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[2016] ZAFSHC 233
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Ntsoereng and Another v Sebofi and Another; In re: Sebofi v Ntsoereng (4518/2012) [2016] ZAFSHC 233 (7 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO : 4518/2012
In
the matter between:
TEBOHO
VINCENT NTSOERENG
1
st
Applicant
MAHOKOANE
ANGELA
NTSOERENG
2
nd
Applicant
and
ANDRIES
HENRY
SEBOFI
1
st
Respondent
A.
E.
FOURIE
N.O.
(SHERIFF)
2
nd
Respondent
IN
RE
:
ANDRIES
HENRY
SEBOFI
Plaintiff
and
TEBOHO
VINCENT
NTSOERENG
Defendant
JUDGMENT
BY
:
MURRAY
AJ
DATE
HEARD
:
DECIDED
ON WRITIEN ARGUMENT
DELIVERED
ON:
7
JULY 2016
[1]
This is an application for leave to appeal against Moeng, AJ's,
judgment of 19 March 2015, and for condonation for the late
filing of
the application. The First Respondent was the Plaintiff in the main
action and the First Applicant was the Defendant.
To obviate
confusion, they will be referred to as such throughout.
[2]
On 18 August 2015 the Court requested the parties to select a date
for this application to be heard, alternatively to submit
heads of
argument for the matter to be dealt with in chambers by Mocumie, J.
There was no response from the Applicants.
[3]
On 12 May 2016, after more than a year in which the Applicants,
despite being
dominus litis
in the application, made no
attempt to pursue or advance their application and failed to file
heads of argument despite several
requests to do so, the First
Respondent filed its heads in order for the application to be dealt
with in chambers. On
6 June 2016 the
Applicants' attorney of record withdrew for
lack of instructions - a
pattern which has characterized the
Applicants' conduct ever since the First Respondent issued summons
against the First Applicant
in 2012.
Factual
background
:
[4]
In November 2012 the First Respondent issued summons against the
First Applicant for payment of R130 000.00 due to him in terms
of a
contract concluded between them personally after the dissolution of
the close corporation of which they used to be members.
Because of
the First Applicant's failure to defend the claim, the First
Respondent obtained default judgment against him on 27
January 2013.
[5]
When the First Applicant did not comply with the judgment, the First
Respondent issued a writ of execution against his movable
property,
which yielded only a
nulla bona
return. The First Respondent
then filed a Rule 46(1)(a)(ii) application to have the First
Applicant's immovable property declared
specially executable.
[6]
It transpired during the Rule 46(1)(a)(ii) proceedings that the First
Applicant was married in community of property to the
Second
Applicant. Since the Second Applicant had a direct interest in
potential execution of the immovable property, and a right
to
respond, the First Respondent filed an application to have her joined
as a party to the Rule 46(1)(a)(ii) proceedings. On 17
October 2013
Monaledi AJ granted the joinder application by agreement between the
parties, and on 7 August 2014 Lekale J declared
the Applicants'
immovable property specially executable in terms of Rule
46(1)(a)(ii).
[7]
In order to prevent execution, the Applicants then applied for both
Lekale J's judgment and the order for the Second Applicant's
joinder
to be rescinded, and for the warrant of execution to be set aside.
They contended that an error common to the legal representatives
rendered the orders rescindable in terms of the Court’s
inherent powers under the common law.
[8]
The Applicants averred, firstly, that
both parties had laboured under an alleged
misapprehension that a writ of execution against immovable property
could be issued against the Second Applicant even though no
judgment
had been entered against her.
[9]
They contended, secondly, that by obtaining judgment against the
First Applicant in his personal capacity instead of against
T.V.N
Transport and Projects CC, the First Respondent had committed fraud.
This allegation was abandoned during the hearing of
the application
for rescission, however.
[10]
On 19 March 2015 Moeng AJ held that there was no basis for the
rescission of Lekale J's judgment which declared the applicants'
immovable property specially executable, or for undoing the Second
Applicant's joinder, and dismissed the application with costs.
[11]
The
Applicants then filed the present application for leave to appeal
against Moeng AJ's judgment. This they did in May 2015. Since
then
they have made no effort whatsoever to pursue the application. Quite
the contrary: by deliberate inaction they have prevented
it
from
being enrolled, argued or finalised for more than a year now.
The said conduct, in my view, clearly
demonstrates
their lack of a
bona
tide
intention
to pursue the appeal. After all, the longer the finalisation of the
Application for leave to appeal is delayed, the longer
the execution
of the warrant against their property is stayed.
[1]
Condonation:
[12]
Moeng AJ's judgment was delivered on 19 March 2015. Despite the last
date to apply for leave to appeal in terms of Rule 49
having been 9
April 2015, however, the Applicants only filed for such leave on 12
May 2015, that is, 22 court days late. They therefore
need to be
granted condonation before the application for leave to appeal can be
heard or considered.
[13]
It
is trite that condonation of the non-observance of the court rules is
by no means a mere formality.
[2]
In
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[3]
,
for
instance, the Constitutional Court held that an applicant for
condonation must give a full explanation for the delay which
must
not only cover the entire period of delay but must also be
reasonable. It is for the applicant to explain the reasons for his
non-compliance with the time limits
[4]
and to satisfy the Court that there is sufficient cause for excusing
him from complianc
e
[5]
.
[14]
Where condonation needs to be asked, as
in casu,
a court has a
discretion which is to be judicially exercised with regard to all the
circumstances of the case. This Court therefore
has to keep in mind
not only the Applicants' delay in filing their application for leave
to appeal, which they ask to be condoned,
but also their delay in
prosecuting the said application
in
the context of their
prospects of success on the merits of the case.
[15]
The principles upon which a court exercises its discretion to condone
have been stated as follows:
"in
essence it is a question of fairness to both sides. In this enquiry,
relevant considerations may include the degree of
non-compliance with
the rules, the explanation therefor, the prospects of success on
appeal, the importance of the case, the respondent's
interest in the
finality of his judgment, the convenience of the court, and the
avoidance of unnecessary delay in the administration
of justice."
[16]
The First Applicant's only explanation of the delay was to aver that
neither he, nor the attorney who had represented him in
the
rescission application, had been made aware of Moeng AJ's judgment.
He alleged that no-one had been notified of the intended
delivery of
the judgment, which is highly unlikely, and that he only became aware
of the judgment on 23 April 2015 when he learnt,
for the first time,
of the intended sale in execution of his property.
[17]
Instead
of a full explanation for the delay, the Applicant merely vaguely
refers to
"those
attorneys" and "the said attorneys"
with
whom he then allegedly arranged a consultation on 28 April
2015
before he decided to terminate their services and to entrust the
matter to his
"current
attorneys of record",
whoever
they might be. In
Massey-Harris
Co
(SA)
Ltd
v
Ekstee
n
[6]
the
court
held
that
where the delay is due, or allegedly due, to the mistake or default
of a third party, an affidavit by such third party needs
to be
annexed. But in the present case not one of the Applicants'
unidentified attorneys, past or current, has provided a confirmatory
affidavit. It is not the first time, furthermore, that the
First Applicant has allegedly not received a court order, pleading,
application papers or correspondence.
[18]
Even though courts are reluctant to penalise a blameless litigant on
account of his attorney's negligence, the Appellate Division
has
pointed out that:
"There
is a limit beyond which a litigant cannot escape the result of his
attorney's lack of diligence or the insufficiency
of the explanation
tendered. To hold otherwise might have a disastrous effect upon the
observance of the rules of this court. Considerations
ad
miseracordiam
should
not be allowed to become an invitation to laxity. The attorney, after
all, is the representative whom the litigant has chosen
for himself•.
'
[7]
[19]
In the instant case the Applicants are far from blameless, and the
fact that they have already had six sets of attorneys is
a clear
indication that the attorneys are not the only ones to blame for the
repeated delays in finalising the matter. A demonstration
of the
Applicants' flagrant disregard for court rules and orders is that Van
Zyl J, pursuant to numerous postponements, had to
order that the
First Applicant be barred from pursuing the first rescission
application against the default judgment granted against
the First
Applicant personally should the Applicants fail to pay, within a
specified time, the costs due to the First Respondent
in terms of a
previous court order. They did not pay.
[20]
From
the case law it has appeared that the cumulative effect of a flagrant
breach of the rules of Court in
more
than one respect and the absence of an acceptable explanation may be
such that an application for condonation will not be granted,
regardless of the prospects of success
[8]
.
The Applicants have provided no
acceptable explanation for this delay, just as they did not
do
regarding previous delays.
[21]
An
important consideration in deciding whether to grant condonation or
not,
is
whether
the
appeal
is
frivolous
or
vexatious,
or has been noted not with the
bona
fide
intention
of seeking to reverse the judgment but for some indirect purpose,
e.g. to gain time or harass the other
party.
[9]
[22]
It
has been held, too, that a long delay will not be condoned if it is
clear that the applicant had not
"throughout
desired to prosecute these appeals".
[10]
Such desire must appear from the
applicant's
conduct regarding the application for leave to appeal. In my view it
is more than reasonable to infer, more than a year
after their
application was filed, that the Applicants have no real intention to
pursue their appeal.
[23]
Far
from facilitating the speedy adjudication of their application, the
Applicants have frustrated and obstructed the process by
failing to
abide by the court rules (e.g. by filing a defective, ambiguous
application for leave to appeal and
by
failing to adhere to prescribed time periods); by failing to comply
with court orders (such as to pay the costs incurred during
past
litigation);
by failing to respond to correspondence from the court (such as the
request for dates and/or written heads of argument
to enable Mocumie
J to decide the application for leave to appeal) or from the
Respondents (for instance to request compliance
with court orders or
to arrange dates for filing heads); by failing, for months on end, to
file heads of argument in order that
the matter can be finalised; by
pretending not to have received court orders or correspondence
despite documentary evidence to
the contrary; and by blaming and
firing various of their past sets of attorneys, some on the day of
the trial, only to reappoint
the same ones
as
soon as a postponement was refused.
[11]
[24]
The Applicants have thus managed to manipulate the system to gain
three years of 'grace' in which the First Respondent has
been unable
to execute its 2013-judgment or to recover the considerable legal
costs that have accumulated
since
then, despite having been
successful in every court proceeding in this matter.
[25]
The Applicants' blatant disregard for the court rules appear from the
way they have conducted the various applications in this
matter. They
filed two applications for rescission, for instance: the first
one on 28 January 2014 a year after default judgment
had been granted
against the First Applicant personally on 17 January 2013 (which
judgment still stands); and the second one against
Lekale J's
judgment which they filed 49 court days after the
judgment and 37 court days after the writ of execution
had been
executed by attaching the property. Their replying affidavit in the
application which lead to Moeng AJ's judgment, was
filed 54 court
days late, without any application for condonation, a week before the
application was heard. In view of their past
conduct and their wilful
procrastination since the late filing of this application for leave
to appeal more than a year ago, I
have no doubt that the Applicants'
real aim is merely to gain time.
[26]
Where an applicant claims the indulgence of condonation, furthermore,
it is for him to show that the respondent will not be
adversely
affected thereby to any substantial degree, and that, even if he were
to be so affected, other considerations apply which
would persuade
the Court to grant the indulgence soug
h
t.
[12]
The First Applicant has made no attempt to show that the First
Respondent will not be prejudiced by the
late
filing and delayed finalisation of
this
application for leave to appeal.
[27]
The
late filing of a notice of appeal particularly affects a respondent's
interest in the finality of his judgment.
In
casu
almost
two
months
had
elapsed
before
the
application
for
leave
to
appeal was filed. It is only reasonable to hold that, once the
time
for noting an appeal has lapsed, a respondent is
prima
facie
entitled
to adjust his affairs on the premise that his judgment is safe.
[13]
[28]
Where
such late filing is further exacerbated by a subsequent failure, for
more
than
a year, to pursue the application for leave to appeal, it indeed
'induces
a
reasonable
belief that the order had become unassailable'
and
that the First Respondent
'is
entitled to assume that the [Applicants have] accepted the finality
of the order and does not intend to pursue the
matter
further'.
[14]
[29]
I
respectfully agree with the court in
Van
Wyk v Unitas Hospital,
supra,
furthermore,
that to grant condonation after such an inordinate delay and in the
absence of a reasonable
explanation,
'would
undermine the principle
of
finality
in litigation and cannot be in the interests of justice'.
[15]
[30]
The final reason to refuse condonation in this matter, and which is
also fatal to the application for leave to appeal
itself, is
that the Applicants in my view have no reasonable prospect of success
on appeal.
Application
for Leave to Appeal:
[32]
In addition to the absence of condonation, the application for leave
to appeal must fail on the merits, too.
[33]
It
is
trite
that in terms of Rule 49(1)(b) the Applicants are bound to the
grounds
raised in
their
application for
leave
to
appeal.
The
rule
demands, in peremptory terms
[16]
that such grounds be
clearly
and succinctly set out, in clear and unambiguous language. Its
purpose is to enable the Court and the respondent to be fully
informed of the case the applicant seeks to make out and the
respondent is to meet in opposing the application for leave to
appeal.
[17]
The Applicants are
required, furthermore, to indicate whether they are
relying
on
errors
of
fact
or on errors of
law.
[34]
The grounds of appeal set out in the application
in casu,
are
anything but clear and unambiguous. The Applicants averred, first of
all, that
"the
court's
dismissal
of
the
application
was
both
legally
and factually
incorrect and was
a
misdirection".
The grounds on
which the Applicants seek to attack the alleged 'misdirection' are
set out as follows:
"2.1.1
the
above Honourable Court misdirected itself by
finding that the First
Applicant's liability, to
the
First Respondent, is
a
joint estate liability whereas,
by law factually such
a
liability is incurred in the First
Applicant's ordinary activities of
business and
is,
thus, not
a joint estate
liability;
2.1.2
the mistake common
to
both parties, herein, as
a
mistake of
law cannot ground
a
rescission of
judgment;
2.1.3
the applicant of the contractual principle of consensus
ad
idem
to the facts of this case was both legally and factually
incorrect,
as
in this case,
the parties were of
one mind when they misconceived the
remedy."
[35]
Patently this Notice of Application for Leave to Appeal does not
comply with the peremptory requirements of Rule 49(1)(b).
The
Applicants do not distinguish between errors of fact and errors of
law and, far from being clear and unambiguous, the 'grounds'
on which
they purport to rely and by which they are bound, are all but
incomprehensible.
[36]
As Mr Cilliers for the First Respondent argued, what the Applicants
appear to contend, is that the Court in the application
for
rescission misdirected itself by not finding
" that the
liability incurred by the First Applicant towards the First
Respondent in an amount of R130,000.00 does
not
bind
the
joint
estate
and
cannot
be
enforced
against
the
joint
estate".
Applicable
test for leave to appeal
:
[37]
S 17 of the Superior Courts Act, Act 10 of 2013, provides for a
new, stricter test for leave to appeal:
"
17
.
Leave to
appeal.
(1)
Leave to appeal may only 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
con
s
ideratio
n
."
[38]
Prior to the promulgation of Act 10 of 2013, the test was lower in
that it merely required of an applicant to indicate
that there is a
reasonable possibility that another Court may come to a different
findin
g
.
[18]
That is
no
longer
the case,
however.
The new
higher
test now requires a reasonable prospect of success, not merely a
possibility. To determine whether there is such a prospect
in the
instant case, one needs to examine the validity of the Applicants'
allegations of a misconception of the facts and the law
in Moeng AJ's
judgment.
[39]
The Applicants seem to aver that the First Applicant's debt could not
bind the joint estate since it was incurred in the ordinary
course of
his business and could therefore not lead to execution of the
immovable property in the joint estate. First of all, that
averment
is based on the Applicants' own misconception of the legal position
regarding the liability of a joint estate in marriages
in community
of property and the meaning of s 15(6) of the Matrimonial Property
Act, Act 88 of 1984 ("the Act"). Secondly,
it disregards
the fact that the First Applicant was sued in his personal capacity
(in a summons to which no plea was filed) and
that judgment was
obtained against him in his personal capacity (which judgment still
stands). And that, as such, he is married
in community of property
and the joint estate is liable for his debts.
[40]
S 14 of the Act determines that spouses in a marriage in community
of property have
equal powers
regarding the contracting of debts which bind the joint
estate and regarding the management
of the joint estate.
[41]
S 15 of the Act determines that, with the exception of certain acts
specified ins 15(2) and s 15(3), such as alienating or
mortgaging
immovable property belonging to the joint estate, either of the
spouses may without the other's consent, perform any
juristic act
with regard to the joint estate.
[42]
And
even where a spouse bound the joint estate contrary to the provisions
of s 15(2) and (3) or acted without the required consent,
s 15(9)
protects
bona
fide
innocent
third parties who contract with such a spouse without knowing that he
is
married
in community of property and lacked consent for the applicable
transaction. In such an instance, consent will be deemed
to have been
given.
[19]
[43]
S 15(6) provides for a spouse married in community of property to be
exempted from having to obtain the consent of his spouse
for certain
of the transactions specified in s 15(2), such as binding himself
as surety, if he concludes
such
transactions in the ordinary course of his
business. It does not relieve his spouse or the joint estate
from
liability if he incurs debts in doing so, as the Applicants seem to
allege.
[44]
S
17(2) of the Act determines that a party to legal proceedings
instituted or defended by a spouse may not challenge the validity
of
the proceedings on the ground of a want of the required consent.
And
s
17(5) determines that where a
debt
is
recoverable
from the joint estate, the spouse who incurred the debt, or both
spouses jointly may be sued therefore.
[20]
Such spouse may be sued
in
his own name and
it
is
not
necessary for the other spouse to
be
joined
in
the
action.
[21]
Where
judgment
is
obtained
by
a
creditor against one of the spouses, they are joint debtors and in
the event of non-payment, execution can be levied against the
joint
estate.
[22]
[45]
As Moeng AJ pointed out in his judgment, that is because one of the
proprietary consequences of a marriage in community of
property is
that. during the subsistence of such a marriage, the liabilities
of either spouse become
the joint
liability of both spouses and therefore of
the joint estate.
[46]
A
case in point is the decision in
BP
Southern Africa (Pty) Ltd v Viljoen,
[23]
in which the wife also contended that she was not liable for
the
debts
incurred in
the
ordinary course of
his
business
by her husband to whom she was married in community of property
because the applicant never sued her and had therefore
never obtained
judgment against her. Haneke J, however, held that
the
wife was liable for at least half the amount of the default judgment
against her husband irrespective of
the
fact that judgment had not been obtained against her in
person.
[47]
There was therefore no common mistake between the parties which
rendered Lekale J's judgment or the joinder order rescindable
as the
Applicants alleged. The law is clear: if one spouse in the marriage
in community of property incurs debts, even without
the consent of
the other spouse, either of the spouses can be held liable for such
debt, since it is regarded as one incurred by
the joint estate.
[48]
The order declaring the Applicants'
property executable was indeed enforceable
against
the joint estate. Accordingly the warrant of execution is one that is
enforceable against the immovable property of the
Applicants' joint
estate and there is no ground for it to be set aside.
[49]
Since the Second Applicant would have had a direct interest in the
execution of the immovable property, she was correctly joined
as a
party to the Rule 46(1)(a)(ii) proceedings, and there would be no
justification for rescinding that order either.
[50]
There is therefore no merit in the averment that Moeng AJ misdirected
himself in dismissing the application to rescind either
the joinder
order, or Lekale J's judgment which declared the immovable property
of the joint estate executable.
[51]
The application for leave to appeal against Moeng AJ's judgment
consequently has no reasonable prospect of success on the merits
on
the first leg of the new test as formulated in s 17(1)(a)(i) of Act
10 of 2013 and I am not at liberty to grant leave to appeal
on that
ground.
[52]
Regarding the alternative ground for granting leave stipulated in s
17(1)(a)(ii) of Act 10 of 2013, namely that of "a
compelling
reason"
to grant leave, the Applicants appear to contend
that s 15(6) read with s 17(5) of the Act have not been addressed
before and that
that would constitute the required
'compelling
reason'
to justify granting leave to appeal based on the second,
alternative leg of the new test. This contention is not made in the
grounds
of appeal set out in the Applicants' notice and to which they
are bound). It, furthermore, has not merit.
[53]
After serious consideration of all the circumstances and .facts of
this protracted case, therefore, I am unable to find either
a
reasonable prospect of success on appeal or any
"compelling,
or truly convincing, reason",
which could justify the
granting of leave to appeal.
[54]
In view of the Applicants' flagrant disregard of the court process
and the inordinate delay in the finalisation of this matter
which
that has caused, I agree with Mr Cilliers that a punitive costs order
would be justified.
WHEREFORE
the following order is made:
1.
Condonation is refused and the application for leave to appeal is
dismissed with costs.
2.
The Applicants are to pay the said costs on an attorney and client
scale.
3.
The Second Respondent is to see to service of a copy of this order
upon the First and Second Applicants.
__________________
H
MURRAY, AJ
On
behalf of the First Respondent :
Adv.
H J Cilliers
Instructed
by:
T
O'Reilly
Symington
& De Kok Attorneys
1698
Nelson Mandela Avenue
BLOEMFONTEIN
On
behalf of the Applicants :
Mr
R Coetzee
Steenkamp,
De Villiers & Coetzee
44
Krause Street
Oranjesig
BLOEMFONTEIN
[1]
Rule
49(11)
determines
that
where
an
application
for
leave
to
appeal
against
or
to
rescind
an
order
has
been
mad
e
,
the
operation
and
the
execution
of the
order
in
ques
t
ion
shall
be automatically suspended,
pending
the
outcome
or
decision
of
such
appeal
or
application,
unless
the
Court
which
gave
such
order,
on
application
of
a
party
otherwise
directs.
[2]
Uitenhage
Transitional
Local
Council
v
South
African
Revenue
Service
2004(
l)
SA
292
(SCA)
at
297H
-
J.
[3]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477 E
[4]
Yunnan
Engineering
v
Chater:
2006(5)
SA
571
(T)
at
578H-J;
Aymac
CC
v
Widgerow
2009(6)
SA
433
(W)
at
441A.
[5]
Uitenhage
Transitional
Local
Council
v
South
African
Revenue
Service,
2004
{l)
SA
292
(SCA)
at
297
H
-
J; Shaik
v
Pillay,
2008 (3) SA
59
(N)
at 61 H
[6]
1932 (OPD) 29.
[7]
Shaik
v
Pillay,
supra,
at
61
I-
62
C;
Theron
v
AA
Life
Assurance
Association Ltd
[1995] ZASCA 61
; ,
1995
(4)
SA
361
(A)
at
365 B
[8]
Blumenthal
v
Thompson
NO,
1994
(2)
SA
118
(A)
at
121
I
-
J
Where
it
is
stressed
that
this
applies
even
where
the
blame
lies
solely
with
the
attorney;
Shaik
v
Pillay,
2008
(3)
SA
59
(N)
at
62
E
[9]
Beecham
Group
Pie
v
South
African
Druggests
Ltd,
1987
(4)
SA
869
(T)
at
865
D;
Lubambu v Presbiterian Church
of
Africa,
1994
(3)
SA
241
(SE)
at
245
H;
N
v
Government
of
the
Republic
of
South
Africa
(No
3),
2006
(6)
SA
575
(D)
at
580
A
[10]
Van Wyk v Unitas Hospital,
supra,
at
477 E- G
[11]
In
Take
&
Save
Trading
CC
v
Standard
Bank
of
South
Africa
Ltd
2004(4)
SA
1
(SCA)
the
Court
held
that
Mone
of the oldest tricks in the book is the practice of
some
legal
practitioners, whenever the shoe pinches, to withdraw from the
case
(and
more often than not to reappear at a later stage),
or
of
clients to terminate the mandate (more often than not at the
suggestion of the practitioner), to force the Court to grant
a
postponement
whose party is then unrepresente
d
.
Judicial
officers
have
a
duty
to
the Court system, their
colleagues,
the
pub
l
ic
and
the parties to ensure that this abuse is curbed by, in suitable
cases, refusing
a
postponement.
Mere withdrawal by
a
practitioner
or the mere termination of
a
mandate
does not, contrary to popular relief, entitle a party to
a
postponement
as of right."
[12]
FiMbro Furnishers (Pty) Ltd v Registrar of Deeds,
Bloemfontein, l985 (4) SA 773 (A) at 790 C
[13]
Cairn's Executors v Gaam,
1912 AD 181
at 193; Napier v Tsaperas,
1995 (2) SA 665
(A) at 671 C
[14]
Van Wyk v Unitas Hospital,
supra,
at
479 H- 480 A
[15]
Van Wyk v Unitas Hospital,
supra
,
at
480 A- B
[16]
Songono v Minister of Law and Order,
supra,
at
395 J - 396 A
[17]
Songono v Minister of Law and Order,
1996 (4) SA 384
(E) at 385 I -
J
[18]
State v Ackerman, 1973 (I) SA 765 (A)
[19]
Distillers Corporation Ltd v
Modise
2001
(4)
SA
1071
(O
)
at[5]
on
1075H/1-U
and
[8]
and
[9]
at
1077E-F
[20]
Zake v Nedcor Bank Ltd 1999(3) SA 767 (SE) at 770.
[21]
Zake v Nedcor,
supra.at
771.
[22]
Strydom v Engen Petroleum Ltd 2013(2) SA 187 (SCA) at [45] at 202.
[23]
2002 (5) SA 630
(O)