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[2016] ZAGPPHC 337
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Standard Bank of South Africa Limited v Sindile Project Enterprise CC and Others (32975/2014) [2016] ZAGPPHC 337 (29 April 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
29/4/16
CASE NO:
32975/2014
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
THE STANDARD BANK
OF SOUTH AFRICA
LIMITED
Plaintiff
and
SINDILE PROJECT
ENTERPRISE
CC
First
Defendant
SINDILE SEWULA
MTHOMBENI
Second
Defendant
THULANI PATRICK
MTHOMBENI
Third
Defendant
DATE
OF HEARING
:
26
FEBRUARY 2016
DATE
OF JUDGMENT :
29 APRIL 2016
JUDGMENT
MANAMELA
AJ
Introduction
[l]
Plaintiff (the Bank) claims an amount of R339 246.12 first defendant
(Sindile Project) in respect of an overdraft facility based
on an
alleged oral agreement. Second and third defendants (the Sureties)
are before the court due to a limited suretyship agreement
they
signed for indebtedness of Sindile Project to the Bank.
[2]
Sindile Project denies entering into an oral agreement with the Bank.
On the other hand, the Sureties admit liability to the
Bank to the
extent proven by the Bank against Sindile Project. In other words the
success of the Bank's case against Sindile Project
will trigger the
liability of the Sureties for the proven amount.
[3]
The matter came before me as an trial on 26 February 2016 and the
parties agreed, with my approval, at the end of the trial
to file
heads of argument by 04 March (for the plaintiff) and 08 March 2016
(for the defendants). I am grateful for the filed heads
of argument.
I will deal with the material from the heads of argument, including
the events at the trial a bit later. First the
pleaded cases of the
contending parties.
The Bank's pleaded
case
[4]
The Bank pleaded, m its particulars of claim, the following case
against Sindile Project. Sindile Project holds or held at the
material times, a business current account with the Bank (the Bank
Account).
[1]
On or about 26
October 2006, at Brakpan, the Bank and Sindile Project entered into
an oral agreement for an overdraft facility,
for an unspecified
amount, based on the Bank Account.
[2]
The express, alternatively implied terms
[3]
of the oral agreement were, among others, that Sindile Project would
be liable for interest at the rate of 17.10% or as advised
from time
to time;
[4]
the money due on the
overdraft facility would become immediately due and payable on demand
by the Bank,
[5]
and a
certificate signed by any manager or administrator of the Bank, whose
appointment need not be proved shall be proof of the
contents thereof
until shown or proven otherwise.
[6]
The Bank demanded payment of the amount of R339 246.12, plus interest
at the rate of 17.10% calculated daily and compounded monthly
in
arrears from 25 February 2014 to date of payment from Sindile
Project, but in vain.
[7]
The
claimed amount also appears on a certificate of balance attached to
the particulars of claim.
[8]
[5]
Against the Sureties, the Bank essentially pleaded the following
case. On or about 15 March 2012 at Brakpan,
[9]
the Sureties, other than binding themselves as such, also bound
themselves as co-principal debtors
in
solidum
to
the Bank in respect of Sindile Project's existing (then) and any
future liability
[10]
to the
Bank. The "salient terms" of the suretyship were that
the Sureties, among others, are jointly and severally
bound; and a
certificate signed by any manager or accountant of the Bank, whose
appointment need not be proved shall be
prima
facie
proof
of the contents thereof. The Bank demanded payment of the outstanding
amount from the Sureties and complied with the requirements
of
National Credit Act 34 of 2005
, but in vain.
[11]
No payment was received from the Sureties.
Sindile
Project's pleaded defence
[6]
As stated above, Sindile Project denies the alleged oral agreement
and its terms.
[12]
It does not
appear to deny operating the Bank Account though.
[13]
Consequently, it denies liability and dispute the certificate of
balance verifying the outstanding amount.
The Sureties'
pleaded defence
[7]
On the other hand, the Sureties admit signing the suretyship, but
deny, in some respects, the terms thereof as pleaded by the
Bank.
[14]
The essence of the Sureties' defence is captured in the following:
"To the
extent that the Plaintiff may be successful in obtaining judgement
against the First Defendant
in terms of this proceedings, the Second and Third Defendants admit
their liability for payment thereof as sureties in terms of
the Deed
of Suretyship "B", limited to the amount of R5 00
000-00."
[15]
[underlining added]
[8]
The Sureties also admit receiving notices from the Bank in terms of
section 129
of the
National Credit Act.
[9
]
The minutes of the pre-trial conference do not reflect anything of
particular significance to the issues in contention herein,
except
that the documents contained in the trial bundle are what they
purport to be, although the correctness thereof remained
in
dispute.
[16]
The Bank
unsuccessfully sought admissions on several issues in contention from
the defendants.
The Trial
[10]
At the trial, the Bank called as witnesses, two of its employees,
namely Ms Somayya Koobair and Ms Nyameka Jaca. Both of them
were not
subjected to cross-examination by Mr HP West, appearing on behalf of
the defendants. This means they simply stepped down
after being led
by Ms U Lottering, on behalf of the Bank.
[11]
Ms Koobair, was the relationship manager of business accounts. Ms
Koobair assisted the second defendant, Mr Sindile Mthombeni
to open
up the Bank Account of Sindile Project at Brakpan. For the rest of
her evidence, she relied on printouts or extracts from
an electronic
or computer system called CCDS, also called the Notepad system. The
Notepad system is used by employees of the Bank
and is only
accessible to them. In the form of entries captured on the Notepad
system, employees of the Bank record activities
on customers'
accounts, including telephonic and personal communications with
customers. The entries are numbered sequentially
and once captured
they cannot be deleted. Correction of entries made or data already
captured is only possible by means of subsequent
or new entries of
the system.
[12]
Ms Koobair further testified as follows. The "Customer"
called the Bank and requested "overdraft facility or
working
capital" on 24 June 2006.
[17]
She explained that the reference to the "Customer" is to
Sindile Project. The telephone call would in all probabilities
have
been made by the second defendant acting on behalf of Sindile
Project.
[18]
The Bank Account
belongs to Sindile Project.
[19]
The overdraft facility was to be for R300 000.00,
[20]
which was awarded against security of the suretyship. She also
referred to other Notepad system entries between 16 and 24 March
2012.
[21]
These entries refer
to an overdraft facility of R300 000.00. The note made on 24 March
2012 reads in the material part:
"R500K held as
per previous notes ... Out of NCA. Agreed to facility R300K @ prime +
8.60% until 2013.03.24 as same is scored
and justified by t/o
generated . Subject to por confirming FICA compliance. Once condition
has been met, kindly contact Tracy Murugan
for the limit to be
loaded.”
[22]
[13]
She also referred to statement issued by the Bank to Sindile Project
dated 31 March 2012.
[23]
This
statement states the overdraft limit as R300 000 and applicable rate
of interest of 17.600% on the Bank Account. She said
that the
facility did not reflect frequent deposits or payments and ultimately
it was placed in what is called "lock-up".
She explained
this to mean that, although deposits may be made into the account no
withdrawals are possible when an account is
in "lock-up".
This appears to have happened twice in this matter. The Sureties had
made payment after the first "lock-up"
and the account
released. She also referred to other entries on the Notepad system.
[14]
Ms Jaca, employed as the Bank's business lending and manager at the
Bank's call centre, also relied on the printouts or extracts
from the
Notepad system for her testimony. For most of her testimony she
repeated what was said by Koobair. She confirmed that
she knew the
author of the balance certificate as her senior manager
[24]
and also commented on the outstanding amount as reflected thereon.
She was the second and final witness for the Bank. The Bank
closed
its case after her testimony.
[15]
The defendants did not lead any evidence and closed their case
without calling any witness. As indicated above, there was no
cross-examination of the two witnesses for the Bank. The parties
agreed with the sanction of the court to file heads of argument
in
lieu
of
closing legal arguments.
[25]
The Bank's heads of
argument
[16]
The heads of argument quite expectedly served as a substitute for
closing arguments by counsel on behalf of the parties. Therein,
the
Bank appreciated the obligation to establish the oral agreement
regarding the overdraft facility between itself and Sindile
Project.
In this regard, it is submitted that, the Bank needs to prove the
essentialia
of
the contract between the parties consisting of the parties; material
terms; date and place of the agreement.
[26]
[17]
It is submitted that the extracts or printout from the Bank's Notepad
system as certified and confirmed under oath by the Bank's
manager:
legal, personal and business banking credit division
[27]
should be accepted in terms of
section 15(4)
of the
Electronic
Communications and Transactions Act 25 of 2002
.
[28]
[18]
The submissions conclude that the Bank has acquitted itself well
regarding proving its case against the defendants. The court
must
accept the version placed before the court by the witnesses on behalf
of the Bank, as no questions were posed to the witnesses
and no
version was put to the witnesses on behalf of the defendants.
Defendants' Heads of
argument
[19]
The Bank's case against the defendants is
ex contractu
and is
premised on an oral agreement in respect of Sindile Project and
written suretyship in respect of the Sureties, it is submitted.
The
cause of action against Sindile Project is distinct from the cause of
action against the Sureties, although the two are closely
related.
[20]
Regarding the terms of the oral agreement, it is submitted that
although there is mention of the rate of interest at 17.10%
or as
advised from time to time in the summons,
[29]
there is no specificity on how and when the interest would be
calculated. The argument on behalf of the defendants in this regard
is the conclusion that it is "improbable that parties would
agree to such a vague term regarding interest".
[30]
Further, in the Notepad entries and the bank statement, reference is
made to an interest rate of 17.6%, which is at odds with the
rate of
17.10% allegedly agreed upon by the parties upon conclusion of the
oral agreement.
[21]
It is also submitted that it is improbable that the parties would
have agreed to a term providing that a balance certificate
is to be
used for proof of a loan and/or any other amount and did not mention
or refer to the overdraft facility. Further, it is
pointed out that
the Bank may have been able to prove the capital amount drawn in
terms of the overdraft, but this is not the pleaded
case for the
Bank. Therefore, the Bank has also failed to prove the other terms
and conditions of the alleged oral agreement, it
is contended.
[22]
Regarding the claim against the Sureties it is submitted that they
bound themselves as sureties and co-principal debtors in
solidum
to
the Bank. The Bank has to prove the
causa
debitis
in
respect of the principal debtor's undertaken liability
[31]
and the amount owed or indebtedness of the principal debtor. It is
submitted that there may be a conundrum in terms of the latter
issue
as the suretyship provides that a certificate signed by any of the
Bank's managers constitute sufficient proof of any amount
due in
terms of the suretyship until the contrary is proved. However, it is
submitted that the Sureties are entitled to raise or
rely on any
defence, which is
in
rem
(i.e.
arising from the obligation) available to Sindile Project, as the
principal debtor. As indicated above, the Sureties rely
on the Bank's
failure to prove the amount owed by Sindile Project, as both its
witnesses could not give admissible evidence regarding
the
outstanding balance.
[32]
[23]
Further the defendants dispute the validity of the Bank's reliance on
provisions of the Electronic Communications and Transactions
Act 25
of 2002 (the ECTA) for the bank statements referred to during the
trial. It is argued that the certificate accompanying
the documents
only refer "the actual copies of the data stored" on the
Bank's electronic computer system, and not the
bank statements.
[33]
Therefore, the bank statement is not admissible as evidence in terms
of the Bank's certificate prepared in terms of the provisions
of the
ECTA. It is argued that the certificate also did not identify the
Sureties and the witnesses failed to establish the signatory
to the
certificate as a manager of the Bank. This, it is argued, makes the
balance certificate not to be admissible or renders
it lacking of
prima
facie
proof
as it is not signed by a manager of the Bank.
Applicable legal
principles
[24]
The evidence in this matter is significantly located in the printouts
of data from the Bank's Notepad system. Section 15 of
the ECTA
carries the most relevant legal principles in this regard. It reads
in the material part:
"15.
Admissibility and evidential weight of data
messages.--(l) In any
legal proceedings, the rules of evidence must not be applied so as to
deny the admissibility of a data message,
in evidence-
(a)
on the mere grounds that it is constituted by a data message; or
(b) if
it is the best evidence that the person adducing it could reasonably
be expected to obtain, on the grounds that
it is not in its original
form.
(2)
Information in the form of a data message must be given due
evidential weight.
(3) In
assessing the evidential weight of a data message, regard must be had
to-
(a)
the reliability of the manner in which the data message was
generated, stored or communicated;
(b) the
reliability of the manner m which the integrity of the data message
was maintained;
(c)
the manner in which its originator was identified; and
(d) any
other relevant factor.
(4)
A
data message made by a person in the ordinary course of business, or
a copy or printout of or an extract from such data message
certified
to be correct by an officer in the service of such person, is
on its mere production in any civil, criminal,
administrative
or disciplinary proceedings under any law, the rules of a self
regulatory organisation or any other law or the common
law, admissi
ble in evidence against any person and rebuttable proof of the
facts contained in such record, copy, printout
or extract."
[I added underlining
for emphasis]
[25]
This provision was relied upon by the Bank for establishing
admissibility and evidential weight of the Notepad entries. In
terms
of section 1 of the ECTA "data message" is
"data
generated, sent, received or stored by electronic means and includes-
(a)
voice, where the voice is used in an automated transaction; and
(b) a
stored record"
[26]
Without much ado on this, I accept that the Notepad entries relied
upon by the Bank constitute data messages and therefore
their
admissibility and evidential weight is competent through compliance
with provisions of section 15 of the ECTA.
[34]
I also find that the Bank has met the statutory requirements to rely
on this evidence.
[27]
It is common cause that the Bank needs to establish and prove, for a
successful claim based on an oral agreement, against Sindile
Project,
the following formalities: parties, place, date and terms of
agreement.
[35]
It is also
common cause that the alleged agreement between the parties, concerns
monies lent and advanced in terms of the overdraft
facility.
Therefore, the terms of the alleged agreement has to include the
amount advanced; how and when is the money repayable.
[36]
I make use of subheadings to deal with the evidence on these issues.
Parties,
date and place of agreement
[28]
From the evidence led at the trial in the form of Notepad entries,
there was a telephone call or calls on behalf of Sindile
Project
requesting "overdraft facility or working capital" on 24
June 2006.
[37]
Ms Koobair
testified that the reference to the "Customer" on the entry
is to Sindile Project. The telephone call probably
made by the second
or third defendant on behalf of Sindile Project.
[38]
The Bank Account belongs to Sindile Project.
[39]
Other entries made between 16 and 24 March 2012, were also referred
to by Ms Koobair.
[40]
These
entries refer to an overdraft facility of R300 000.00.
[29]
With these I am convinced that the parties to the alleged agreement
have been established or proven as the Bank and Sindile
Project. Both
parties have acted through their representatives who orally
interacted with each other.
[30]
However, the dates of the aforementioned entries differ with the
pleaded date of the agreement: 26 October 2006.
[41]
It may be that this date was erroneous, as it is when the bank
account for Sindile Project was opened, which is in writing,
[42]
and not the agreement for overdraft facility. The possible date of
agreement is either 24 March 2012 or 24 June 2006 or both. The
same
error appears to have been made in respect of the place of
agreement.
[43]
Terms of
agreement
[31]
Although the Notepad entry above refers to the request for an
overdraft facility or working capital, it also refers to other
issues
which are not clear whether they formed part of the call or were
notes made by the recipient of the call on behalf of the
Bank. For
example, the note on 24 June 2006 refers to
"FICA
compliant. Suretyship held as per previous history note. Interest
rate loaded as per GRG. Limit loaded into CL and BRI"
[44]
[italics added] Be that as it may, the only relevant aspect of the
italicised words, in my view, is the reference to the interest
rate.
But the rate and how it is to be computed is not indicated. The
amount agreed upon for the overdraft facility is also not
stated.
[32]
Further, in terms of the note made on 15 June 2006, Sindile Project
needed 10% deposit towards a motor vehicle; to make payment
to SARS
on 25 June 2006 and "requested overdraft of R30k to assist with
payments".
[45]
Therefore,
according to this note the overdraft was for R30 000.00. However, in
terms of the Notepad entries 125-128 between 16
and 24 March 2012,
there was another request for an overdraft.
[46]
The amount for the latter request or overdraft facility was R300
000.00.
[47]
[33]
Therefore, from the above entries there were requests for an
overdraft facility in June 2006 for R30 000.00 and March 2012
for
R300 000.00. With regard to the R300 000.00 facility, there is also
mention of the applicable rate of interest stated as prime
plus 8.60%
and it also appears that the facility was until 24 March 2013, which
would have been about a year from date of the note
(i.e. 24 March
2012). There is no mention of how the rate is to be calculated and at
what intervals. It ought to be borne in mind
that the Bank's pleaded
case, in this regard, is that Sindile Project is liable for interest
on all overdue accounts at the rate
of 17.10% or as advised from time
to time.
[48]
The rate of
interest is also stated on statement issued by the plaintiff to
Sindile Project dated 31 March 2012. However, there
is no evidence
confirming that this was the only rate of interest used for
calculating the outstanding amount or whether there
were any changes.
Also there is no evidence confirming that Sindile Project accepted
this and other terms of the alleged agreement
with the plaintiff.
Therefore, I find that the Bank has failed to establish the existence
of an oral agreement with Sindile Project
as alleged.
[34]
Although, it is clear that monies were advanced in terms of the
overdraft facility, there is no evidence on the repayment terms
thereof. Although, Ms Koobair testified about the balance of R339
246.12 reflected on bank statement as at 28 February 2014, as
owing,
there was no evidence of how the amount is made up. The certificate
of balance is also not sustained by the proven facts,
as it is
grounded on existence of the oral agreement. As stated above the
overdraft facility was in a capital amount of R300 000.00
and
therefore the outstanding amount comprises the capital amount and
interest charges. It is also conceivable that there would
have been
other charges by the Bank for operation of the Bank Account and
availing or "initiating" the overdraft facility.
[49]
The certificate of balance attached to the papers is disputed and
therefore unhelpful in this regard.
Suretyship
and the Sureties
[35]
Now briefly on the suretyship and the Sureties. There is no real
dispute between the Bank and the Sureties, as the Sureties
have
admitted liability in respect of any amount the Bank successfully
proves against Sindile Project up to their suretyship limit
of R500
000.00. They rely on the same defence raised by Sindile Project as
the principal debtor, being to deny existence of the
indebtedness
based on the oral agreement. This is a defence in
rem
as
opposed to a defence
in
personam
to
the principal debtor.
[50]
In
Muller
and others v Botswana Development Corporation Ltd
[51]
the
following was said:
“
The general
rule relating to sureties is that a surety may rely on any defence
which is open to the principal debtor, provided such
defence arises
upon the obligation (one
in rem)
and not from some personal
privilege granted to the debtor (a defence
inpersonam
)
.
”
[quoted without
accompanying authorities]
[36]
Therefore, in my view, the claim against the Sureties will fail
because of the failure of the claim against Sindile Project.
This is
so, despite the fact that the certificate of balance, in terms of the
suretyship agreement, constitutes
prima facie
proof of
indebtedness against the Sureties. Such certificate is only a form or
means of proving indebtedness and not the substance
of the
indebtedness. Absent proof of indebtedness on the side of the
Sureties due to failure of the Bank's case against Sindile
Project,
the certificate is incompetent of proving any liability for the
Sureties.
Conclusion and Order
[37]
Against the backdrop of what is stated above, I find that the claim
by the Bank, as plaintiff, against Sindile Project, as
first
defendant, and the Sureties, as second and third defendants, is
unsuccessful. Costs will follow this result.
[38]
In the premises, I make the following order:
(a) The plaintiff's
claim against first. second and third defendants is dismissed with
costs.
_____________________
K.
La M. Manamela
Acting
Judge of the High Court
29
April 2016
Appearances:
For
the Plaintiff
:
Adv U Lottering
Instructed
by
:
Findlay & Niemeyer Attorneys Pretoria
For
the 151, 2nd and 3rd Defendants :
Adv HP West
Instructed
by
:
Locketts Attorneys Pretoria
[1]
See par 5 of the particulars of claim on indexed p 4 of the
pleadings bundle; pp 1-6 of the trial bundle.
[2]
Ibid.
[3]
See par 6 of the particulars of claim on indexed p 4 of the
pleadings bundle.
[4]
See par 7.2 of the particulars of claim on indexed p 4 of the
pleadings bundle.
[5]
See par 7.1 of the particulars of claim on indexed p 4 of the
pleadings bundle.
[6]
See par 7.3 of the particulars of claim on indexed pp 4-5 of the
pleadings bundle.
[7]
See prayer 2 of the particulars of claim on indexed p 17 of the
pleadings bundle; par 8 of the particulars of claim on indexed
p 5.
[8]
See par 7.4 of the particulars of claim on indexed p 5; annexure "A"
on indexed p 19 of the pleadings bundle.
[9]
See par 9 of the particulars of claim on indexed p 5; annexure "B"
on indexed p 20 of the pleadings bundle.
[10]
The liability or indebtedness included loans; promissory notes;
overdrafts and credit and debit card transactions. See pars 10.2.3-1
1.6 of the particulars of claim on indexed pp 6-10 of the pleadings
bundle.
[11]
See par 15 of the particulars of claim on indexed pp 14-16 of the
pleadings bundle.
[12]
See pars 3-5 of the first, second and defendants' plea (defendants'
plea) on indexed p 30 of the pleadings bundle.
[13]
See par 3 of the defendants' plea on indexed p 30 of the pleadings
bundle.
[14]
See pars 7 and 8 of the defendants' plea on indexed p 31 of the
pleadings bundle.
[15]
See par 9 of the defendants' plea on indexed p 31 of the pleadings
bundle.
[16]
See par I 0.1 on indexed p 7 of the pre-trial bundle.
[17]
See trial bundle p 21.
[18]
The pronoun used is "he" and the rest of the material
attributed to the telephone conversation leaves no doubt that
it was
someone in authority from Sindile Project.
[19]
See trial bundle pp 1-6.
[20]
See Notepad entries 125-128 on 16-24 March 2012 on indexed pp 51-55
of the pre-trial bundle.
[21]
See trial bundle pp 51-55.
[22]
See trial bundle pp 55.
[23]
See trial bundle pp 111.
[24]
See annexure "A" on indexed p 19 of the pleadings bundle.
[25]
See par 3 above.
[26]
See Harms LTC Amler's Precedents of Pleadings 8th edition
(LexisNexis Durban 2015) (Amlers) at pp 104-110; Christie RH and
Bradfield GB Christie's The Law of Contract in South Africa 6th
edition (LexisNexis Durban 2011) at pp 164-165; generally McWilliams
v First Consolidated Holdings (Pty) Ltd 1982 (2) SA I (A).
[27]
See trial bundle pp 70-71.
[28]
See par 24 below.
[29]
See par 7.2 on p 4 of the pleadings bundle.
[30]
See par 3.2 of the defendants' heads of argument.
[31]
See Dowson & Dobson Industrial ltd v Van der Werf
1981 (4) SA
417
(C) 431.
[32]
See La Consortium & Vending CC t/a LA Enterprises v MTN Service
Provider (Pty) ltd 201
1 (4) SA 577
(GSJ) at 5920 at par 19.
[33]
See generally la Consortium & Vending CC t/a LA Enterprises v
MTN Service Provider (Pty) ltd 201 1 (4) SA 577 (GSJ).
[34]
See La Consortium & Vending CC tla LA Enterprises v MTN Service
Provider (Pty) Ltd
2011 (4) SA 577
(GSJ) at 5920 at par 19.
[35]
See Amlers at pp 104-105; Christie RH and Bradfield GB Christie's
The Law of Contract in South Africa 61 edition (LexisNexis
Durban
201 1) at pp 164-165; generally McWilliams v First Consolidated
Holdings (Pty) Ltd
1982 (2) SA 1
(A).
[36]
See Amlers at p 144.
[37]
See trial bundle p 21.
[38]
The pronoun used is "he" and the rest of the material
attributed to the telephone conversation leaves no doubt that
it was
someone in authority from Sindile Project.
[39]
See trial bundle pp 1-6.
[40]
See trial bundle pp 51-55.
[41]
See par 5 on pleadings bundle p 4; par 7 of the defendants' heads of
argument.
[42]
See trial bundle pp 1-6.
[43]
Ibid
.
[44]
See trial bundle p 21.
[45]
See trial bundle p 20.
[46]
See trial bundle pp 51-55.
[47]
See trial bundle p 55; pars 12 and 28 above.
[48]
See pleadings bundle on p 4; par 14 of plaintiff s heads of
argument.
[49]
See trial bundle p 53.
[50]
See Du Bois F (ed) Wille 's Principles of South African Law 9th
edition (Juta Cape Town 2007) on pp 1022- 1025.
[51]
[2002] 3 All SA 663
(SCA).