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
>>
2016
>>
[2016] ZAGPPHC 625
|
|
BASF Counting Services (Pty) Ltd) v Tyob N.O. and Another (47581/2014) [2016] ZAGPPHC 625 (25 April 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
25/4/2016
Case
Number: 47581/2014
BASF
COUTING SERVICES (PTY)
LTD APPLICANT
and
MAHOMED
MAHIER TYOB N.O.1ST RESPONDENT
BHIDISHI
INVESTMENTS
CC 2ND
RESPONDENT
IN
RE
MAHOMED
MAHIER TYOB
N.O. 1ST
PLAINTIFF
BHIDISHI
INVESTMENTS
CC 2ND
PLAINTIFF
and
BASF
COUTING SERVICES (PTY)
LTD DEFENDANT
JUDGMENT
STRYDOM
AJ:
1.
This is an
application for rescission of a default judgment,
[1]
granted by his Lordship Mr Justice de Vos on
11
November 2014
,
in
terms of
Rule
31(2)(b)
of
the Uniform Rules of Court.
[2]
2.
The Applicant was previously a tenant of the building, owned by the
Second Respondent, in terms of a written lease agreement
(hereafter
"the Agreement" ).
2.1.
The Applicant alleged that it cancelled the Agreement, upon the
Respondents repudiation, where after it vacated leased premises.
2.2.
Subsequently,
the Second Respondent became subject to business rescue proceedings
as envisaged by Chapter 6 of the Companies Act,
2008
[3]
(hereafter
"the
Companies Act''),
and
the First Respondent was appointed as the Business Rescue
Practitioner (hereafter
"the
BRP")
of
the Second Respondent.
2.3.
The
Respondents hereafter issued summons against the Applicant due to
alleged repudiation of the Agreement by the Applicant. The
repudiation is, according to the Respondents particulars of claim,
based upon the vacation of the lease property by the Applicant
at the
end of
August
2013
and
the Applicant's failure to pay any amount of lease beyond the latter
date.
[4]
2.4.
The
Respondents claimed payment for the lease from 1 September 2013 to
November 2013 (which amounted to
R421,
172. 91)
and
damages in the amount of
RS,
887 881. 98,
which
amount represented the remainder of the lease period.
[5]
The Respondents took Default Judgment on the aforesaid date for the
amount of
R421,
172. 91
and
the remainder of its claims were postponed
sine
die.
IN
LIMINE
Leave
to institute proceedings.
3.
The
Applicant applied in terms of
section 133(1)
(b) of the
Companies Act
that
I should grant leave to them to institute this application
against the Respondents.
[6]
3.1.
Section 133(1)(a)
and (b)
of the
Companies Act provides
that,
during business rescue proceedings, no legal proceedings against the
company under business rescue may be commenced or proceed
with,
except
with the
written consent of the ERP,
or
the
leave of the Court,
upon such terms the Court finds suitable.
3.2.
It is
common
cause
that
prior to lodging this application, the Applicant sought the consent
of the First Respondent to institute this application.
[7]
Despite not responding at all to the Applicant's request the First
Respondent, as deponent of the Respondents opposing affidavit,
testified as follows:
[8]
"
I
have no objection for the court to grant consent to proceed with the
application.
"
3.3.
The First Respondent failed to give any reason why he failed to
respond to the Applicant's aforesaid request. Accordingly I
view his
as a deliberate delaying tactic.
3.4.
As indicated above, it is further
common cause
that the
Company went into business rescue after the Applicant allegedly
cancelled the Agreement. The First Respondent was the only
person who
could have consented to the institution of the action on behalf of
the Second Respondent after the latter Close Corporation
went into
business rescue. The First Respondent obtained judgment (for a
portion of the claim), instituted against the Applicant,
before his
Lordship, Mr Justice de Vos. The judgment of the court is not however
final, to the extent that it is not appealable.
The Applicant was
first required to seek to set the judgment aside, before it would
have been entitled to appeal against either
my judgment and
I
or
the judgment of my brother de Vos. The legal proceedings, having been
institute by the First Respondent on behalf of the Second
Respondent
against the Applicant, are accordingly not yet finalised. In view
thereof I am of view that the Applicant did not need
to obtain the
written consent of First Respondent before it was entitled to
institute these proceedings.
4.
As however as indicated above, the Applicant applied for leave to
institute these proceedings. Accordingly, notwithstanding the
aforesaid, I
hereby grant leave to the Applicant,
as
requested, to proceed with this application. I will deal with the
cost in regard hereto. hereunder.
Objection
of non-joinder
5.
Ostensibly
on the basis of a special defence of Non-joinder against the
Applicants' application, the Respondents submitted that
the
Applicants'
"
application
is fatally flawed due to the fact that the Applicant has failed to
give notice to all interested parties of the application.
"
[9]
The Respondents further submitted that I should dismiss this
application solely with reference to the following consideration:
[10]
"1.6
The relief that the Applicant seeks in the notice of motion, will
affect all of the 1st Respondent's creditors, and as such the
Companies Act 71 of 2008
, specifically requires that notice of this
application should be given to all effected parties, inter alia, all
of the Second Respondent's
creditors. This was clearly not done and
the peremptory provisions of the
Companies Act have
not been adhered
to."
5.1.
In terms of
Section 145(l)(a)
of the
Companies Act each
creditor of
the company, under business rescue proceedings, is entitled to notice
of each court proceedings concerning the company.
5.2.
Regulation 125(2)
of the regulations to the
Companies Act however
, in
contradistinction to the submission of the Respondents, placed the
obligation on the
BRP
to give notice to a person who is
entitled thereto in terms of the latter section.
5.3.
It follows accordingly that the only persons the Applicant was
required to give notice to were the FIRST and SECOND RESPONDENT.
5.4.
It was the obligation of the First Respondent to give notice to the
creditors of the Second Respondent of the legal proceedings
after the
Applicants delivered this application for rescission on him. The
manner in which such notice should be given by the
BRP
is
stipulated in
Regulation 145(2)(a)
and (b). No requirement is placed
on any other party to give such notice to creditors of a company in
business rescue.
6.
On such an express imperative duty placed upon the
BRP,
I
frown upon his submission that the Applicant was required to notify
the
Second Respondent's creditors
of this application. The
First Respondent knew or should have known fully well that this
obligation was placed upon him and not
the Applicant. Making a
directly opposite submission is a deliberate attempt to mislead the
court.
7.
It follows that the Respondents
in limine objection
should be
dismissed with cost. I will deal with the issue of cost hereunder.
Requirements
in terms of
Rule 31(2)(B)
2
00%">
8.
It is trite
law that in order to succeed with an application in terms of
Rule
31(2)(b)
an applicant is required to demonstrate:
[11]
8.1.
That the judgment was granted by default by a court, and;
8.2.
That the default of the Applicant was due a failure to enter an
appearance to defend or a plea;
8.3.
That the application was lodged within 20 days after the Applicant
obtained knowledge of the default judgment, failing which
a
application for extension of time or condonation should be made;
8.4.
That the Applicant has good
"good cause"
for the
rescission to be granted.
9.
Three requirements are normally set for a court to conclude that
good
cause
exists for granting of rescission of a default judgment:
9.1.1.
The Applicant must give a
reasonable explanation for the default;
9.1.2.
The Applicant must show that the application was made
bonafide ;
9.1.3.
The
applicant must show that he has a
bona
fide
defence,
which
prima
facie
has
some prospects of success.
[12]
10.
The
approach of the court in determining an application for rescission is
however not to consider the aforesaid requirements individually,
to
the extent that if one of the requirements were not fully met, the
application should be dismissed. Accordingly authorities
emphasize
that it is unwise to give a precise meaning to the terms
good
cause.
In
this regard it is sufficient for the applicant to set out facts that
would constitute a defence at the trial.
[13]
Furthermore a good defence can compensate for a poor explanation.
[14]
Default
judgment & 20 days requirement
11.
It is
common cause that Respondents obtained default judgment against the
Applicant. The applicant gained knowledge of the default
judgment on
27 November 2014,
[15]
and
lodged the application on 18 December 2014.
[16]
12.
It follows that the Applicant's application was brought within the
required 20 days time period.
Explanation
for default
13.
The
Applicants' explanation for failing to enter an appearance to
defend
[17]
can be summarised
as follows:
13.1.
The Applicant and the Second Respondent entered into a written lease
agreement in terms of which the Applicant's chosen
domicilium
citandi et executandi
was the physical address of the leased
property. Due to a
bonafide omission
the Applicant failed to
change its later domicilium address. The Respondents chose,
notwithstanding knowledge that the Applicant
vacated the lease
premises several months earlier, to serve its claim against the
applicants on the Applicants chosen
domicilium citandi et
executandi.
13.2.
To say the least, this is
an utterly poor e
xplanation.
Firstly the Respondents cannot be blamed for the Applicant's
omission. They where fully in their right to service summons on the
Applicant's chosen address.
13.3.
Having regard to the background information in respect of the dispute
between the parties, I have no doubt that in the event
the
Respondents claim came to the attention of the Applicant, it would
have defended the action. It however also appears to me
that
Respondent (correctly) suspected that the Applicant failed to note
that it did not change its chosen domicilium address. My
impression
is fortified by the emphasis in the opposing papers by the
Respondents of the Applicant's lack of particularity and
vagueness
of, and explanation for its default to deliver its Notice of
opposition, considered together with the Respondents
in limine
objections.
13.4.
The Respondents however, although admitting defects to the leased
property raised by the Applicant, steered away from addressing
these
issues.
14.
The Respondent's counsel urged me to dismiss the Applicants'
application due to the lack of proper explanation by the Applicant
how it came about that it failed to enter notice of appearance.
14.1.
To this
extent my attention was invited to a judgment by his Lordship, Mr
Acting Justice Louw on 5 October 2014 in the unreported
matter of
Noble
Mining & Machinery Company Ltd v Leseka Resource Management
CC
and Two
others.
In
this matter the learned judge found that service on the domicilium
address of a party, by affixing a it to the principal door,
was
sufficient.
[18]
My brother
Louw relied on the authority of
Van
der Menve v Bonaero Park (Edms) Bpk
[19]
for finding that:
"It
is the obligation of the Defendant to change the domicilium citandi
et executandi address or to change its registered address
and
accordingly I find that the service at the address referred to in the
summons and the return of service was good service on
the Defendant."
14.2.
This finding is agreement with authority and in my view correct. It
was however not raised by the Applicant that service of
the
Respondents claim on it was defective. This judgment is further not
authority for the proportion that an application for rescission
can
be
dismissed solely on the ground of a poor explanation by the
applicant /or his default.
14.3.
As the
Court stated in
Zeeland
v Milborough
[20]
a
good
defence may compensate
for a poor explanation, and
"an
measure of flexibility is required in the exercise of the Court's
discretion"
in
determination of whether a good defence has been raised.
MERITS
OF APPLICANTS DEFENCE
Respondents
cause of action
15.
The
Respondents cause of action against the Applicant was based on
acceptance of an alleged repudiation of the Agreement by the
Respondents after the Applicant vacated the leased property at the
end of
August
2013
failed
to make any payment beyond this date.
[21]
16.
The
defence
of the Applicant
against the claim of the Respondents is that it
cancelled
the Agreement,
by
written Notice on 20 June 2013, due to the Second Respondent's
repudiation of the Agreement after the Respondents failed to complete
the Building and maintaining the Lease property in a proper condition
in order for the Applicant to conduct his business. The Counsel
for
the Applicant argued that in the event that a party by conduct
demonstrates that it do not intent to perform in terms of the
agreement, this conduct amounts to repudiation and the Applicant was
accordingly not required to rely on the terms of the agreement
in
order to accept the repudiation of the Second Respondent and
thereafter cancel the agreement.
The
doctrine of repudiation
17.
The
Doctrine of repudiation
[22]
has been defined by the Court on numerous occasions and can be
summarised as follows:
[23]
17.1.
In
Schlinkmann
v Van der Walt
[24]
repudiation
was defined as follows:
"Repudiation
is in the main a question of the intention of the party alleged to
have repudiated. As was said by Lord Coleridge
LCJ in Freeth v Burr
(1874) LR 9 CP at p 214:
'the
true question is whether the acts or conduct of the party evince an
intention no longer to be bound by the contract',
a test which was
approved by the House of Lords in Mersey Steel Co v Naylor
(1884) 9
AC 434.
In Re Rubel Bronze and Metal Co and Vos [1918/ 1 KB at p 322
McCardie J said as follows:
'The
doctrine of repudiation must of course be applied in a just and
reasonable manner. A dispute as to one or several minor provisions
in
an elaborate contract or a refusal to act upon what is subsequently
held to be the proper interpretation of such provisions
should not as
a rule be deemed to amount to repudiation
. . .
But, as
already indicated, a deliberate breach of a single provision in a
contract may under special circumstances, and particularly
if the
provision be important, amount to a repudiation of the whole
bargain... In every case the question of repudiation must depend
on
the character of the contract, the number and weight of the wrongful
acts or assertions, the intention indicated by such acts
or words,
the deliberation or otherwise with which they are committed or
uttered, and the general circumstances of the case.'
To
this I would add only that the onus of proving that the one party has
repudiated the contract is on the other party who asserts
it."
17.2.
In
Inrybelange
(Edms) Bpk v Pretorius
[25]
and
Van
Rooyen v Minister van Openbare Werke en Gemeenskapsbou
[26]
the
Appellate Division approved of the aforesaid passage, together with
the short test for repudiation articulate
Street
v Dublin:
[27]
"The
test as to whether conduct amounts to such a repudiation [as
justifies cancellation] is whether fairly interpreted it
exhibits a
deliberate and unequivocal intention no longer to be bound."
17.3.
In
Van
Rooyen
added:
[28]
"Om
'n ooreenkoms te repudieer, hoef daar nie, soos in die aangehaalde
woorde uit Freeth v Burr te kenne gegee word, 'n subjektiewe
bedoeling te wees om 'n einde aan die ooreenkoms te maak nie. Waar
'nparty, bv, weier om 'n belangrike bepaling van 'n ooreenkoms
na te
kom, sou sy optrede regtens op 'n repudiering van die ooreenkoms kon
neerkom, al sou hy ook meen dat hy sy verpligtinge behoorlik
nakom.
(Kyk De Wet en Yeats Kontraktereg en Handelsreg 3de uitg. op 117.)"
17.4.
In
Highveld
7
Properties
(Pty) Ltd v Bailes
[29]
the
Supreme Court of Appeal further indicated that:
"It
follows that even a bona fide, subjective intention not to repudiate
the agreement would not assist the respondent if he
acted in such a
way as to lead a reasonable person to the conclusion that he did not
intend to fulfil his part of the original
agreement."
18.
It follows from the above authority that the Applicant was only
called upon to demonstrate that the reasonable person in its
circumstance would have considered the Respondents actions as
repudiation of the agreement between the parties, before it cancelled
the agreement. The Applicant could, although it was not required to
do so, have relied upon
a specific important term
of
the agreement between the parties, which the Respondents failed to
perform, in order to cancel the agreement due to the repudiation
thereof. However, if it appeared from the intention of the Respondent
(in consideration of the agreement in general) that it did
not intend
to be bound by the agreement, the Applicant was entitled to construe
the conduct as repudiation of the agreement and
cancel the agreement
upon such conduct.
Consideration
of Prima facie bona fide defence
19.
The
determination of whether or not a party repudiated an agreement is a
question of law
[30]
to be
determined with reference to the evidence.
20.
In
considering the question of a
bona
fide
defence,
I am obliged to accept the facts alleged by the Applicant, although
some of them may be disputed by the Respondents. All
the Applicant
must show at this stage is a
prima
facie
defence
against the claim of the Respondents: The Applicant was accordingly
called to alleged facts which amount to a good defence
if those facts
are ultimately established on trial.
[31]
21.
I do not however consider this as authority for the proposition that
I am called to follow the same approach to the adjudication
of a
rescission application, as that of an application for summary
judgment. The major difference between the two proceedings is
that in
summary judgment proceedings the defendant (respondent) is entitled
to, by way of his legal representatives and/or an affidavit
to
aver a bonafide defences
against the plaintiff s claim which may
ultimately amount to a defence (or defences) in the South African
law. This procedure precludes
a plaintiff from rebutting the evidence
of the defendant in such proceedings. If the defendant advanced a
bonafide
defence, he/she/it must be given leave to defend the
claim.
22.
On the other hand an application for rescission is brought as an
ordinary application requiring the Applicant to set out the
particular grounds upon which he is required to make out a prima
facie case. The respondent, who obtained a default judgment, is
entitled to rebut the evidence of an Applicant in an answering
affidavit, to which the Applicant is entitled to reply and the
parties are further entitled to file such further affidavits as the
court might allow. I could find no authority for the proposition
that
the normal rules of applications do not apply to rescission
applications.
23.
An
unqualified application of the
Plascon
Evans Paints case,
[32]
in so
far as it pertains to foreseeable factual disputes between parties,
to rescission applications is in my view also not acceptable.
[33]
The ultimate reason is that, in normal event, a party applying for
default judgment will be faced by a
foreseeable
factual dispute
in
respect of the defence it raised against the Respondent's claim. The
Applicant is not required to prove its defence on probabilities
but
only to establish a
prima
facie
defence.
In my
view this means
a
defence, which considered with the dispute thereof by a Respondent,
would
still
leave some room for a finding that the Applicant may have reasonable
prospect of success with the defence if the matter goes
on trial.
If
there is
no
prima facie defence
it
cannot said that the defence is
bonafide.
24.
To follow a
different approach will be to ignore the evidence presented by a
Respondent in his, her, its answering affidavit. Authority
indicates
that the court is entitled to consider
the
probabilities of a defence where the allegations or denials are so
.far-fetched or clearly untenable that a Court is justified
to reject
them merely on the evidence in the afjidavits.
[34]
This only can only be done in cases where the probabilities are so
greatly against the Applicant that it cannot be said that he/she/it
established a
bona
fide
and
prima
.facie
defence.
[35]
In this regard
bold,
vague and sketchy allegations
[36]
will
lead to an inference (on probabilities) that the defence is not
bonafide.
This is
however not the case in the present matter.
Applicant's
defence
25.
The
Applicant
described
the history of the relationship between it and the Second Respondent,
pertaining to the leased premises. It is clear from
the history that
the Applicant demanded virtually from the commencement of the lease
and on several occasions over a period of
years that the Second
Respondent should maintain and finalize the building to the lease
property. Apparently an additional portion
was build to the lease
premises in 2009. The Applicant testified:
[37]
''The
additional portion to the premises was poorly built. The second
respondent clearly made use of unskilled labour and inferior
materials. Walls cracked and aluminium structures warped. When it
rained, thefloor lodded and damagedfurniture and goods."
26.
On 27 July
2012,
[38]
about four years
after commencement of the lease, the Applicant submitted a long list
of remaining defects of the lease property
to the Second Respondent.
Although the Second Respondent ostensibly agreed to address the
defects and indeed continued with maintenance
work on the leased
property, one year later it appeared that the Second Respondent
failed to attend to any of the defects the Applicant
complained
about.
[39]
The Applicant
construed the Second Respondent's unwillingness to attend to its
reasonable demands as a repudiation of the Agreement
and cancelled it
as a result thereof.
[40]
Respondents
Answer
27.
In its
answering affidavit, the Respondents
admits
that
the Second Respondent continued to work on the premises for years
after the Agreement had commenced,
[41]
but claims that all work was completed during 2012.
[42]
The Respondents relies for the latter submission on an e-mail dated
24 March 2012.
[43]
This e-mail
do not settle the issue whether the Respondents repaired the
complained defects. The e-mail deals with outstanding
issues for
purposes of obtaining a fire inspection certificate, which is one of
the requirements for obtaining an occupation certificate.
28.
The Respondents raised further disputes against the Applicants
defence, all of which only strengthens my impression that the
Applicant has a
prima facie
defence against the claim of the
Respondents and the Second Respondent indeed repudiated the
Agreement.
28.1.
In this regard the Respondents dispute that the Second Respondent was
obliged to present the Applicant with an
occupation certificate
for the leased premises before it took occupation of the
premises.
28.2.
This is so
despite that Section 14 of the National Building Standards Act, 1977
(Act No. 103 of 1977) requires that a building may
not be occupied
without occupation certificate. Yet the Second Respondent leased the
premises to the Applicant gave him occupation
and thereafter attempts
to rely on clause 19.3 of the Agreement
[44]
which requires from the Applicant to
"obtain
all necessary premis licences authorities or other consents in
respect of the conduct of the tenants business..."
This
clause, on my view, only took effect after the Second Respondent gave
occupation the Applicant and is accordingly do not absolve
the Second
Respondent form the requirement that he should have been in
possession of an
occupation
certificate
before
it gave occupation of the lease premises to the Applicant.
CONCLUSION
29.
I my view that the Applicant raised
a prima facie
defence
against the Respondents claim, which will amount to a good defence if
those facts are ultimately established on trial. The
Applicant should
accordingly succeed.
COSTS
30.
The only issue that remains to be decided is the question of costs.
30.1.
The First Respondent should have permitted the Applicant to institute
these proceedings. His failure to do so, as indicated
above, was only
a delaying tactic. I am of view, for the reasons advanced above, that
he should be visited with a punitive cost
order.
30.2.
I have already dismissed the Respondents
in limine objection.
The
objection of non-joinder was without any merit and the Respondents
intentionally attempted to mislead the cost. This carries
in itself a
punitive burden in my view and places a question the
bona fides
of
the Respondents claim against the Applicant. It appears as if there
was a deliberate distinction made by the Applicant between
(a) its
claim for the payment of two months lease payments and (b) the
remainder of its claim for damages; which claims are in
essence of
the same nature. This was obviously done with the intention to obtain
Default Judgment against the Applicant and circumvent
the requirement
to lead evidence in respect of the remainder of the damages claim.
30.3.
The Applicant was however clearly
laizy fair
in so far as it
failed to change its chosen
domicilium citandi et executandi.
According I am of view that the Applicants should bear the cost
of this application, save the costs of application for leave to
institute this Application and the opposing the Respondents in
limine
objection.
ORDER
The
following order is made:
1.
The Applicant (defendant m the mam application) is granted leave in
terms of Section 133(l)(b) of the Companies Act, 2008 (Act
No 71 of
2008) to institute this Application and to Defend the claim of the
Respondents;
2.
The Respondents is ordered to pay the costs of the Applicants for
leave to institute this Application;
3.
The Respondents'
in limine objection
is dismissed, the
Respondents to pay the costs occasioned thereby;
4.
The Default Judgment granted against the Applicant on 11 November
2014 by Lordship, Mr Justice de Vos, is hereby set aside;
5.
The Applicant (defendant in the main application) is ordered to file
a plea with 15 (fifteen) days of the grant of this order;
6.
No order of costs is made in respect of the remainder of this
application.
J.S.
STRYDOM ACTING JUDGE OF THE
NORTH
GAUTENG HIG H COURT,
PRETORIA
Appearances:
Counsel for the
Plaintiff Adv.
A Bester
Instructed
by: Fairhridges
Wertheim Beckerinc.
Counsel for the
Defendant: C/O
Friedland Hart Solomon & Nicolson Inc Pretoria
Instructed
by: Adv.
S van Rensburg Aphane Gani Attorneys Pretoria
Date of
Trial:
25
October 2015
Date of
Judgment:
25
April 2016
[1]
See: Record. p 6 & 22.
[2]
Ibid.
[3]
Act no 71 of 2008.
[4]
See: Record, 37, par 11 , p 120, par 2.5, p 138, Annexure “MMT
1”.
[5]
See: Record, p
3
7.
par 11.
[6]
See: Record, p 7. par 12 & 13.
[7]
See: Record p 7. par 13.
[8]
See: Record p 125 .
[9]
See: Record, p 119, par. 1.5
[10]
See: Ibid. par. 1.6
[11]
See:
De
Wet and Others v Western Bank Ltd
1
977(4) SA 770 (T) at 776; 1042 F to 1043C.
[12]
See:
Chetty
v law Society, Transvaal
1985(2)
SA 756(A) at 7641 to 765F.
[13]
Comp.:
Sanderson
Technitool (Pty) ltd v lntermenua (Pt)) ltd
1980
(4) SA 573
(W) at 575-576.
[14]
See:
Zeeland
v Milborough 1991 (-!} SA
836
(SE) at 838.
[15]
See: Record, p 1 7, par 48.
[16]
Record. p 1
[17]
Record, p 17 & 18. para 49 & 50.
[18]
See:
Mining
& Machinery Company Ltd v Leseka Resource Management CC and Two
others. Case No 18528/2012. par 9-10.
[19]
1998 ( I) SA 697 (T)
[20]
See:
Zeeland
v Milhorough. supra
at
838
[21]
See: Record, 37, par 1 1, p 120, par 2.5, p 138, Annexure "MMT
1 ".
[22]
See:
Highveld
7
Properties
(Pty) Ltd v Bailes
1
999 (4) SA 1
307 (SCA)
[23]
Comp.
Christie's
Law of Contract in South Africa,
6th
Ed., p 538 and the authority referred to in note 154.
[24]
1947 2 SA 900
(E) 919.
[25]
1
966
2 SA 4
l 6 (A) 427.
[26]
1978 2 SA 835
(A) 844-846.
[27]
1961 2 SA 4
(W) 10.
[28]
Per Rabie JA at 845-846.
[29]
High veld 7 Properties (Pty) Ltd v Bai les
1999 (4) SA 1307
(SCA) at
131 5 par [2 1] at F-G
[30]
Ibid at l 2 1 5. par [21) AT F
[31]
Comp. Ibid. 838H.
[32]
Plascon
Evans Paints l td v Van Riebeeck Paints (Pty) Ltd
1
984(3 ) SA 623 (A).
[33]
Compare the application of
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A) at 634 E-645C in the matter of
Storti.
supra,
at
8061-J
[34]
See:
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003(6)
SA1 at 10B par [13]
[35]
See:
Plascon
Evans Paints Ltd
-
supra
at 635C
[36]
See:
SOS-Kinderhof
International v Effie Lentin Architects
1991
(3) SA 574
at 578 D-G
[37]
Record, p 9, par 19.
[38]
See: Record, p 12. par 33: p 93 Annexure '"SG 1 6": p 94,
Annexure “
SG
17”
[39]
Record, p 12. para 35-37; p 96 Annexure "SG18''; p94 Annexure
·'SG20".
[40]
Record, p 12, par 34, 37,
[41]
Record, p 1 26, par 8.1, p 128, par 10,2
[42]
Record, p 122-1 23, par 2.14; p l 29, par 1 1.5.
[43]
See: Record. p 123. par 2.15; p 158.
[44]
See: Record p 46.