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[2015] ZAKZDHC 61
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Jazira Holdings Ltd v Wonderflooring (Pty) Ltd and Others (2277/09) [2015] ZAKZDHC 61 (12 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO.: 2277/09
DATE:
12 AUGUST 2015
In
the matter between:
JAZIRA
HOLDINGS
LTD
..................................................................................................
PLAINTIFF
And
WONDERFLOORING
(PTY)
LTD
...................................................................
FIRST
DEFENDANT
SALEEM
MOHAMED
THOKAN
................................................................
SECOND
DEFENDANT
AKTHAR
THOKAN
..........................................................................................
THIRD
DEFENDANT
ABDOOL
MAJEED
DAWOOD
....................................................................
FOURTH
DEFENDANT
MUKHTAR
AHMED
DAWOOD
.......................................................................
FIFTH
DEFENDANT
ANWAR
ISMAIL
DAWOOD
.............................................................................
SIXTH
DEFENDANT
SEA
EDGE INVESTMENTS (PTY)
LTD
..................................................
SEVENTH
DEFENDANT
INDABA
INVESTMENTS (PTY)
LTD
.........................................................
EIGHTH
DEFENDANT
JUDGMENT
Delivered
on: 12 August 2015
MNGUNI
J
[1]
This is an interlocutory application brought under Rule 28 of the
Uniform Rules of this court in terms of which the applicant
(the
plaintiff in the action) seeks leave to amend its particulars of
claim. The application was brought after the pleadings in
the action
had closed. The applicant failed to lodge this application within 10
days of the defendants’ objections to its
proposed amendments
as required by Rule 28 (4). Allied to the application for leave to
amend is therefore an application for an
extension of the period for
the filing of the application for leave to amend, alternatively, for
condonation of the applicant’s
late filing thereof.
[2]
The relief sought is opposed by the first to third respondents (the
first to third defendants in the action). For ease of reference
I
shall refer to the parties by their designations in the action. I
shall also refer to the first to third respondents collectively
as
the defendants.
[3]
The background facts underlying this application are the following:
On 11 February 2009 the plaintiff caused summons to be issued
against
the defendants
[1]
claiming
damages allegedly suffered as a result of misrepresentations made to
Mr Bagash (the Director of the plaintiff) by the
defendants which
caused the plaintiff to enter into various agreements and to invest
substantial amount of money in what the plaintiff
had been told would
be property development ventures in South Africa. In the process the
plaintiff lost such money. The defendants
entered appearances to
defend the action and subsequently delivered their pleas.
[4]
On 28 July 2011 the plaintiff and the sixth defendant settled the
dispute between them on the basis that the sixth defendant
would pay
to the plaintiff the US$ equivalent of R6 050 000 which was
duly done by the sixth defendant. As a result of
the settlement
between the plaintiff and the sixth defendant, the plaintiff’s
action against the sixth defendant will not
proceed further. For this
reason and other reasons which will become apparent in the course of
this judgment, the plaintiff contends
that it has become necessary
for it to effect certain
amendments to its
particulars of claim.
[5]
According to Mr Bagash, (deponent to the plaintiff’s founding
affidavit) during the course of 2013 he, on the advice of
the
plaintiff’s attorneys, considered it appropriate to have the
plaintiff’s case reviewed and reconsidered by further
counsel
who had not been involved in the matter up until that stage. Pursuant
to that on 8 and 9 November 2013 Mr Bagash consulted
with Mr
Breitenbach
SC in Mumbai, India. Arising from that consultation and the review of
the pleadings by Mr
Breitenbach
,
it was considered necessary by the plaintiff on the advice of its
legal representatives to effect certain further amendments to
its
particulars of claim.
[6]
On 6 February 2014 the plaintiff filed a notice in terms of Rule 28
(1) containing the proposed amendments to its particulars
of claim.
In view of the importance of these proposed amendments, it is
important to set them out in full and they are as follows:
‘
1.
adding, after the existing portion of paragraph 7, the following
sentences:
“
After
the issuing of the summons in this matter on 11 February 2009, more
specifically on 28 July 2011 the Plaintiff and the Sixth
Defendant
settled the dispute between them. Consequently, the Plaintiff has
withdrawn the action against the Sixth Defendant and
all references
to the Sixth Defendant herein are included for completeness sake not
to substantiate any current claim against the
Sixth Defendant.”;
2.
replacing paragraph 11 with the following paragraph:
“
11.
Between about May 2005 and about January 2006 the Second Defendant
and the Fourth Defendant, acting on their own behalf and
on behalf of
the First, Third, Fifth and Sixth Defendants, invited Ali Mohammed
Bagash (“Bagash”), to lend, either
himself or through an
entity established by him for that purpose, US $3.5 million to the
Seventh Defendant and US $10 million to
the Eighth Defendant.”;
3.
replacing paragraph 12(1) with the following paragraph:
“
12.(1)
In order to induce Bagash or that entity to make the loans, the
Second Defendant and/or the Fourth Defendant, acting on their
own
behalf and on behalf of the First, Third, Fifth and Sixth Defendants,
made the following material representations:
12(1).1
the Seventh and Eighth Defendants were property development companies
controlled by an entity called Indawo investments;
12(1).2
Indawo Investments had a team of executives from diverse business
segments, comprising the Second to Sixth Defendants and
one Albert
Lourens (“Lourens”), a. quantity surveyor;
12(1).3
the Second and Third Defendants were, respectively, the Managing
Director and Financial Director of the First Defendant;
12(1).4
the First Defendant was:
12(1).4.1
part of a group with an asset base in excess of US $250 million; and
12(1).4.2
the main financier of Indawo Investments;
12(1).5
in addition to the property developments to be undertaken through
the Seventh and Eighth Defendants, Indawo investments
was busy with
property developments on other properties at a total cost of about US
$100 million;
12(1).6
Indawo investments had already completed several projects in
KwaZulu-Natal, including a new multi-storey mixed-use building
in
Umhlanga, KwaZulu-Natal, called Horizon Views;
12(1).7
the Seventh Defendant intended to use the US $3.5 million to buy out
an outside group of investors who had put up the money
used by the
Seventh Defendant to acquire a development property of about 5.4
hectares in extent at Ilala Ridge in La Lucia, KwaZulu-Natal
(“the
llala Ridge property”);
12(1).8
the Seventh Defendant:
12(1).8.1
had purchased the Ilala Ridge property;
12(1).8.2
had obtained all the official approvals, except for building plan
approvals, that were necessary for its development
as an upmarket
residential estate;
12(1).8.3
could not start the development until it received the US $3.5
million and bought out the outside investors; and
12(1).8.4
intended, once it started, to undertake the development on a ‘fast
track’ basis;
12(1).9
the Eighth Defendant intended to use the US $10 million to acquire
ownership of a development property of about 62 hectares
in extent in
Umdlothi, KwaZulu-Natal (“the Umdlothi property”);
12(1).10
the Eighth Defendant:
12(1).10.1
had concluded a contract for the purchase of the Umdlothi property;
12(1).10.2
had paid a deposit of US $2 million to the seller;
12(1).10.3
required the US $10 million to pay the balance of the purchase price
(US $8 million) and to refund the First Defendant
which had put up
the money for the deposit (US $2 million);
12(1).10.4
intended to develop the portion of the property not covered by
indigenous forest (which could not be disturbed by development)
into
a large, upmarket residential estate;
12(1).10.5
required an environmental authorisation for the development, which
it was likely to obtain in about March 2006; and
12(1).10.6
required the US $10 million by May 2006, otherwise it would lose the
opportunity to buy the property and the US $2 million
deposit it had
paid;
12(1).11
the Seventh and Eighth Defendants did not need to encumber their
properties with development bonds because the First Defendant,
which
was the main financier of property developments undertaken by Indawo
Investments, intended to provide the Seventh and Eighth
Defendants
with the money needed to pay for the development of the properties.”;
4.
replacing paragraph 12(2) with the following paragraph:
“
12(2).
The representations described in paragraph 12(1) were made to Bagash
and/or the Plaintiff on one or more of the following
occasions:
12(2).1
on about 18 May 2005 in an email from the Second Defendant to Bagash;
12(2).2
between about 18 May 2005 and about 11 November 2005 in telephone
conversations between the Second Defendant and Bagash;
12(2).3
on about 12 and 13 November 2005 during a meeting in Dubai attended
by the Second and Third Defendants, Lourens and Bagash;
12(2).4
between about 14 November 2005 and about 14 December 2005 in
telephone conversations between the Second Defendant and Bagash;
12(2).5
on about 15 December 2005 during a meeting in Dubal attended by the
Second and Third Defendants and Bagash; and
12(2).6
on about 12 to 16 January 2006 during meetings in Johannesburg and
Durban attended by Second, Fourth, Fifth and Sixth Defendants
and
Bagash.”;
5.
replacing paragraph 13 with the following paragraphs:
“
13(1).
When making the representations referred to in paragraph 12(1) above,
the Second Defendant and/or the Fourth Defendant, acting
on their own
behalf and on behalf of the First, Third, Fifth and Sixth Defendants,
were aware that the representations were false
in the respects
specified below:
13(1).1
the representation referred to in paragraph 12(i).4.1 above was
false because the group,
alternatively,
the First Defendant, which was the largest entity in the group, was
worth less than R50 million;
13(1).2
the representation referred to in paragraph 12(1).5 above was false
because Indawo Investments was busy with property developments
on
other properties at a total cost of no more than R100 million;
13(1).3
the representation referred to in paragraph 12(1).7 was false
because the First to Sixth Defendants actually intended causing
the
Seventh Respondent to pay the money, alternatively a substantial
portion of the money, directly, or indirectly through other
entities:
13(1).3.1
to the First Defendant;
13(1).3.2
to various trusts and other entities associated with the Second and
Third Defendants and/or members of their families;
13(1).3.3
to various trusts and other entities associated with the Fourth to
Sixth Defendants and/or members of their families
and/or Lourens;
and/or
13(1)3.4
to various other companies owned or controlled by the Indawo
Investment Trust;
13(1).4
the representation referred to in paragraph 12(1).8.1 above was
false because the Seventh Defendant only purchased the
llala Ridge
property in November 2006;
13(1).5
the representation referred to in paragraph 12(1)8.2 above was false
because the Seventh Defendant had not obtained any
official approvals
for the development of the Ilala Ridge property;
13(1).6
the representation referred to in paragraph 12(1).9 above was false
because the First to Sixth Defendants actually intended
causing the
Eighth Defendant to pay the money, alternatively a substantial
portion of the money, directly or indirectly through
other entities:
13(1).6.1
to the First Defendant;
13(1).6.2
to various trusts and other entities associated with the Second and
Third Defendants and/or members of their families;
13(1).6.3
to various trusts and other entities associated with the Fourth to
Sixth Defendants and/or members of their families
and/or Lourens;
and/or
13(1).6.4
to various other companies owned or controlled by the Indawo
Investment Trust;
13(1).7
the representation referred to in paragraph 12(1).10.2 above and the
consequent representation referred to in paragraph
12(1).10.3 above
were false because the amount of the deposit was R2 million.
13(2).
When making the said representations, the Second Defendant and/or
the Fourth Defendant, acting on their own behalf and on
behalf of the
First, Third, Fifth and Sixth Defendants, intended that Bagash or the
entity established by him would act on some
or all of the said
representations by making the loans to the Seventh and Eighth
Defendants referred to in paragraph 11 above and
thereby prejudice
himself or that entity, and made such representations unlawfully and
in breach of their duty not to mislead Bagash
or the Plaintiff.
13(3).
In the alternative to paragraphs 13(1)
and 13(2) above
, the Plaintiff avers
that by the time of the establishment of the Plaintiff by Bagash on
19 December 2005 as the entity which would
make the loans, the Second
Defendant and/or the Fourth Defendant, acting on their own behalf and
on behalf of the First, Third,
Fifth and Sixth Defendants, knew:
13(3).1
of the falsity of the representations referred to in paragraph 12(1)
above;
13(3).2.
the true facts were as set out in paragraphs 13(1).1 to 13(1).7
above;
13(3).3
that the Plaintiff did not know of the falsity of the
representations and did not know the true facts; and
13(3).4
that if the Plaintiff acted on the truth of some or all of the said
representations and in ignorance of the true facts
by making the
loans to the Seventh and Eighth Defendants referred to in paragraph
11 above, the Plaintiff would thereby prejudice
itself.
13(4).
Further to paragraph 13(3) above, the Second Defendant and/or the
Fourth Defendant, acting on their own behalf and on behalf
of the
First, Third, Fifth and Sixth Defendants:
13(4).1
had a duty to inform the Plaintiff of the falsity of the
representations and of the true facts; and
13(4).2
despite this duty, intentionally and unlawfully failed to so inform
the Plaintiff.”;
6.
replacing paragraph 14 with the following paragraph:
“
14.
Relying on the truth of the representations referred to in paragraph
12(1) above and as a result of one or more or all of the
representations, or alternatively as a result of one or more or all
of the non-disclosures referred to in paragraphs 13(3) and
13(4)
above:
14.1
on 19 December 2005 Bagash caused the Plaintiff to be incorporated
and registered, with himself as the sole shareholder;
14.2
on 20 December 2005 Bagash, acting on behalf of the Plaintiff,
signed the written agreements with the Seventh and Eighth Defendants
referred to in paragraphs 15 and 18 below;
14.3
on 21 December 2005 Bagash, acting on behalf of the Plaintiff,
transferred to the bank account of the Seventh Defendant the
US $3.5
million loan referred to in the written agreement with the Seventh
Defendant; and
14.4
on 14 March 2006 Bagash, acting on behalf of the Plaintiff,
transferred to the bank account of the Eighth Defendant US$ 7.5
million of the US $10 million loan referred to in the written
agreement with the Eighth Defendant.”;
7.
replacing paragraph 15 with the following paragraph:
“
15.
On 28 December 2005 and at Durban the Plaintiff, duly represented by
Bagash, and the Seventh Defendant, duly represented by
the Fourth
Defendant, concluded a written agreement, a copy of which is annexed
hereto and marked “A”.”;
8.
replacing paragraph 16 with the following paragraph:
“
16.
The said agreement between the Plaintiff and the Seventh Defendant
(annexure “A” hereto) was signed by Bagash on
behalf of
the Plaintiff in Dubai on 20 December 2005 and by the Fourth
Defendant on behalf of the Seventh Defendant on 28 December
2005.”;
9.
replacing paragraph 17 with the following paragraph:
“
17.
The material terms of the said agreement between the Plaintiff and
the Seventh Defendant (annexure “A” hereto)
included the
following:
17.1
the Plaintiff would lend US $3.5 million to the Seventh Defendant
(clauses 1 and 4);
17.2
the purpose of the loan was to finance the purchase of land for
selected developments in KwaZulu-Natal (clause 3);
17.3
the Seventh Defendant would repay the capital amount of the loan at
the end of the 18th month after the draw down of the initial
loan
amount (clause 5.1.1.);
17.4
the Seventh Defendant would pay the Plaintiff 50% of the profits
realised in each of the applicable projects (clauses 3 and
5);
17.5
the Plaintiff would be paid its share of the profits in two
tranches, namely:
17.5.1
a first instalment of 8% per annum of the initial loan amount,
payable together with the capital amount at the end of the
18th month
after the draw down of the initial loan amount (clause 5.1.1);
17.5.2
the balance in the 42nd month after the draw down of the initial loan
amount (clause 5.1.2):
17.6
should unforeseen circumstances arise, the repayment of the loan
amount and the profit share could be delayed by a maximum
of three
months (clause 8.6);
17.7
as security for the loan, the Seventh Defendant would procure the
cession to the Plaintiff of 50% of the shares in the relevant
property holding company (clause 6); and
17.8
the seventh Defendant would pay the Plaintiff a loan raising fee of
3% of the total loan amount, to be paid on the first draw
down of the
development loan for the development costs of a specific project from
the commercial bank (Absa) and which shall form
part of the cost of
the project (clause 7).”;
10.
replacing paragraph 18 with the following paragraph:
“
18.
On 28 December 2005 and at Durban the Plaintiff, duly represented by
Bagash, and the Eighth Defendant, duly represented by
the Fourth
Defendant, concluded a written agreement, a copy of which is annexed
hereto and marked “B”.”;
11.
replacing paragraph 19 with the following paragraph:
“
19
The said agreement between the Plaintiff and the Eighth Defendant
(annexure “B” hereto) was signed by Bagash on
behalf of
the Plaintiff in Dubai on 20 December 2005 and by the Fourth
Defendant on behalf of the Eighth Defendant on 28 December
2005.”;
12.
replacing paragraph 20 with the following paragraph:
“
20.
The material terms of the said agreement between the Plaintiff and
the Eighth Defendant (annexure “A” hereto) included
the
following:
20.1
the Plaintiff would lend US $10 million to the Eighth Defendant
(clauses I and 4);
20.2
the purpose of the loan was to finance the purchase of land for
selected developments in KwaZulu-Natal (clause 3);
20.3
the Eighth Defendant would repay the capital amount of the loan at
the end of the 18th month after the draw down of the initial
loan
amount (clause 5.1.1.);
20.4
the Eighth Defendant would pay the Plaintiff 50% of the profits
realised in each of the applicable projects (clauses 3 and
5);
20.5
the Plaintiff would be paid its share of the profits in two tranches,
namely:
20.5.1
a first instalment of 8% per annum of the initial loan amount,
payable together with the capital amount at the end of the
18th month
after the draw down of the initial loan amount (clause 5.1.1);
20.5.2
the balance in the 42nd month after the draw down of the initial loan
amount (clause 5.1.2);
20.6
should unforeseen circumstances arise, the repayment of the loan
amount and the profit share could be delayed by a maximum
of three
months (clause 8.6);
20.7
as security for the loan, the Eighth Defendant would procure the
cession to the Plaintiff of 50% of the shares in the relevant
property holding company (clause 6); and
20.8
the Eighth Defendant would pay the Plaintiff a loan raising fee of
3% of the total loan amount, to be paid on the first draw
down of the
development loan for the development costs of a specific project from
the commercial bank (Absa) and which shall form
part of the cost of
the project (clause 7).”;
13.
replacing paragraph 21 with the following paragraph:
“
21.
On about 25 April 2006 and at Umhlanga the Second Defendant and the
Fourth Defendant, acting on their own behalf and on behalf
of the
First, Third, Fifth and Sixth Defendants, presented Bagash with two
unsigned written agreements and requested that he sign
them on behalf
of the Plaintiff.”;
14.
replacing paragraph 22 with the following paragraph:
“
22
In order to induce Bagash to sign the said written agreements, when
and shortly after handing Bagash the unsigned agreements
the Second
Defendant and/or the Fourth Defendant, acting on their own behalf and
on behalf of the First, Third, Fifth and Sixth
Defendants, made the
following material representations:
22.1
the First to Sixth Defendants and Indawo Investments needed to
present to the South African Reserve Bank (“the SARB”)
agreements in those terms signed by Bagash on behalf of the
Plaintiff; and
22.2
if Bagash signed the agreements they would be used for that purpose
alone and the agreements the Plaintiff had concluded in
December
2005, namely annexures “A” and “B” hereto,
would remain the real agreements.”;
15.
replacing paragraph 23 with the following paragraph:
“
23.
When making the representation referred to in paragraph 22.2 above,
the Second Defendant and/or the Fourth Defendant, acting
on their own
behalf and on behalf of the First, Third, Fifth and Sixth Defendants,
were aware that it was false and intended to
induce Bagash to sign
the two agreements on behalf of the Plaintiff to the detriment of the
Plaintiff, and made such representation
unlawfully and in breach of
their duty not to mislead Bagash or the Plaintiff. More specifically:
23.1
as to such falsity and the knowledge of the Second Defendant and/or
the Fourth Defendant thereof, they knew that if Bagash
signed the two
agreements on behalf of the Plaintiff the First to Sixth Defendants
intended to take up the attitude that they were
genuine agreements
which, together, replaced the Plaintiff’s agreement with the
Eighth Defendant (annexure “B”
hereto”) with an
agreement with the Heritage Investment Trust; and
23.2
as to the detriment to the Plaintiff, and the knowledge of the Second
Defendant and/or the Fourth Defendant thereof, they knew
that the
terms of the agreement between the Plaintiff and the Heritage
Investment Trust were less favourable to the Plaintiff than
the terms
of its agreement with the Eighth Defendant (annexure “B”
hereto”) in that, amongst other things:
23.2.1
the Plaintiff would become a shareholder of the Eighth Defendant,
whereas previously it had been only a creditor of the
Eighth
Defendant;
23.2.2
the interest on the Plaintiff’s loan to the Eighth Defendant
would be reduced from 8% per annum to the US dollar base
rate;
23.2.3
the said loan would be unsecured, whereas previously it had been
secured by a cession of the shares of the company holding
the
property acquired with the loan;
23.2.4
the Plaintiff would lose its entitlement to the 3% loan raising fee;
and
23.2.5
the Plaintiff would lose the 42 month outer limit on the period
within which the Eighth Defendant had to pay the balance
of its share
of the profit of the development of the Umdhloti property.”;
16.
replacing paragraph 24 with the following paragraph:
“
24.
Relying on the truth of the representations referred to in paragraph
22 above, Bagash signed the said written agreements on
behalf of the
Plaintiff, whereupon the Fourth Defendant signed them on behalf of
the Eighth Defendant (the first agreement) and
the Heritage
Investment Trust (the second agreement). Copies of the signed
agreements are annexed hereto marked “C”
and “D”.”;
17.
replacing paragraph 25 with the following paragraph:
“
25.
Relying on the truth of the representations referred to in
paragraphs 12(1) and/or 22 above and as a result of one or more
or
all of the representations, and/or as a result of the non-disclosures
referred to in paragraphs 13(3) and 13(4) above, on 17
May 2006,
Bagash, acting on behalf of the Plaintiff, transferred to the bank
account of the Eighth Defendant a further US 2 million
of the US $10
million loan referred to in the written agreement with the Eighth
Defendant (annexure “B” hereto”).”;
18.
replacing paragraph 26 with the following paragraph:
“
26.
The amount of US $3.5 million paid by the Plaintiff to the Seventh
Defendant on 21 December 2005 was not used by the Seventh
Defendant
to buy out an outside group of investors who had put up the money
used by the Seventh Defendant to acquire the Ilala
Ridge property or
to finance the purchase of the Ilala Ridge property.”;
19.
replacing paragraph 27 with the following paragraph:
“
27.
The amount of US $7.5 million paid by the Plaintiff to the Eighth
Defendant on 14 March 2006 was not used by the Eighth Defendant
to
finance the purchase of the Umdhloti property.”;
20.
replacing paragraph 28 with the following paragraph:
“
28.
The amount of US $2 million paid by the Plaintiff to the Eighth
Defendant on 17 May 2006 was not used by the Eighth Defendant
to
finance the purchase of the Umdloti property.”;
21.
replacing paragraph 29 with the following paragraph:
“
29.
Unbeknown to Bagash and the Plaintiff, the First Defendant, the
Second Defendant, the Third Defendant, the Fourth Defendant,
the
Fifth Defendant and/or the Sixth Defendant dishonestly caused the
Seventh and Eighth Defendants to on-pay the loan amounts
referred to
in paragraphs 26 to 28 above, alternatively a substantial portion of
the money, directly, or indirectly through other
entities:
29.1
to the First Defendant
29.2
to various trusts and other entities associated with the Second and
Third Defendants and/or members of their families;
29.3
to various trusts and other entities associated with the Fourth to
Sixth Defendants and/or members of their families and/or
Lourens;
and/or
29.4
to various other companies owned or controlled by the Indawo
Investment Trust.”;
22.
replacing paragraph 30 with the following paragraph:
“
30.
To date:
30.1
the Seventh Defendant has not undertaken any property development on
the Ilala Ridge property;
30.2
the Eighth Defendant has not undertaken any property development on
the Umdlothi property; and
30.3
neither of the Seventh Defendant or the Eighth Defendant has repaid
the Plaintiff the loan amounts referred to in paragraphs
26 to 28
above, any interest on such amounts or any other amounts.”;
23.
replacing paragraph 31 with the following paragraph:
“
31.
In making the misrepresentations described in paragraphs 12(1) and/or
22 above, and/or as a result of the non-disclosures referred
to in
paragraphs 13(3) and 13(4) above, and in acting in the manner
described in paragraph 29 above, the First to Sixth Defendants
acted
wrongfully and dishonestly and caused the Plaintiff to suffer the
following harm:
31.1
the loss of the US $3.5 million it paid to the Seventh Defendant on
21 December 2005;
31.2
the loss of the US $7.5 million it paid to the Eighth Defendant on
14 March 2006, and
31.3
the loss of the US $2 million it paid to the Eighth Defendant on 17
May 2006.”;
24.
replacing paragraph 32 with the following paragraph:
“
32.
As a result of the First to Sixth Defendants’ actions the
Plaintiff has suffered damage of US $13 million.”;
25.
replacing paragraph 33 with the following paragraph:
“
33.
Pursuant to the settlement of this matter with the Sixth Defendant,
he paid the Plaintiff R6 050 000 on or after 28 July 2011.”;
26.
replacing paragraph 34 with the following paragraph:
“
34.
Despite demand the First to Fifth Defendants have failed and/or
refused to pay the Plaintiff any part of the US $13 million
damage it
has suffered.”;
27.
deleting paragraph 35;
28.
replacing the prayer with the following prayer:
“
WHEREFORE
the Plaintiff prays for judgment against the First to Fifth
Defendants, jointly and severally, the one paying the others
to be
absolved, for:
(a)
payment of the sum of US $13 million, less the US Dollar equivalent
of R6 050 000 on 28 July 2011;
(b)
interest at the prescribed rate on US $3.5 million from 21 December
2005,
alternatively
11 February 2009,
further alternatively
from the date of judgment until the date of payment;
(c)
interest at the prescribed rate on US $7.5 million from 14 March
2006,
alternatively
11 February 2009,
further alternatively
from the date of judgment until the date of payment;
(d)
interest at the prescribed rate on US $2 million from 17 May 2006,
alternatively
11 February 2009,
further alternatively
from the date of judgment, until the date of payment
(e)
in the alternative to paragraph (d):
(i)
interest at the prescribed rate on US $2 million from 17 May 2006,
alternatively
11 February 2009, until 28 July 2011; plus
(ii)
interest at the prescribed rate on US $2 million less the US Dollar
equivalent of R6 050 000 on 28 July 2011, from 28
July 2011
until the date of payment;
(f)
in the further alternative to paragraph
(d)
, interest at the prescribed rate on
US $2 million less the US Dollar equivalent of R6 050 000 on 28 July
2011, from the date of
judgment until the date of payment;
(g)
costs of suit, including the costs of two counsel; and
(h)
further and/or alternative relief.”
[7]
On 19 February 2014 the defendants delivered a notice of objection to
the plaintiff’s proposed amendments anchored on
the following
four grounds: (a) the proposed amendments would require the
defendants to plead once more to a materially and substantially
different version of the plaintiff’s case, (b) the proposed
amendments constitute an abuse of the process envisaged by the
Uniform Rules of this court, (c) the proposed amended claim is
excipiable since it is vague and embarrassing, alternatively, it
fails to disclose a cause of action, and (d) the proposed amended
particulars of claim seek to withdraw admissions made by the
plaintiff in its existing particulars of claim without explanation.
[8]
The remainder of the defendants has not objected to the proposed
amendments. In its proposed amendments the plaintiff firstly
seeks to
withdraw its claim in the amount of US$52 262 565, secondly
to reflect the reduction of the quantum of damages
it claims from the
remaining defendants by deducting the amount of R6 050 000
paid to the plaintiff by the sixth defendant
in terms of the
aforesaid settlement agreement and thirdly to amend the facts upon
which its claim for US$13 million is based
and the legal
consequences flowing therefrom. The defendants’ opposition to
this application is limited to this third leg
of the proposed
amendments.
[9]
During the course of argument counsel referred me to a number of
authorities on the subject. What can be gleaned from those
authorities is that our law relating to the amendment of pleadings is
fully developed, and I therefore proceed to state what I
conceive to
be the legal principles distilled from such authorities which are
applicable to this application. It seems to me that
the following
legal principles have crystallised and are trite:
(a)
The party seeking an amendment bears the onus of showing that it is
made
bona fide
and that there is an absence of prejudice to other party,
(b)
The granting or refusal of an application for amendment of pleadings
is a matter for the discretion of the court which discretion
is to be
exercised judicially in the light of all the facts and circumstances
before it,
(c)
The primary object of allowing an amendment is to obtain a proper
ventilation of the dispute between the adversaries,
(d)
The vital consideration in the decision whether to grant an amendment
is whether the amendment will cause the other party such
prejudice as
cannot be cured by an order for costs and where appropriate, a
postponement,
(e)
The litigant seeking to make an amendment is in fact craving an
indulgence and must offer some explanation as to why the amendment
is
required and more especially if the application for amendment is not
timeously made, some reasonably satisfactory account of
the delay,
(f)
Where a proposed amendment will not contribute to the determination
by the court of the real issues between the parties, it
ought not to
be granted,
(g)
One of the grounds upon which a proposed amendment can successfully
be opposed is that it would resuscitate a prescribed claim
or defeat
a statutory limitation as to time, and
(h)
The mere fact that the amendment sought will result in the
introduction of an additional new cause of action or to add a new
claim is not
per se
a ground for refusing such amendment. It is to be cautioned that
there is some authority that such amendment should not be allowed
but
no general rule to that effect has been laid down.
[10]
The object of pleadings has been authoritatively laid down by Innes
CJ in
Robinson
v Randfontein Estates Gold Mining Co. Ltd
as follows:
[2]
‘
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause
prejudice or
would prevent fully enquiry. But within those limits the Court has a
wide discretion. For pleadings are made for the
Court, not the Court
for pleadings.’
[11]
And as was aptly stated by Galgut DJP in
Four
Tower Investments (Pty) Ltd v Andre’s Motors
:
[3]
‘
The
function of a court is, of course, to resolve disputes between
litigating parties, and justice can only be done if the real
issues
are defined in the pleadings and ventilated in court. For this reason
it is by now well established that an application
for amendment will
always be allowed unless it is made
mala
fide
or would cause prejudice to the
other party which cannot be compensated for by an order for costs or
by some other suitable order
such as a postponement.’
[12]
Having briefly outlined the factual background and the applicable
legal principles in
casu
,
I advert to deal with the four grounds of objection so raised in
sequence.
[13]
The first ground of objection advanced by the defendants is that the
plaintiff seeks to make such substantial changes to the
existing
particulars of claim that the heart of its claim changes entirely.
Counsel for the defendants contended that the proposed
amendments
significantly and materially alter the factual and legal basis upon
which the plaintiff pleads (a) its cause of action,
(b) the quantum
of damages the plaintiff alleges it suffered and (c) how the
plaintiff suffered those damages.
[14]
Counsel for the defendants contended further that the changes sought
to be made go far beyond the correction of inadvertent
errors or the
tweaking of factual details. He submitted that the proposed
amendments are on the scale of a complete revision of
the factual
basis for the plaintiff’s claim. In his view, all that remains
recognisable in the proposed amended particulars
of claim is that the
plaintiff’s case continues to rely upon alleged
misrepresentations ascribed to the defendants albeit
vastly different
to those foreshadowed in the existing particulars of claim which are
alleged to have been made by different parties
on different occasions
and had allegedly induced the plaintiff to conclude different
agreements.
[15]
He submitted that the defendants will be prejudiced if the proposed
amendments are allowed because the plaintiff will have
had an
unwarranted opportunity to restate its claim in its entirety, and the
defendants would be required to plead once more to
a materially and
substantially different version of the plaintiff’s case as the
proposed amendments would bring about certain
fundamental changes if
they are allowed. He enumerated what he considered to be fundamental
changes which the proposed amendment
would allegedly bring.
[16]
This contention is of course the very opposite of what counsel for
the plaintiff contends in this matter. Counsel for the plaintiff
submitted that the basis of the plaintiff’s claim remains the
same and is anchored on the misrepresentations by or on behalf
of the
first to sixth defendants. He continued and contended that the manner
in which the plaintiff suffered the damages in question
remain the
same. He pointed out that the quantum of the claim will indeed change
significantly taking into account that the plaintiff
seeks to abandon
its first existing claim and thereafter deducting amount of
R6 050 000 from the remaining claim which
amount was paid
by the sixth defendant to the plaintiff in terms of the settlement
agreement.
[17]
I need to emphasise that clarity and precision are the allies of
order in law whereas the impression and vagueness all two
often are
its enemies. It follows, therefore, that justice can only be done if
the real issues are defined in the pleadings and
ventilated in
court.
[4]
The fact that the
defendants have pleaded to the existing particulars of claim cannot
be a bar to the proposed amendments. I have
closely examined the
nature and extent of the proposed amendments, compared them with the
existing particulars of claim, and it
seems to me that the essential
grounds upon which the defendants are allegedly liable to the
plaintiff remain constant throughout.
As is the case in the existing
particulars of claim, the plaintiff’s claim on the proposed
amendments is predicated on the
facts that certain monies were
advanced and lost in consequence of the material misrepresentations
of the first to sixth defendants.
[18]
In the circumstances I find it idle to contend that the defendants
will be prejudiced by the proposed amendments in a manner
which
cannot be compensated by a suitable order as to costs. By its very
nature an amendment may differ in certain respects from
the case as
already pleaded. In that event, it would be open to the defendants to
amend their pleas should they so wish. Having
reached this conclusion
it seems to me that the issue of prescription does not arise.
[5]
[19]
The second ground of objection advanced by the defendants is that the
proposed amendments constitute an abuse of the process
envisaged by
the Rules of this court. The gravamens of the defendants’
complaints are that:
(a)
In paragraphs 13 to 16 of the Rule 28 (1) notice, the plaintiff seeks
to introduce fresh allegations of further misrepresentations
it
alleges the first to sixth defendants made in relation to two
agreements entered into on 25 April 2006 and it also seeks to
attach
copies of agreements concluded on 25 April 2006 as “C”
and “D” to the particulars of claim.
(b)
In its existing particulars of claim, the plaintiff does not mention
the two agreements of 25 April 2006 and it also does not
mention the
misrepresentations that allegedly induced it to enter into those
agreements. Only after the first to sixth defendants
alleged the
existence of the agreements of 25 April 2006 in their pleas did the
plaintiff see fit to allege the existence of the
agreements and also
to allege that the plaintiff concluded them because of
misrepresentations allegedly made by the first to sixth
defendants.
(c)
The plaintiff seeks to remove all allegations, contained in
paragraphs 11, 12(1), 14, 15, 16, 25, 26, 27, 28 and 30 of the
plaintiff’s existing particulars of claim, about a joint
venture alleged to have been concluded by the plaintiff and the first
defendant. The existence of the joint venture forms an integral part
of the plaintiff’s cause of action in its existing particulars
of claim. In their pleas, the first, second and third defendants have
denied the existence of any joint venture between the plaintiff
and
the first defendant, and the plaintiff, in response, now seeks to
amend its particulars of claim to accord with such denial.
[20]
Counsel for the defendants submitted that the proposed amendments are
an attempt on the part of the plaintiff to tailor its
case to deal
with difficulties presented by facts pleaded by the defendants. He
submitted further that Rule 28 is not designed
to afford the
plaintiff an opportunity to present a further, different version of
events in response to counter-allegations made
by the defendants in
their pleas, nor does it permit the plaintiff, after the fact, to
explain away aspects of the defendants’
case that do not fit
the plaintiffs’ initial version of the events.
[21]
He also submitted that the cause of action in respect of the bulk of
the representations now pleaded for the very first time
(in new
paragraphs 12 and 22 of the proposed amendments) has prescribed. His
contention is that the proposed amendments are not
bona
fide
and
will prejudice the defendants in a manner that cannot be remedied by
a costs order or by a postponement. And would afford the
plaintiff
unwarranted opportunity to fashion its case to neutralise the defence
pleaded and the fact that the defendants would
be required to plead
once more to a materially and substantially different version of the
plaintiff’s case.
[22]
I indicated in paragraph 18 of this judgment that in light of my
finding under the first ground of objection, the issue of
prescription does not arise. In
Price
Waterhouse Coopers Inc & others v National Potato Co-operative
Ltd
Southwood AJA stated:
[6]
‘…
The
mere application of a particular court procedure for a purpose other
than that for which it was primarily intended is typical,
but not
complete proof of
mala fides
.
In order to prove
mala fides
a further inference that an improper result was intended is
required.’
[23]
It is common cause that this matter has not yet been allocated a
trial date. I agree with counsel for the plaintiff that should
the
proposed amendment be granted, the defendants will have ample
opportunity in which to consider the amendments made in the
particulars of claim in their amended form. In those circumstances,
the door will still be opened to the defendants to consider
them and
to plead on them, should they so wish. I have already indicated in
para 5 above, that the evidence of the plaintiff on
the proposed
amendments was that they were conceived as a result of the review and
reconsideration of the plaintiff’s case
by a new team of senior
counsel which included an assessment of the matters raised in the
defendants’ pleas and taking into
account written agreements
which are annexures “C” and “D” as well.
[24]
The third ground of objection advanced by the defendants is that the
plaintiff’s proposed amended claim is excipiable
because it is
vague and embarrassing, alternatively, it does not disclose a cause
of action in that the plaintiff does not state
the dates upon which
unlawful conduct alleged to have been perpetrated by the first to
sixth defendants which sustains the plaintiff’s
cause of
action, occurred. This ground is predicated firstly on assertion that
the plaintiff has not alleged in paragraph 21 of
its notice of the
proposed amendment the dates upon which the first to sixth defendants
caused the seventh and eighth defendants
to make payments to various
entities specified in that paragraph. And secondly, that in paragraph
3 of its notice of the proposed
amendment, the plaintiff has not
alleged when or how or in what format each of the misrepresentations
alleged to have been made
by the first to sixth defendants were made,
save to state in paragraph 2 of its notice of the proposed amendment
that the plaintiff
was invited to lend money to the seventh and
eighth defendants between about May 2005 and about January 2006 as
well as to list
in paragraph 4 thereof, a series of conversations,
email messages and meetings that are alleged to have occurred.
[25]
Counsel for the plaintiff submitted that in the proposed amended
particulars of claim, the plaintiff does no more than ascribe
a large
and at times vague body of representations to the defendants without
pleading which representations were attributable,
to which defendant
and on what occasion. He contended that such vagueness would make it
impossible for the defendants to plead
to the proposed particulars of
claim. He took the view that the suggestion by the plaintiff in its
heads of argument that the defendants
are at liberty to request
particulars for trial to cure any lack of specificity in the
particulars of claim while mounting to a
concession that the proposed
amended particulars of claim do, in fact lack specificity, does not
relieve the plaintiff of the obligation
to plead in sufficient detail
to enable the defendants to plead.
[26]
Counsel for the plaintiff submitted that the plaintiff alleges in
paragraph 2 of the proposed amendments that the events in
question
took place between May 2005 and about January 2006, that in paragraph
3 thereof it describes in detail the material misrepresentations
in
question and stated further that the loans referred to in the first
line of the proposed new paragraph 12 (1) of the proposed
amendments
set out in paragraph 3 of its notice are the two loans described in
the proposed new paragraph 11 of proposed amendments.
He submitted
further that the plaintiff sets out further in paragraph 4 of its
notice of the proposed amendments specific dates
and time periods
which are associated with the particular misrepresentations which are
fully described therein.
[27]
With regard to the assertion that the plaintiff has not alleged, in
paragraph 21 of its notice of proposed amendments, the
dates upon
which the first to sixth defendants caused the seventh and eighth
defendants to make payments to the various entities
described there,
counsel for the plaintiff contended that these payments took place
without the knowledge of both Mr Bagash and
the plaintiff. He then
submitted that in any event, all of the defendants have full
knowledge of the facts in question and are
therefore quite easily
able to say whether the payments alleged to have been made were in
fact made, and when that took place.
[28]
I cannot find that these criticisms are fully justified. I am mindful
of the fact that a party cannot introduce an amendment
which will
render a pleading excipiable.
[7]
It, however, seems to me that the issues raised in the proposed
amendments are such that they ought to be ventilated and decided
between the parties in the course of the trial of this action.
[29]
In the result I am driven to conclude that the dates and/or the
period within which the said misrepresentations are alleged
to have
arisen are easily ascertainable from the proposed amendments to
enable the defendants to plead thereto. The same can also
be said
about the types, nature and/or extent of the alleged
misrepresentations. I am not persuaded that the facts set out in the
proposed amendments sustain the conclusion reached by the defendants
on this issue.
[30]
The final ground of objection advanced by the defendants is that the
plaintiff’s proposed amended particulars of claim
contain the
withdrawal of admissions made in the plaintiff’s existing
particulars of claim. The foundation of this contention
is that in
paragraph 21 of the plaintiff’s existing particulars of claim
the plaintiff asserted that it had duly performed
its obligations in
terms of the agreements which form annexures “A” and “B”
to its existing particulars
of claim by paying US $13 million to the
seventh and eighth defendants. Counsel for the defendants was of the
view that this constituted
an admission which the plaintiff seeks to
withdraw without providing an explanation justifying its withdrawal.
He contended that
the defendants would be prejudiced by such
withdrawal.
[31]
Allied to that contention was that even if such is found not
technically to be an admission in the strict sense of the word
the
payment in question, pleaded, as it is, as having been pleaded in the
plaintiff’s existing particulars of claim as having
being made
under a joint venture is so fundamentally at odds with the version
the plaintiff now seeks to advance in the proposed
amended
particulars of claim that, it requires an explanation to justify its
withdrawal which explanation the plaintiff has failed
to give. I have
carefully considered the contents of paragraph 21 of the existing
particulars of claim and I am not persuaded that
what is contained
therein amounts to the kind of admission envisaged in s 15 of the
Civil Proceedings Evidence Act 25 of 1965.
I do not believe therefore
that this point can in anyway avail the defendants. I must
accordingly hold against the defendants on
this argument.
[32]
Overall, in all the circumstances of this case I am not persuaded
that the application to amend was made
mala
fide
or that the amendment would cause
an injustice to the defendants who cannot be compensated by an
appropriate order for costs.
[33]
There remain two further issues which I must deal with. The first
issue relates to the application for condonation for the
failure of
the plaintiff to bring this application within the period as required
in the Rule 28 (4) of the Uniform Rules of this
court. It is common
cause that the plaintiff failed to lodge this application within 10
days of delivery of the defendants’
objection to its proposed
amendments as is required by Rule 28 (4). The papers demonstrate that
the plaintiff’s notice of
the proposed amendments was delivered
to the defendants on 5 February 2014. The defendants’
objections to the proposed amendments
were served on 19 February
2014. In response to the defendants’ objections to the proposed
amendments, the plaintiff delivered
its application for leave to
amend only on 28 May 2014.
[34]
In dealing with the application of this nature, the following factors
are apposite (a) an application for an extension of time
or
condonation must furnish an explanation for the default that is
sufficiently full to enable the court to understand how it really
came about and to assess the applicant’s conduct and
motives,
[8]
(b) the explanation
for the delay must be reasonable,
[9]
(c) the grant of the extension or condonation must not prejudice the
other party in any way that cannot be compensated for by a
suitable
order as to the postponement and costs,
[10]
and (d) there must be a reasonable possibility of the applicant
succeeding if the extension or condonation is granted.
[11]
[35]
With regard to this aspect the plaintiff has placed the following
facts before the court:
(a)
The new counsel with whom Mr Bagash consulted in Mumbai in November
2013 is Mr
Breitenbach
of the Cape Bar. Mr Jazbhay of the plaintiff’s attorneys first
consulted with Mr
Breitenbach
in January 2013. After Mr
Breitenbach
had read his way into the matter, Mr Jazbhay organised a consultation
between counsel and the plaintiff. This proved difficult
because,
amongst other things, it involved international travel. The
consultation was eventually held on 8 and 9 November 2013.
(b)
After Mr
Breitenbach
had returned to South Africa, Mr
Newdigate
SC, also of the Cape Bar, was briefed
in this matter together with Mr Breitenbach. Initially Mr
Gauntlett
SC was appointed, but Mr
Newdigate
was then appointed in his stead. Mr
Newdigate
read his way into the matter and
settled the notice of intention to amend expeditiously.
(c)
Mr
Breitenbach
acted as a Judge of the Cape High Court from 1 to 28 March 2014, and
was therefore unable to attend to the settling of the papers
in this
application. Because of the involvement of Mr
Breitenbach
in the matter, it was regarded by the
plaintiff, as well as the plaintiff’s attorneys, as important
that Mr
Breitenbach
should also have the opportunity to settle the papers in this
application.
(d)
These circumstances were drawn to the attention of the first to third
defendants’ attorneys by means of a letter dated
11 March 2014
(incorrectly dated 20 April 2014) the date on which Mr
Breitenbach’s
acting appointment would end. The defendants’ attorneys
responded by means of a letter dated 14 March 2014, refusing an
extension and giving no reasons for the refusal.
[36]
Counsel for the plaintiff submitted that the explanation in para 35
above is both full and reasonable and that no conceivable
prejudice
will be suffered by the defendants were such relief to be granted and
that the plaintiff has prospects of success in
its action against the
defendants as set out in the proposed amendment.
[37]
Counsel for the defendants pointed out that in spite of the fact that
the draft memorandum for a special allocation circulated
by the
plaintiff’s attorneys on 18 November 2013 indicated that
Gauntlett
and
Breitenbach
had
advised the plaintiff in respect of an amendment of its particulars
of claim, it appears that Mr
Newdigate
was subsequently appointed in the stead
of Mr
Gauntlett
.
Secondly, that Mr
Newdigate
appears to have been available to settle the application for leave to
amend within the prescribed time, and Mr
Breitenbach
acted on the bench only from 1 March 2014 until 28 March 2014. He
submitted that in the circumstances, the plaintiff has failed
to
provide reasonable grounds for an extension of the time period for
the filing of this application until 28 May 2014. He contended
further that the plaintiff has failed to show grounds to justify
condonation for the late filing of this application, as he believed
that the plaintiff has less than reasonable prospects of success in
this application for leave to amend.
[38]
I have already set out the factors which the court needs to take into
account in the exercise of its discretionary power to
condone any
non-compliance with the Rules of this court on good cause shown.
Having considered these factors in light of the explanation
given by
the plaintiff I am satisfied that the plaintiff’s failure to
bring this application within the period specified
in Rule 28 (4)
ought to be condoned.
[39]
The second issue which needs consideration is that of costs. Counsel
for the plaintiff submitted that the defendants have,
without valid
grounds, objected to the plaintiff’s proposed amendments, and
have put the plaintiff to the trouble and expenses
of bringing this
application. In the circumstances, he submitted, it would be just and
equitable that the defendants should be
ordered to pay the
plaintiff’s costs of the application. I pause to state that the
plaintiff engaged two senior counsel to
argue this application, and
the reasons advanced for that were the factual complexity and the
large sum of money involved in the
matter.
[40]
On the contrary, counsel for the defendants submitted that the
objections raised are substantial and demonstrably neither spurious
nor raised
mala fide
for purposes of delaying the hearing of this action and adjudication
of this claim.
[41]
I do not agree that the matter merited the employment of two senior
counsel by the plaintiff. With regard to the issue of costs,
the
general rule is that in the ordinary course, costs follow the result
but this rule is subject to a number of exceptions that
entitle the
court in the exercise of its discretion to limit or disallow in part
the costs to be recovered. I find that the plaintiff
was justified in
seeking these amendments. In the circumstances I find it appropriate
to order the plaintiff to pay the costs of
the application up to and
including the filing and service of the plaintiff’s replying
affidavit, and to direct the first
to third defendants to pay costs
of argument of this application jointly and severally, the one paying
and the other to be absolved.
[42]
In the result the following order shall issue:
Order
(a)
The failure of the plaintiff to bring this application within the
period specified in Rule 28 (4) of the Uniform Rules of this
court is
hereby condoned.
(b)
The plaintiff is hereby granted leave to amend its particulars of
claim in the respects set out in the plaintiff’s notice
in
terms of Rule 28(1), a copy whereof is annexed to the plaintiff’s
founding affidavit herein marked “A”.
(c)
The plaintiff is ordered to pay the costs of the application up to
and including the filing and service of its replying affidavit.
(d)
The first to third defendants are ordered to pay the costs of
argument of this application jointly and severally, the one paying
and the other to be absolved.
MNGUNI
J
APPEARANCES
:
Date
of Hearing : 29 April 2015
Date
of Judgment : 12 August 2015
Counsel
for the Applicant : Adv. J. A. Newdigate SC and
Adv.
A. M. Breitenbach SC
Instructed
by : Omar and Jazbhay Attorneys
Counsel
for the Respondents : Adv. J. J. Meiring
Instructed
by : Abba Parak Incorporated
[1]
Including
other defendants who take no part in this application.
[2]
1925
AD 173
at 198.
[3]
2005
(3) SA 39
(N) para 15.
[4]
See
Four
Tower Investments
supra para 15.
[5]
See
in this regard,
Rustenberg
Platinum Mines v Industrial Maintenance Painting Services
[2009] 1 All SA 275
(SCA) paras 10 and 19.
[6]
2004
(6) SA 66
(SCA) para 50.
[7]
See
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty)
Ltd and another
1967
(3) SA 632
(D) at 641A-B.
[8]
Premier,
Western Cape v Lakay
2012 (2) SA 1
(SCA) para 17.
[9]
Van
Wyk v Unitas Hospital & another (Open Democratic Advice Centre
as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 22.
[10]
Dalhouzie
v Bruwer
1970 (4) SA 566
(C) 572D,
Abraham
v City of Cape Town
1995 (2) SA 319
(C) at 322A-D.
[11]
Pienaar
v G North & Son (Pty) Ltd
1979
(4) SA 522
(O) at 523-524.