forthwith at the time of seizure,
to make
copies of the seized material available to the applicant. The relief
sought in the notice of motion on 18 September 2015
was
inter alia
the following:
‘
2.2 make two mirror images of the following
information from the hard drives of any computers there found, one of
which shall be
sealed and handed to the Sheriff for safe-keeping
pending the conclusion of these proceedings and to provide the other
copy to
the Applicant for the purposes of preparing further
affidavits in these proceedings:’
[4] The
order granted by Jeffrey AJ on 18 September 2015 insofar as the
ex
parte
relief is concerned reads as follows:
‘
1. Authorising the Sheriff of the above
Honourable Court, duly assisted by a technician from
Universal
Networks CC, Tyron Anthony Hussey
, the Applicant’s Attorney
Henning Johannes Du Toit
, the independent supervising attorney
and further assisted by
Dean Anderson
of the Applicant, to
attend at the business premises of the Respondent at 302 Prince
Alfred Street, Pietermaritzburg, KwaZulu-Natal
and there to:
1.1
search the premises for any computer equipment and recordable devices
and documentation;
1.2
make two mirror images of the following information from the hard
drives of any computers there found, one of which shall be
sealed and
handed to the Sheriff for safe-keeping pending the conclusion of
these proceedings and to provide the other copy to
the Applicant for
the purposes of preparing further affidavits in these proceedings:
1.2.1 all contracts (whether in draft, unsigned or
signed) involving customers of the Applicant as set out in annexure
“A”
hereto (hereinafter referred to as “Applicant’s
customers”);
1.2.2 all voice loggings with any of the Applicant’s
customers;
1.2.3 hard or soft copies of the Applicant’s
client file list or data base;
1.2.4 all and any letters of employment and employment
contracts between the Respondent or any affiliated entity of the
Respondent
and with:
1.2.4.1
Karl Lambie
1.2.4.2
Daryl Naidoo
1.2.4.3
Marc Brooker
1.2.4.4
Julia Coetzee
1.2.4.5
Matt Naude
1.2.4.6
Ken Albon
1.2.4.7
Ravi Mohan
1.2.4.8
Korayscha C. Subrathee
1.2.4.9
Ronald Naidoo
1.2.4.10
Dhylan Pillay
1.2.4.11
Tyler Trenam
1.2.4.12
Sharlon Pather.
1.3
make copies of the information set out in paragraphs 1.2.1, 1.2.2,
1.2.3 and 1.2.4 above stored on any recordable devices or
documentation found at the Respondent’s premises, and to retain
any such devices or documentation containing any information
belonging to the Applicant or concerning the Applicant’s
business activities, for safe-keeping pending the conclusion of
these
proceedings.
2. Ordering that the order in paragraphs 1.1, 1.2 and
1.3 above operate as an interim order, pending the application for
the relief
set out in the main application as recorded in the Notice
of Motion dated 16
th
September 2015.
3. Authorising the Respondent to approach this Court if
so advised, on 24 hours’ notice to the Applicant, to set aside
this
interim order.
4. That the costs of this application be costs in the
main application.’
[5] At
paragraph 9 of the founding affidavit deposed to by Ricardo Fabio
Simonetti, he says the following:
‘
I seek the issue of the First Order Prayed with
interim relief, pending the finalisation of this application. I
request that
any and all of the documentation copied by the Sheriff
remain under seal pending the finalisation of this application, in
the event
that the Respondent should cry foul regarding this
application being launched without notice to it.’
[6] At
paragraphs 66 and 70, the deponent indicates that the applicant has
decided not to proceed with the enforcement of the restraint
of trade
agreements against Albon and Lambie, but will proceed with a damages
claim based on unlawful competition.
[7] In
respect of the aspect of urgency and proceeding
ex parte
, the
deponent to the affidavit says the following in his affidavit:
‘
72. The Applicant anticipates that in the event
of the Respondent receiving notice of this application, the
Respondent will destroy,
remove or ensure that any evidence in
support of the Applicant’s intended claim does not fall into
the hands of the Applicant.
73. My fear is that, if the Respondent is given any
notice of this application, the Respondent will do its best to
destroy or materially
alter the documentation and evidence that the
Applicant seeks by way of this application, to the Applicant’s
detriment.
74. I have asked that the documentation and evidence
sought be kept under seal until such time as this application is
finalised.
75. The Respondent can clearly claim no prejudice in
such an Order being granted, whereas the prejudice to the Applicant
is manifest
should an interim order be refused and a final Order
thereafter be granted, given the reasonable apprehension that the
Respondent
will do all in its power to ensure that any evidence of
its wrongdoing does not fall into the hands of the Applicant.’
[8] It
would appear that at paragraph 70, Simonetti indicates that the
documents and information currently in possession of the
respondent
will assist the applicant in proving its anticipated damages claim
against the respondent. The documents and information
identified by
him in such affidavit are the following:
‘
(i) Contracts (whether in draft, unsigned or
signed and whether in writing or oral) involving clients of the
Applicant;
(ii) all voice loggings including oral contracts
concluded with any of the Applicants’ clients;
(iii) hard or soft copies of the Applicant’s
client file list or database;
(iv) contracts of employment and / or letters of
employment with former employees of the Applicant.’
[1]
[9] In
the report of the supervising attorney dated 27 November 2015,
[2]
he confirms
inter alia
that the search and seizure was carried out in compliance with the
court order and further at paragraph 16 thereof, he states the
following:
‘
Prior to the removable USB flash drive removed
from the premises, copies of the list of the recorded items were
supplied to the
Applicant’s attorney and to the Respondent’s
Marc Brooker as well as the sheriff.’
Anton
Piller Orders
[10] An
Anton Piller order authorizes the search and seizure of documents and
related material relevant to proceedings which an
applicant intends
to pursue, and is directed at the preservation of evidence. By its
very nature, it is an order sought for procedural
relief for the
preservation of evidence which will ultimately be used to secure
substantive relief.
[3]
Normally
such application is an
ex parte
application and is often heard in camera. An applicant must show that
notice to the respondent may render the relief nugatory
[4]
and such order provides instant relief subject to a variation, or
discharge of the order at a later date, alternatively, a
reconsideration
thereof.
[5]
[11] An
applicant for such relief must satisfy the court
prima facie
,
that it has a cause of action against the respondent which it intends
to pursue:
[11.1] that the respondent is in possession of
specific and specified documents or things that constitute vital
evidence to
substantiate the applicant’s cause of action to
which the applicant does not have a real or personal right;
[11.2] that there is a real and well-founded
apprehension that such evidence may be destroyed or in some way be
spirited away
before discovery or by the time the case comes to
trial.
[6]
[12] A
court has a discretion whether or not to grant an Anton Piller order,
and if it does decide to exercise such discretion,
may stipulate what
terms the form of the order ought to take.
[13] In
exercising its discretion, a court must often weigh the potential
harm to be suffered by the respondent if an order is granted,
as
against the potential harm to the applicant if the relief is
withheld. Anton Piller orders are often regarded as invasive and
potentially harmful and are often seen as being draconian in nature
and should be granted only in exceptional circumstances.
[7]
[14] In
issuing an order, a court must consider that the terms of the order
sought are no more onerous than is necessary to protect
the interests
of the applicant. A wide framing of an order may not be willful or
mala fide
to result in the discharge of a rule
nisi
. If
the order is too wide, an applicant must show cogent reasons as to
why the order should not be discharged.
[15] In
our division, the draft order must prohibit anyone, without the leave
of court, from disclosing any fact relating to the
application and
enable the sheriff to enter and search the premises to seize, attach,
and remove specified material and retain
same in his possession
pending the court’s direction. A court order may in fact
stipulate that the acts to be performed by
the sheriff must be done,
under the supervision of the applicant’s attorney and a
supervisory attorney.
[8]
[16] It
has been repeatedly held that the purpose of an Anton Piller order is
to preserve evidence and is not a fishing expedition.
[9]
It is not designed to enable a prospective litigant to either see or
gain access to his adversary’s documents.
[17]
It is common cause between the parties, alternatively not disputed
that:
[17.1] The Anton Piller order was granted
ex
parte
an in camera.
[17.2] The notice of motion was not in its usual
form, and was not in the form of a rule
nisi
with any return date nor did it make reference to a date by which the
contemplated action proceedings would be instituted.
[10]
[17.3] Paragraph 3 of such order was to the effect
that the relief in paragraphs 2.1, 2.2 and 2.3 would operate as an
interim
order pending the application for the relief set out in the
main application. The respondent could approach the court on 24
hours’
notice to the applicant to set aside the interim order.
[17.4] The main relief in paragraph (b) of the
notice of motion
[11]
essentially orders the respondent to deliver to the applicant any
computer data, copies and information obtained in terms of paragraphs
2.2 and 2.3 of the
ex parte
order, and directs the sheriff to hand over to the applicant the
copies of the computer data, copies and information obtained in
terms
of paragraphs 2.2 and 2.3 of the
ex parte
order.
[17.5] The order granted on 18 September 2015,
specifically paragraph 1.2 thereof, directs the sheriff to:
‘
provide the other copy to the Applicant for
the purposes of preparing further
affidavits in these
proceedings. . . .
’
(my
emphasis)
[17.6]
The furnishing of the seized information to the applicant was done
prior to the respondent having an opportunity to
be heard or resist
the order or to re-visit same.
[18]
In the answering affidavit,
[12]
the deponent submits that the order is:
[18.1] contrary to the accepted format of a search
and seizure order;
[18.2] is not interlocutory but final in form in
that it provides for information to be handed to the applicant for
purposes
of preparing further affidavits in these proceedings;
[18.3] is final in that it provides for the
applicant to be placed in possession of the respondent’s
confidential information
and thus renders nugatory any application to
set aside the order, as the harm has already been caused;
[18.4] amounts to an abuse of court procedure,
manifests the failure of the requirements relating to good faith and
the obligation
to furnish a full disclosure of all relevant
facts.
[13]
Analysis
[19] I
have had regard to the full set of affidavits filed in this matter
and I have considered the basis upon which the application
was
initiated. I have also considered the heads of argument filed by the
respective parties. However, for purposes of the judgement,
I do not
propose to go into the merits of the application or the grounds which
informed the order sought only to the extent to
which they are
relevant to the main challenge to the order granted. What I propose
to do is focus on the respondent’s main
challenge to the order,
namely the form of the order sought in the context of the purposes of
Anton Piller orders, the rights to
privacy as enshrined in the
Constitution, the right to access to court and the application of the
principles of
audi alteram partem
.
[20]
Ms Annandale
who appeared for the applicant acknowledged that
the order is ‘somewhat strange’. However, she agreed that
the crux
of the issue was whether the form of the order granted
vitiated the entire proceedings justifying the order being set aside.
[21]
She submitted that having regard to the decision in
Cometal-Mometal
SARL v Corlana Enterprises (Pty) Ltd
[14]
the following factors ought to
be considered by me as was done by Margo J, in deciding whether or
not to rescind the order:
‘
It seems to me that, among the
factors which the Court will take into account in the exercise of its
discretion to grant or deny
the relief to a litigant who has breached
the
uberrima fides
rule, are the extent to which the rule has been breached, the reasons
for the non-disclosure, the extent to which the Court might
have been
influenced by a proper disclosure in the
ex
parte
application,
the consequences from the point of doing justice between the parties,
of denying relief to the applicant on the
ex
parte
order, and
the interests of innocent third parties, such as minor children, for
whom protection as sought in the
ex
parte
application.’
[15]
[22]
In this matter the main complaints of the respondent are the
following:
[22.1] that it was deprived of the
audi alteram
partem
rule in that a final decision was made before it was given
an opportunity to deal with the relief obtained;
[22.2]
its
rights to privacy as
guaranteed in s 14
[16]
of the Constitution as well as
the rights of access to court as guaranteed by s 34
[17]
of the Constitution have been
rendered nugatory by the relief granted;
[22.3] the applicant has abused the
Anton Piller process.
[23]
Ms
Annadale
submitted that having regard to the factors set out in
the
Cometal
decision I ought not to set aside the order. She
submitted that if one has regard to the founding affidavit, the
intent was to
have the evidence preserved. This is borne out by the
allegations in the founding affidavit referred to earlier in this
judgment.
The tenor of the affidavit records that the evidence be
kept under seal pending the main application and seeks non-disclosure
of
the evidence.
[24] In
addition, she submits that the respondent does not indicate that
confidential information was obtained which prejudices
it or that
execution occurred outside the parameters of the order granted. The
third factor she acknowledged posed a problem for
the applicant as no
explanation is offered by the applicant as to the extent to which the
court might have been influenced by proper
disclosure. She submits
that the fourth factor is the one which weighs heavily in the
applicant’s favour against setting
aside the order, namely
doing justice between the parties. In support of this she alluded to
the fact that the execution of the
order has revealed evidence of
unlawful competition by the respondent, employees being solicited and
employed by the respondent,
clientele of the applicant being
solicited and also signed up, and intellectual property of the
applicant being found in the possession
of the respondent.
[25]
She submits that all that has occurred is that the applicant has
obtained the documents and data sooner than anticipated. She
submits
that as the end result would have been the same even if the order was
in the usual form, this court ought not to set aside
the order.
[26] I
accept that there is no complaint by the respondent that what was
seized was of a confidential nature or fell outside the
ambit of the
order granted. However, no explanation is provided by the applicant
as to whether the court might have been influenced
by full
disclosure. To simply say that ‘this court granted an order
like this before’ does not suffice. I am of the
view that the
possibility exists that had the applicant disclosed that it wanted
access before seeking the relief in the main application,
the court,
in the exercise of its discretion, may have required more to be
placed before it to justify such an order being granted
or may have
refused to grant such an order.
[27] Of
great concern to me, is that there are no allegations in the papers
which draw the court’s attention to the fact that
such an order
will be sought. In fact, quite the contrary impression is created,
especially as the allegations are in respect of
preserving and not
disclosing the evidence. Whether this is deliberate or
mala fide
,
I cannot conclude on these papers.
[28] I
agree with the submission that having regard to the allegations in
the founding affidavit, there is no factual basis for
the order
granted. In addition, in the absence of any explanation, I have no
alternative but to conclude that this was done in
breach of the rule
of disclosure in
ex parte
applications and the duty of good
faith.
The
fact that the end result may be the same does not in my view justify
not setting aside the order. The decision in
Cometal
was
pre-Constitution. Here one has a breach of ss 14 and 34 of the
Constitution, in addition to the duty of good faith in
ex parte
applications and the
audi altem partem
rule. Given the nature
of the breaches, it does not, in my view, behove an applicant to say
well the end result would have been
the same and we simply had access
sooner rather than later.
[29]
Given the purpose of Anton Pillar orders and the constitutionally
entrenched rights which have to be given recognition to,
th
e
is
conduct by the applicant cannot be countenanced. I agree with the
submission of
Mr Hunt
who
appeared for the respondent
,
that considerations of equity do not come into play where the breach
is so fundamental. Here one is not dealing with a reconsideration
of
the order granted- the respondent cannot be clothed with rights
ex
post facto
it was entitled to exercise before
access to the data and information was allowed.
[30]
Section 172(1) of the Constitution provides that once conduct is
inconsistent with the Constitution, a court must declare such
conduct
invalid to the extent of such inconsistency and make an order that is
just and equitable. It must thus follow that the
order must be set
aside and the status quo restored.
[31] In
Memory Institute SA t/a South African Memory
Institute v Hansen & others
,
[18]
Harms JA stated the following insofar as Anton Piller orders are
concerned:
‘
Anton Piller
orders are for the preservation of evidence and are not a substitute
for possessory or proprietary claims. They require built-in
protection measures. . .The goods seized should be kept in the
possession of the Sheriff pending the Court’s determination.
Since it is the duty of an applicant to ensure that the order applied
for does not go beyond what is permitted (something that
was not done
in this case) and since Musi J granted a rule
nisi
he was not empowered to grant, the setting aside of the rule had to
follow as a matter of course. . . .’
[19]
[32]
At 625 G-H he held:
‘
Another reason for disposing
of the case on the appellant’s version is to illustrate another
point and that is that interim
orders and rules
nisi
are not to be had simply for the asking. Courts should satisfy
themselves that a proper case has been made out, more so if the
subject is technical. The fact that a respondent may approach the
Court for a reconsideration of the Rule (Rule 6(12)(c) of the
Uniform
Rules of Court) and that it may be set aside on the return day should
serve neither as a sop nor as a soporific’.
[33]
When exercising its discretion to grant an Anton Piller order, a
court must consider whether the terms of the orders sought
are no
more onerous or far-fetching than is necessary to protect the
interests of the applicant. Willfulness or
mala
fides
does not need to be present or to be
found in the discharge of a rule
nisi
or an interim order, where the order was too widely framed. The
applicant bears the onus to establish why the order should not
be
discharged, where in fact, as in this instance, it went too wide.
[20]
[34] I
agree with the submission that the terms of an Anton Piller order
must not ordinarily be so wide as to give the applicant
access to
documents which the evidence does not show him or her to be entitled
to nor should it go further than strictly necessary
for the
preservation of critical evidence.
[21]
[35] In
this instance, the order allowed the applicant to access material
taken from the respondent’s hard drive, where no
case had been
made out for that relief and in circumstances where the terms of the
order went far wider than preserving evidence
pending the outcome of
proposed litigation. Consequently, in my view, this justifies the
setting aside of the order in question.
[22]
[36] In
The Reclamation Group (Pty) Ltd v Smit &
others
, Froneman J (as he then was) held the
following:
[23]
‘
The fact that access to the
premises of the respondents was obtained, that these premises were
searched for documents, that documents
were identified, examined and
removed, and that an inventory was made of the documents, cannot be
undone. The effect of the original
order in respect of those aspects
is final in nature.
What thus remains for “reconsideration”
are the following:
(1)
Whether the applicant used the
extraordinary
Anton Piller
procedure for a proper legitimate purpose and whether the order
should originally have been granted. If it appears that the applicant
used the procedure improperly or that the order should not have been
granted originally all that can be done in reconsideration
is to
order that the documents be returned to the respondent and to
penalize the applicant for its improper behavior via an appropriate
costs order…
’
[37] In
my view, even though the respondent was allowed to anticipate the
interim order on 24 hours’ notice, the effect thereof
was to
render its rights in this regard, nugatory as the applicant was
already in possession of a copy of the documents and data
seized. It
would not have served any purpose for the respondent to anticipate
the interim relief nor to apply for reconsideration
of the order. The
appropriate course of action was, as it has happened in this matter,
to apply for the order to be set aside.
[38] In
light of the fact that the applicant has obtained copies of the
documentation, and the order I propose to grant, it is only
appropriate that it be coupled with an order that the applicant and
the sheriff hand over to the respondent’s attorneys of
records,
all documents, data copied and retrieved pursuant to the execution of
the order on 21September 2015.
Costs
[39]
It is trite that the normal rule in relation to costs is that a
successful party is entitled to its costs. There are facts
placed
before me in terms of which I can depart from the normal rule
relating to costs, and consequently, should the applicant
be
unsuccessful, then it should be directed to pay the costs occasioned
by the application. In addition, unlike the facts in the
Audio
Vehicle
case, I find insufficient basis to issue a punitive costs
order, although the conduct of the applicant is questionable.
[40]
At the hearing of the matter both parties briefed senior counsel to
argue the application when it served before me on the opposed
motion
court roll. Given the nature of the matter and the fact that Anton
Piller orders are by their very nature complex and given
the fact
that constitutional issues were involved and were raised, it is my
view that the facts of this matter and certainly the
basis upon which
it was opposed justify the briefing of senior counsel.
[41] In
the premises for the reasons set out hereinbefore the orders I issue
are the following:-
[41.1] The interim order of 18 September 2015 is
set aside. The relief in the main application is refused.
[41.2] All materials and copies seized or made pursuant
to such order of 18 September 2015, are to be returned to the
respondent’s
attorneys of record forthwith.
[41.3] The applicant is directed to pay the costs
occasioned by the application including any reserved costs, such
costs are
to include the costs of Senior Counsel.
___________________
HENRIQUES
J
Case
Information
Date of
hearing
: 13
February 2017
Date of
judgment
: 22
March 2017
Appearances
Counsel
for Applicant
: Adv. A.
Annandale SC
Instructed
by
: Tate, Nolan
& Knight
15 Enninsdale Drive
Broadway
Durban North
(T) 031-563 1874
(F) 031-563 3920
(E) charmaine@tnk.co.za
Ref: C Schwenn/PN/SQ007001
Counsel
for Respondent
:
Adv.
C.P. Hunt SC
Instructed
by
: Hay &
Scott Attorneys
c/o NSG Attorneys
2
nd
Floor, Clifton Place
19 Hurst Grove
Musgrave
Durban
(T) 031-202 9751
(F) 031-202 0451
(E) tarryn@nsg.co.za
Ref: T. Lombard
[1]
Index 1, page 36, para 70(a)-(d).
[2]
Index 2, pages 122 – 127.
[3]
Shoba v Officer Commanding, Temporary Police
Camp, Wagendrift Dam & another; Maphanga v Officer Commanding,
South African
Police Murder and Robbery Unit, Pietermaritzburg
1995 (4) SA 1
(A) at 19E.
[4]
Universal City Studios Inc & others v
Network Video (Pty)
Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) and
National Director of
Public Prosecutions and another v Mohamed & others
2003 (4) SA 1 (CC).
[5]
Shoba supra
at 19.
[6]
Universal City Studios
supra
.
[7]
Rath v Reese
2007 (1)
SA 1999
(C) at 107H;
Mathias International
Ltd & another v Baillache
&
others
2015 (2) SA 357
(WCC) at 362E and
363D.
[8]
Memory Institute SA CC trading as SA Memory
Institute v Hansen & others
2004 (2) SA
630
(SCA) at 633.
Audio
Vehicle Systems v Whitfield & another
2007(1) SA 434 (C)
paras 18 and 24;
Mathias supra
paras 9-10;
Memory
Institute supra
para 3.
[10]
Index 1, pages 1-7.
[11]
Index 1, page 5.
[12]
Index 2, pages 131 – 163.
[13]
Index 2, page 136, para 10.
[14]
1981 (2) SA 412
(W).
[15]
A
t 414 G-H.
[16]
Section 14 of the Constitution reads as follows:
‘
Everyone has a right to privacy, which includes
the right not to have –
(a)
their person or home
searched;
(b)
their property searched;
(c)
their possessions
seized; or
(d)
the privacy of their
communications infringed.’
[17]
Section 34 of the Constitution reads as follows:
‘
Everyone has the right to have any dispute that
can be resolved by the application of law decided in a fair public
hearing before
a court or, where appropriate, another independent
and impartial tribunal or forum.’
[18]
2004 (2) SA 630 (SCA).
[19]
At 633 E–G.
[20]
Erasmus
:
Superior
Court Practice
(2 Ed), volume 2 at D825.
[21]
Audio Vehicle Systems v Whitfield &
another
2007 (1) SA 434
(C) para 22;
Sun
World International Inc. v Unifruco Ltd.
1998 (3) SA (C) 151 at 174D-E.
[22]
Audio Vehicle Systems
supra
paras 38 - 39.
[23]
2004 (1) SA 215
(SE) 218F-H.