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[2015] ZAGPPHC 293
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Mbatha and Another v S & J Rademeyer (Pty) Ltd (79554/14) [2015] ZAGPPHC 293 (31 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
79554/14
DATE: 31 MAY 2015
NOT REPORTABLE
OF INTEREST TO
OTHER JUDGES
In the matter
between:
CEDRIC
SIYABONGA NSIZWENHLE
MBATHA
....................................................................
1
st
Plaintiff
KHANYISILE
TAMARA
MBATHA
............................................................................................
2
nd
Plaintiff
and
S
& J RADEMEYER (PTY)
LTD
...................................................................................................
Defendant
REASONS FOR
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
[1] On 27 February
2015, I granted an order for summary judgment as prayed for and
undertook to give my reasons at a later stage.
[2] Before I deal
with the reasons for my order, I wish to mention an intervening issue
that may not strictly be relevant for present
purposes.
On 18 March 2015 and
before I could finalize reducing my reasons into writing, I received
a telephone call from my Registrar. She
enquired about the
whereabouts of the file in this matter as she wanted to place an
application for leave to appeal that she had
received. I may mention
that in that week I had been released from acting duties to attend to
a personal matter. When I resumed
my acting duties on Tuesday 24th,
she handed me a Notice of Appeal dated 18 March 2015.
[3]
In terms of the Notice, the defendant seeks
‘‘
leave
to appeal against the whole of the Order “
I
made on 27 February 2015 "
to
the full bench of the High Court of South Africa
,
Gauteng Division".
The
Notice further reads that
“
The
applicant shall furnish its grounds of appeal within fifteen days
from the date on which the reasons for the order are given
by the
Honourable Court, which reasons the Honourable Court undertook to
furnish in due course”
[4] I do not have to
express a view on the approach adopted by the defendant of filing a
Notice of Leave to appeal before I give
reasons for my judgment.
I now proceed to
give my reasons:
[5] This is an
application for Summary Judgment. The parties are referred to as they
were cited in the main action.
[6] The plaintiffs
instituted an action against the defendant in terms of which they
prayed for judgment in the following terms:
"5.1
Confirmation of cancellation of the Sale Agreements.
5.2 Payment of the
sum of R690 000.00 (Six Hundred and Ninety Thousand Rand) plus
interest @ 9% per annum calculated from 8 September
2014 to date of
payment.
5.3 Costs
5.4 Alternative
relief”
[7] The defendant
entered appearance to defend, after which the plaintiffs duly filed
an application for summary judgment that subsequently
came before me
for hearing on 27 February 2014.
CAUSE OF ACTION
[8] The plaintiffs’
cause of action arises from allegations of breach of conditions of
three agreements entered into between
the parties in terms of which
the defendant sold to the plaintiffs three properties. The plaintiff
purportedly cancelled the agreements
and now seeks confirmation
thereof and refund of the full purchase price.
[9] Save for the
allegations of the breach, the entitlement to cancel the agreements
and claim for repayment of the purchase price,
the material terms of
the agreements and circumstances surrounding the cancellations are
largely common cause and may be summarized
as follows:
[10] On 14 February
2013, the plaintiffs purchased three properties from the defendants
that are identified as Portion 223, a portion
of 110 of the farm
Vlakfontein 546 I.Q, Portion 225, a portion of Portion 110 of the
farm Vlakfontein 546 I.Q and Portion 226,
a portion of Portion 110 of
the farm Vlakfontein 546 I.Q.
[11] The purchase
price for each of these properties was R230 0000.00 ( Two Hundred and
Thirty Thousand Rand). The plaintiffs paid
the full purchase price of
R690 000.00 in two installments, the final one being on 12 August
2013
[12] Save for the
description of the properties, the three agreements are identical.
[13] On 14 August
2014, a year after the last installment was paid, plaintiff’s
attorneys directed a letter to the defendant
through its attorneys
advising them amongst other things that the plaintiffs have complied
with their obligations in terms of the
agreements and that the
latter’s failure to transfer the properties constituted breach
of the agreements.
The
defendant was given 21 days to effect transfer of the properties,
failing which the plaintiffs threatened that they would be
entitled
to
“
claim
specific performance and damages or cancellation of the Agreements
and damages which includes a refund of the purchase price
paid to
you”.
[14] The defendant
did not respond to the letter of 14 August 2014. On 08 September
2014, the plaintiff's attorneys again wrote
to the defendant’s
attorneys of record and advised them that the plaintiffs
“
have
elected to cancel the 3 (three) Agreements, and claim, as we hereby
do, a refund of the full amount paid to you, which is R690
000.00
(Six Hundred and Ninety Thousand Rand) plus interest at the
prescribed rate and unless payment of this amount is made to
us
within
14 (fourteen) days
of date hereof, we will proceed with legal action for the recovery
thereof”
[15] There is no
indication from the documents before me that the defendant responded
to this letter too. No argument was advanced
to the contrary too.
[16] Summons in the
main action was issued on 29 October 2014.
THE BREACH
[17] Clause 12.1 of
the Agreement(s) provides as follows:
"Should
either party commit
a
breach of any of
the terms of this agreement and fail to remedy same within 7 (seven)
days of being called upon to do so, the aggrieved
party shall be
entitled without prejudice to any other rights which the aggrieved
party may have and without prejudice to his/her
rights to claim any
damages that he/she may have suffered as a result of such breach, to
cancel the agreement by written notice
to the defaulting party, or to
claim specific performance from the defaulting party of his/her
obligations in terms of this agreement”
[18] Clause 4.1
deals with transfer of the property(ies)and reads as follows:
"
Transfer of the
Property shall be effected by the conveyancing attorneys, appointed
by the Seller as soon as the Purchaser has complied
with all its
obligations as set out in this agreement. All costs of transfer,
including but not limited to, transfer duty, if applicable,
and the
costs of registering any mortgage bond which may be required, costs
relating to the obtaining of clearance certificates,
as well as
survey and diagram fees (if applicable), and any VAT payable on such
costs, shall be paid by the Purchaser.
The Purchaser
shall, on demand, pay all such costs as called for by the
conveyancing attorneys"
(highlighted
for emphasis)
[19]
The plaintiffs counsel,
Strydom
SC
argued
that they performed their obligations in terms of the Agreements by
paying the purchase price. This is all that they had
to do to trigger
the transfer process in terms of clause 4.1. The defendant, it was
argued, had an obligation, after receiving
the purchase price, to
appoint conveyancing attorneys, who, in turn would have made a demand
for payment of transfer costs . As
this was not done, they
(plaintiffs ) had no obligation to tender payment of transfer costs
because this can only be done after
they have been presented with a
calculation of the amount payable for transfer costs . The costs
mentioned in clause 4.1 must be
calculated by the defendant’s
conveyancing attorneys and presented to the plaintiffs before an
obligation arises for the
latter to pay transfer costs.
[20] Plaintiffs
contend further that there had been a proper demand and cancellation
of the Agreements was effected within the timeframes
provided
therein. The summons was issued during October 2014. Consequently,
they pray for summary judgment with costs.
AFFIDAVIT TO
RESIST SUMMARY JUDGMENT AND DEFENCES RAISED
[20] On 17 December
2014, the defendant duly filed an affidavit to resist summary
judgment and denied that it does not have a bona
fide defence to the
plaintiff’s claim and that it has entered appearance to defend
plaintiff's action solely for the purpose
of delay.
[21]
The defendant’s counsel,
Mr
West
argued
that the plaintiff’s purported cancellation of the Agreement is
unlawful. It was further argued on behalf of the defendants
that the
plaintiffs did not comply with its obligations in terms of the
Agreements. Furthermore, the defendant denies that it has
failed to
transfer the properties to the plaintiffs.
[22] I now proceed
to examine the arguments to support the defence(s).
[23] The argument
with regard to failure by the plaintiffs to perform all of its
obligations is premised on defendant's reading
/ interpretation of
clause 4.1 that I have quoted above. The high watermark of the
defendant's defence is contained in paragraphs
19 and 20 of its
affidavit that read as follows:
“
19.
The plaintiffs have not complied with all of their obligations in
terms of the sale agreement and in particular they have not
paid all
costs of transfer in regard to any of the sale agreements.
20. The
plaintiffs were accordingly not entitled to demand transfer of any of
the properties and the defendant was not under any
obligation to
transfer any of the properties into the names of the plaintiffs until
they had paid transfer costs associated therewith
“
[24] In both his
written and oral argument , counsel for the defendant, Mr West,
contended that the plaintiffs’ cancellation
of the Agreements
was unlawful and as such they were not entitled to restitution.
Furthermore, the
Agreements , in particular clause 4.1 constitute reciprocal
obligations which the plaintiff was obliged to perform
before the
defendant would be called upon to reciprocate by effecting transfer
of the properties.
In
this regard, I was referred to the Appellate Division matter of
BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1)
SA 391
(A).
[25] According to
the defendant, it was immaterial whether the plaintiffs have been
called upon to pay transfer costs because they
admit on their own
version that they did not pay, nor have they tendered to pay such
costs. A submission was also made that the
conveyancing attorneys
were not part of this case.
DEFENDANT’S
SUPPLEMENTARY AFFIDAVIT
[26] I received
defendant’s supplementary affidavit dated 24 February 2015 a
day before the hearing of this matter.
The
affidavit, deposed to by the defendant’s attorney simply states
that the properties that ‘‘form
the
subject matter of the three Sale Agreements as set out in paragraph
4.1 of the Plaintiff's Particulars of Claim have already
been
transferred and
registered
in the names of
the Plaintiffs on 8 January 2015 in the Pretoria Deeds Office. The
Defendant has accordingly rendered performance
in terms of the Sale
Agreements"
A copy of the Deeds
Office Printout was attached as proof thereof.
[27] This issue of
transfer was not pursued in argument, instead Mr West, for the
defendant, persisted with the argument that I
should dismiss the
application for summary judgment, not on the basis that there has
been performance, but because the cancellation
was unlawful as the
plaintiffs have failed to perform their obligations to pay or tender
transfer costs to the conveyancing attorneys.
[28] My thought on
receipt and perusal of the supplementary affidavit was that the
parties had settled the matter and that plaintiffs
had accepted the
transfer of the properties. During the hearing, I enquired from the
plaintiffs counsel what the effect of this
transfer was on the
summary judgment application. He was emphatic that the alleged
transfer occurred when there was no agreement
between the parties as
the plaintiffs had lawfully cancelled the agreement.
[27]
In reply to the defences raised on behalf of the defendant, Mr
Strydom submitted that the defendant had no bona fide defence
that is
valid in law against the claim as required in terms of Rule 32(3)(b)
of the Rules of Court. I was referred to the matter
of
Breytenbach
v Flat
1976 (2) SA 226
(T) at 228 B
in
this regard. Furthermore, there are no factual disputes that would
require to be resolved in a trial.
On
the correct approach to interpretation of the Agreements, I was
referred to the Supreme Court of Appeal decision in the matter
of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
1
[18]
Over the last century there have been significant developments in the
law relating to the interpretation of documents, both
in this country
and in others that follow similar rules io our own
.
13
It
is unnecessary to add unduly to the burden of annotations by trawling
through the case law on the construction of
documents
in
order to trace those developments. The relevant authorities are
collected and summarised in Bastian Financial Services (Pty)
Ltd v
General Hendrik Schoeman Primary School.
14
The present state of the law can be expressed as follows.
Interpretation
is the process of attributing meaning to the wordst used in a
document, be it legislation,
some
other
statutory instrument, or contract, having regard to the context
provided by reading the particular provision or provisions
in the
light of the document as a whole and the circumstances attendant upon
its coming into existence. Whatever the nature of
the document,
consideration must be given to the language used in the light of the
ordinary rules of grámmar and syntax;
the context in which the
provision appears; the apparent purpose to which it is directed and
the material known to those responsible
for its production. Where
more than one meaning is possible each possibility must be weighed in
the light of all these factors.’
5
The process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike
results
or undermines the apparent purpose of the
document.
Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike
for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation
and
legislation. In a contractual context it is to make a contract for
the parties other than the one they in fact made. The ‘inevitable
point of departure is the language of the provision itself’,
16
read in context and having regard to the purpose of the provision and
the
background
to the preparation and production of the document.”
2
LEGAL PRINCIPLES
OF SUMMARY JUDGEMENT
[28]
In the matterof
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
3
, Navsa JA
4
restated
the origin and principles of summary judgment and cautioned about the
labeling of summary judgment a#“extraordinary".
“
29]
A summary judgment procedure was first introduced into our practice
by the Magistrate’s Court Act of 1917. It was based
upon a
procedure introduced in England by Order
XIV
under
the Judicature Acts whereby a plaintiff was able, by means of a
summary proceeding, to obtain a final judgment when there
was no bona
fide defence to an action.
16
[30]
In John Wallingford v The Directors &c. of The Mutual Society
(1880) 5 AC 685
(HL)
at
699
-700,
Lord Hatherley referred to the objects of the new English procedure
as follows:
‘
I
apprehend that from the first the objects of these short methods of
procedure has been to prevent unreasonable delay, a delay
which was
very prejudicial to the creditors, and never, I am afraid, or rather,
I am pleased to say, can have been very beneficial
to the debtor
himself. Simply allowing legal proceedings to take place, in order
that delay may be applied to the administration
of justice as much as
possible, is not an end for which we can conceive the Legislature to
have framed the provisions which now
exist under the several
Judicature Acts. If a man really has no defence, it is better for him
as well as his creditors, and for
all the parties concerned, that the
matter should be brought to an issue as speedily
as
possible; and
therefore there was a power given in cases in which plaintiffs might
think they were entitled to use the power by
which, if it was a
matter of account, an account might be immediately obtained upon the
filing of a bill, or, if it was a matter
in which the debt was clear
and distinct, and in which nothing was needed to be said or done to
satisfy a Judge that there was
no
real defence to
the action, recourse might be had to an immediate judgment and to an
immediate execution.'
[31] So too in
South Africa, the summary judgment procedure was not intended to
'shut (a defendant) out from defending', unless
it was very clear
indeed that he had no case in the action. It was intended to prevent
sham defences from defeating the rights
of parties by delay, and at
the same time causing great loss to plaintiffs who were endeavouring
to enforce their rights.
17
[32]
The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue
or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary
judgment
proceedings can hardly continue to be
described
as
extraordinary.
Our
courts,
both of first
instance and at appellate level, have during that time rightly been
trusted to ensure that a defendant with a triable
issue is not shut
out. In the Maharaj case at 425G-426E, Corbett JA, was keen to ensure
first, an examination of whether there
has been sufficient disclosure
by a defendant of the nature and grounds of his defence and the facts
upon which it is founded.
The second consideration is that the
defence so disclosed must be both bona fide and good in law. A court
which is satisfied that
this threshold has been crossed is then bound
to refuse summary judgment. Corbett JA also warned against requiring
of a defendant
the precision apposite to pleadings. However, the
learned judge was equally astute to ensure that recalcitrant debtors
pay what
is due to a creditor.
[33]
Having regard to its purpose and its proper application, summary
judgment proceedings only hold terrors and are ‘drastic'
for a
defendant who has no defence. Perhaps the time has
come
to discard these
labels and to concentrate rather on the proper application of the
rule, as set out with customary clarity and
elegance
by
Corbett JA in
the Maharaj case at 425G-426E.
[29]
In the matter of
Di
Savino v Nedbank Namibia Ltd
5
,
the appeal court, per Ngcobo AJA considered the principles of summary
judgment, in particular the issue of whether the failure
of the
affidavit resisting summary judgment to uheasure up to the
requirements of the Rule would result in the granting of summary
judgment.
Principles
governing summary judgment
23.
One of the wáys in which the defendant may successfully avoid
summary judgment is by satisfying the court by affidavit
that he or
she has a bona fide defence to the action. The defendant would
normally do this by deposing to facts which, if true,
would establish
such a defence. Under Rule 32(3) (b) the affidavit must
“
disclose fully the nature
and grounds of the defence and the material facts relied
upontherefor". Where the defence is based
upon facts and the
material facts alleged by the plaintiff are disputed or where the
defendant alleges new facts, the duty of the
court is not to attempt
to resolve these issues or to determine where the probabilities lie.
24.
The enquiry that the court must conduct is foreshadowed in Rule 32(3)
(b) and it is this:first, has the defendant "fully”
disclosed the nature and grounds of the defence to be
raised
in
the action and the material facts upon which it is founded; and,
second, on the facts disclosed in the affidavit, does the defendant
appear to have, as to either the whole or part of the claim, a
defence which is
bona
fide
and
good
in
law
.
6
If
the court is satisfied on these matters, it must refuse summary
judgment, either
in
relation
to the whole or part of the claim, as the case may be.
25.
While
the defendant is not required to deal
“
exhaustively
with the facts
and
the evidence
relied
upon to substantiate them", the defendant must at least disclose
the defence to be raised and the material facts upon
which it is
based “with sufficient particularity and completeness to enable
the Court to decide whether the affidavit discloses
a bona fide
defence.”
7
Where the statements of fact are ambiguous or fail to canvass matters
essential to the defence raised,
then
the
affidavit does not comply with the Rule.
8
26. Where the
defence is based on the interpretation of an agreement, the court
does not attempt to determine whether or not the
interpretation
contended for by the defendant is correct. What the court enquires
into is whether the defendant has put forward
a triable and arguable
issue in the sense that there is a reasonable possibility that the
interpretation contended for by the defendant
may succeed at trial,
and, if successful, will establish a defence that is good in law.
9
Similarly, where the defendant relies upon a point of law, the point
raised must be arguable and establish a defence that is good
in law.
27.
But
the
failure of the
affidavit to measure up to these requirements does not in itself
result in the granting of summary judgment. The
defect may,
nevertheless be cured by reference to other documents relating to the
proceedings that are properly before the court.
10
ln Sand and Co. Ltd v Kolliasthe court held that the principle that
is involved in deciding whether or not to grant summary judgment
is
to look at the matter “at the end of the day" on all the
documents that are properly before the court.
11
[30] The affidavit
filed by the defendant to resist summary judgment and the defences
raised therein should be considered in accordance
with the above
stated general principles.
ANALYSIS OF THE
DEFENCE(S) RAISED: BONA FIDE AND GOOD IN LAW?
[31] In line with
the authorities, my duty at this stage is not to undertake an
interpretation of the Agreements, in particular
clause 4.1 that is
alleged to constitute reciprocal obligations with the plaintiffs
being the first to perform by tendering or
paying transfer costs.
[32]
In the matter of
Millman
NO V Klein
1986 (1) SA 465
(C)
12
,
Rose
Innes J
was
faced with an allegation that an offer lapsed partly because a party
failed to furnish a banker’s guarantee in terms of
the
agreement. The learned judge re-iterated the legal position with
regard to interpretation of documents at summary judgment
stage. It
is undesirable for a judge to attempt to interpret an agreement
during summary judgment proceedings because one would
not necessarily
have the benefit of the surrounding circumstances under which the
agreement was concluded to understand their true
intention.
However, the learned
judge qualified this by stating the following:
"Where
however,
a
contention is advanced in summary judgment proceedings which may be
refuted by pointing to a palpable misreading of a document
and a
palpable logical fallacy, and the meaning of the document is clear on
the point in debate, whatever the surrounding circumstances
may have
been, the risk of error of interpretation of the words used may be
so
reduced as to be
negligible, and the point in issue may be capable of summary
decision’’
[33] For the reasons
stated in the qualification crafted by the learned judge, I believe
that I am in a position to consider the
provisions of clause 4.1 of
the Agreements before me. The intention is to determine whether there
is a reasonable possibility that
the interpretation contended for by
the defendant may constitute a triable issue at the trial, and, if
successful, will establish
a defence that is good in law.
[34] In its
affidavit, the defendant does not say anything about whether or not
the plaintiffs were called upon to pay transfer
costs. Although in
the letters attached by the plaintiffs there is reference to some
communication with the defendant’s attorneys,
the latter chose
not only to ignore the letters, but also not make reference to the
allegations in the affidavit resisting summary
judgment. In fact, the
defendant does not dispute the allegation that the plaintiffs were
not called upon to pay transfer costs.
Instead, the attitude of the
defendant in this regard is that whether the plaintiffs were called
upon to pay transfer costs or
not is immaterial because they did not
tender the costs nor did they pay them.
[35]
Therefore,
the
only defence that the defendant relies on is the interpretation of
clause 4.1. The issue is whether this
clause
creates
reciprocal
obligations, with the plaintiff having to perform first by paying or
tendering to pay transfer costs .
[36] In this regard,
I am allowed to consider whether the interpretation that the
defendant seeks to attach to clause 4.1 is tenable
and whether the
arguments advanced would constitute a triable issue at the trial of
this matter should I refuse to grant summary
judgment.
[37] In my view, the
following consecutive steps are clear from an ordinary grammatical
reading of Clause 4.1 :
[37.1]
The purchaser complies with its
obligations
in
terms
of
the
agreement. Having perused the Agreements, the only possible
obligation before transfer of the properties is payment of the
purchase price.
[37.2] Soon
thereafter, the seller appoints conveyancing attorneys to effect
transfer of the properties.
[37.3] The
conveyancing attorneys shall identify / determine transfer costs that
are applicable for this particular transfer from
amongst others the
ones listed in this clause.
[37.4] The
conveyancing”attorneys shall demand payment of the applicable
fees from the plaintiffs.
[37.5] The
plaintiff's shall, an demand (read “after the demand") pay
the transfer costs so demanded.
[38] I pose the
following ‘questions in order to test whether the defendant’s
interpretation of clause 4.1 is logical
in view of the consecutive
steps in clguse 4.1.
[37.1] Did the
purchaser (plaintiffs) comply with their obligations in terms of the
agreement? The plaintiffs contend that their
obligation was to pay
the purchase price to trigger the steps in clause 4.1.
[37.2] Did the
seller appoint conveyancing attorneys? If yes, were the plaintiffs
advised? When? How? Proof?
[37.3] If the answer
to 37.2 is NO, how were the plaintiffs supposed to know who the
conveyancing attorneys are? How were they supposed
to know what
constitute transfer costs and the amount payable? To whom were they
supposed to tender payment of transfer costs?
[38] Taking into
account all the facts and documents before me , I am of the view that
he contention that the plaintiffs did not
perform their obligations
in terms of clause 4.1 is not correct because that obligation did not
arise. There is no reasonable possibility
that defendant's
interpretation of clause 4.1 will constitute a triable issue . It is
correct that there are reciprocal obligations,
but on the facts and a
grammatical reading of the relevant clause, it is not correct that
the plaintiffs had to tender or pay costs
first before transfer could
be effected.
[39] Consequently,
in my view, the plaintiffs were entitled to cancel the agreement and
claim a refund of the money paid as the
defendant had breached the
conditions in clause 4.1 by failing to effect transfer of the
properties . Proper notice of the cancellation
was given. The
defendant ignored the notice and also failed to make good the breach.
CONCLUSION
[40] Having
considered the defences put forward by the defendant and having found
that none of them discloses a defence that is
good in law and made in
good faith as envisaged in Rule 32, the plaintiff is entitled to
summary judgment.
[41] In the result,
I make the following order:
Summary judgment is
granted in favour of the plaintiff as follows:
[4.1 ] Confirmation
of cancellation of the Sale Agreements.
[4.2] Payment of the
sum of R690 000.00 ( Six Hundred and Ninety Rand ) plus interest @ 9%
per annum calculated from 08 September
2014 to date of payment.
[4.3] Costs.
TAN MAKHUBELE
Acting
Judge of the High Court
APPEARANCES:
Plaintiff:
Advocate T Strydom SC
Instructed
by: De Klerk Vermaak & Partners Inc
C/O
Van Der Merwe Attorneys
COLYN,
PRETORIA
Defendant:
Advocate HP West
Instructed
by: Louwrens Coetzer Attorneys
C/O
Van Heerdens Inc
PRETORIA
1
(920/201
0) I
20121
ZASCA 13
(15
March 2012)
(footnotes
have been omitted)
2
Wallis
JA (Farlam, Van Heerden, Cachalia and Leach JJA concurring)
3
(161/08)
[
2009]
ZASCA 23
(27
March 2009)
4
Harms
DP, Brand, Mhlanta JJA and Bosielo AJA concurring
5
(SA 24/2010) [2012] NASC3 (21 June 2012)
6
Maharaj
v Barclays National Bank Ltd,
1976(1)
SA 418 (A) at 426A-C
7
Maharaj
v Barclays National Bank, supra,
at
426C-D
8
Arend
and Another v Astra Furnishers (Pty) Ltd,
1974(1)
SA 298(C) at304A-B
9
Shingadia v Shingadia,
1966 (3) SA 24
(R) at 26A-B; Tseven CC and
Another v South African Bank of Athens.
2000 (1) SA 268
(SCA) at
para 26; Shepstone v Shepstone, 1974(2) SA 462(N) at 467A; Marsh and
Another v Standard Bank of SA Ltd, 2000(4) SA 947
(W) at 949 para 3
10
Sand and Co. Ltd v Kollias,
1962 (2) SA 162
(W) at 165; Maharaj v
Barclays National Bank Ltd, supra, at 423H
11
Sand and Co Ltd v Kollias, supra, id.
12
At
p480