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[2014] ZAGPPHC 343
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Fourways Precinct (Pty) Ltd v Bentel Associates International (Pty) Ltd and Another (49962/2013) [2014] ZAGPPHC 343 (11 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 49962/2013
DATE:
11/6/2014
IN
THE MATTER BETWEEN:
FOURWAYS
PRECINCT (PTY)
LTD
.............................................................................
APPLICANT
AND
BENTEL
ASSOCIATES INTERNATIONAL (PTY) LTD
............................
FIRST
RESPONDENT
VAN
DIJKHORST,
K
..................................................................................
SECOND RESPONDENT
JUDGMENT
TOLMAY,
J:
INTRODUCTION:
[1]
This is an application in terms of section 33(1)(b)
alternatively
section 32(2) of the Arbitration Act 42 of 1965 (“the Act) for
review of an award on a special plea made on 5 July 2013
by the
second respondent (the Arbitrator) who has not filed notice of
opposition and thus presumably abides by the decision of
this court.
[2]
The applicant seeks the following relief:
2.1
That the arbitration award issued on 5 July 2013 be set aside in
terms of sec 33(1) of the Act;
2.2
Alternatively that the matter be remitted in terms of sec 32(2) of
the Act to the second respondent to adjudicate on the claims
struck
out in his 5 July 2013 award.
[3]
It is alleged by applicant (Fourways) that the Arbitrator committed a
gross irregularity and/or exceeded his powers in making
his award on
5 July 2013 on a second special plea raised by the first respondent
(Bentel), where all but 2 claims of Fourways were
struck out.
THE
BACKGROUND:
[4]
Bentel is a company who renders architectural services and who did
the design of a shopping mall for Fourways. The parties entered
into
a written agreement (client/consultant agreement) to this end.
[5]
A dispute arose between Fourways and Bentel pertaining to the payment
of a portion of Bentel’s professional fees in the
amount of ±
R5 000 000-00. Bentel claimed payment from Fourways for
professional fees and that claim was referred
to arbitration before
the Arbitrator in 2009. Fourways defended this claim and raised a
counter-claim (the 2010 claim). The parties
settled Bentel’s
claim on 29 September 2010 and postponed Fourways’ counterclaim
sine die
.
Further disputes arose and Fourways as a result of this paid Bentel
only half of the sum it was obliged to pay under the settlement
agreement and did not pursue its 2010 claim. Fourways’ failure
to make payment in terms of the settlement agreement was again
referred to the Arbitrator. Fourways disputed the Arbitrator’s
jurisdiction and the Arbitrator ruled he had jurisdiction
to hear
that dispute and found for Bentel pertaining to the payment of the
amount outstanding in terms of the settlement agreement.
Fourways
thereafter filed a number of amendments to its counterclaim, finally
culminating in the so-called 2013 claims. These claims
were postponed
to 1 – 19 July 2013. Bentel raised two special pleas against
the claims.
[6]
By agreement between the parties, the first week of the hearing in
July 2013 was devoted to three preliminary matters, namely,
the first
special plea, the second special plea and Bentel’s claim in
respect of rectification. Only the first special plea
and the second
special plea were ruled upon.
[7]
The first special plea raised questioned the jurisdiction of the
Arbitrator. It contended that none of Fourway’s claims
had been
referred to the Arbitrator in accordance with the provisions of
clause 18.1 of the client/ consultant agreement and was
accordingly
not before the Arbitrator.
[8]
The Arbitrator, after considering the parties’
argument, held that there had been proper compliance with the
provisions of
the relevant rules and stated as follows: “
[t]he
history shows actual conferment of jurisdiction upon myself by both
parties in respect of the counterclaim.
”
He accordingly dismissed the first special plea.
[9]
After handing down his award on the 3
rd
of July 2013, the parties proceeded to argue the second special
plea. There was no indication by any of the parties during
argument that evidence was required in order to determine the second
special plea. The relevance of this will become apparent
later on in
the judgment.
[10]
The second special plea was raised in the alternative to the second
special plea and in the event that it was found that Fourways’
claims were competently before the Court. The second special plea
contended that certain of the claims were raised outside the
liability limitation period agreed upon in clause 7.3 of the
client/consultant agreement.
[11]
Clause 7.3 of the client/consultant agreement provides as follows:
LIMIT
OF CONSULTANT’S LIABILITY
…
7.3
All claims against the consultant (being Bentel) shall lapse after a
liability period of five (5) years which period shall
commence on
the earlier date of
7.3.1
practical or other equivalent completion of the works;
7.3.2
completion by the consultant of his services;
7.3.3
suspension, postponement, expiry, cancellation or termination of all
the contracts;
7.3.4
cancellation or termination of this agreement.”
[12]
Bentel contended that as the certificate for practical completion of
the works was issued on 27 June 2007 the five years period
stipulated
in clause 7.3 of the client/consultant agreement therefore commenced
on 27 June 2007 and ended on 26 June 2012.
[13]
The issues that stood for determination in respect
of the second special plea were the following:
13.1what
the meaning was of the term “claim” as used in clause 7.3
of the client/consultant agreement and whether the
meaning contended
for by Bentel limited Fourways to claims made and particularised in
its 2010 claim; and
13.2whether
the items marked in red in Annexure “
BA3
”
to Bentel’s plea constituted “new claims” that
were time barred.
[14]
Fourways contended that the claims were not new claims but merely
reformulated the claim already made and that therefore the
claims
would not fall outside the liability period.
[15]
After considering the meaning of the word “lapse” as used
in clause 7.3, the Arbitrator held as follows in the
Award:
“
15
[…] The important word in clause 7.3 is "lapse".
It means in this context: become void, fall away,
come to an
end, become invalid, in Afrikaans: verval, afloop, verstryk. Compare
Shorter Oxford English Dictionary, Collins Cobuild
Essential English
Dictionary and Bosman van der Merwe Hiemstra Tweetalige Woordeboek.
After the liability period all claims become
void, fall away. There
are no more claims in existence. There is nothing to arbitrate about.
Whether the claims have been notified,
discussed, debated, put in
expert reports or made in whatsoever manner or whether they have not
yet been contemplated, it matters
not. They fall away.
16.
Strictly speaking that would apply to claims subject to arbitration
also. But a distinction has in my view to be drawn. Once
the
arbitration procedure has been set in motion, a dispute has been
declared and the arbitrator appointed is seized with the dispute
and
the arbitration runs its course as provided for in the Rules and
arbitration law. This is not only obvious, it follows
also from
the power given him in clause 18.10 to "determine all matters in
dispute which shall be submitted to him."
It cannot have been
intended by the parties to the Agreement that clause 7.3 would bring
a pending arbitration to an untimely end.
17.
It follows that as all claims have fallen away at the end of the
liability period, the claims that remain are ringfenced by
the
reference to arbitration. That is claims which exist before the
arbitrator on that date. The arbitrator is not empowered to
hear
claims that do not exist and claims that are not before him on that
date. In our context it means the issues as defined by
the pleadings
on the 26 June 2012. This does not mean pleadings could not be
amended after that date (e.g. to clarify a point)
but an extension of
the scope of the claim or the insertion of a new claim would be ultra
vires his powers.
18.
A claim in the context of clause 7.3 is not merely the assertion of a
right, it is coupled to a demand for compensation of which
details
are given. In view of the purpose of clause 7.3 a material variation
of the basis of the claim or of the compensation claimed
would in my
view amount to a new claim.”
[16]
The Arbitrator proceeded to issue the following award:
“
AWARD
1 Bentel's Second
Special Plea is upheld with costs.
2 The portions of
Fourways' claim as marked in red on Annexure BA3 to the Second
Special Plea are struck out.
3.
The costs are to be taxed on the High Court scale and will include
the costs of two counsel. It is recorded that the day of
hearing, 3
July 2013, was taken up by argument on this special plea.
”
[17]
Fourways in the founding affidavit to the review application raised
the following objection against the award:
“
The
arbitrator’s award on the second special plea was given on 5
July 2013. That award in effect reversed his previous decisions
in
finding that all the struck out claims were not part of the
arbitration on 26 June 2012 as they had lapsed. All those
claims
were then struck out. The effect thereof was that the Arbitrator:
1.
declined to exercise jurisdiction over
all those claims that he had previously accepted as claims properly
submitted to him for
adjudication;
2.
unilaterally excluded from his purview the claims submitted to him
and on which he was enjoined to adjudicate in fulfilment
of his
contractual obligations as an arbitrator;
3.
gave an award on a jurisdictional issue, contrary to his previous
determinations and in respect of which he was functus officio;
and
4.
prevented Fourways from having a fair hearing on the struck out
claims.”
[18]
As a result of the aforementioned Fourways alleged that the
Arbitrator committed a gross irregularity and/or exceeded his powers
as envisaged in sec 33(1)(b) of the Act.
[19]
Fourways’ argument pertaining to the alleged reversal of the
Arbitrator’s decision is that on 3 July 2013 in his
ruling on
the first special plea the Arbitrator:
19.1had
accepted the disputed claims as having been properly submitted to
him for adjudication;
19.2had
accepted that he had jurisdiction over the disputed claims.
[20]
Fourways’ only contention in respect of the allegation that
the Arbitrator exceeded his powers is that by “in
effect
[reversing] his previous decisions [that he has the requisite
jurisdiction]” (own paraphrasing), he exercised powers
which
he no longer had as he had already ruled on the issue of his
jurisdiction.
[21]
Fourways alleges that the arbitrator’s decision effectively
non-suited Fourways and that his mistake negatively affected
all
future proceedings in the arbitration as Fourways would henceforth
not have its struck out claims heard at all. Fourways
alleged that
the conduct of the Arbitrator excluded the possibility for Fourways
to have any hearing on its claims, let alone
a fair
hearing.
[22]
Bentel contends that no gross irregularity was committed which could
result in a setting aside of the award by
this court. It
was also argued by Bentel’s counsel that a remittal in terms
of sec 32 was inappropriate. Bentel furthermore
alleged that the
matter was settled after the award was made and that there is
nothing to review. This settlement, what it meant
and what the
consequences entail are heavily disputed between the parties.
However due to the conclusion that I arrived
at, it is in my view
not necessary for me to determine this issue.
THE
APPROACH IN LAW AND PPLICATION OF THE LAW OF THE FACTS:
[23]
In order to determine the issues at hand and the approach that should
be followed, the requirements for the setting aside of
an award in
terms of sec 33(1) of the Act should be considered. In this regard
the question of what would constitute a gross
irregularity and what
would be required to find that the Arbitrator exceeded his powers
need to be determined. Secondly sec
32(2), of the Act must be
considered which allows for a remittal. In this regard what would
constitute good cause to allow
for a remittal needs to be
determined.
[24]
Section 33(1)(b) of the Act provides, in relevant part, as follows:
“
33
Setting aside of award
(1)
Where –
(a)
[…]
(b)
an arbitration tribunal has committed any
gross irregularity in the conduct of the arbitration proceedings or
has exceeded its powers;
or
(c)
[…]
(d)
the court may, on the application of any
party to the reference after due notice to the other party or
parties, make an order setting
the award aside.”
(e)
[25]
When one considers a review application it is appropriate to keep in
mind that the parties by agreeing to a private arbitration
limits
interference by the Court to the ground of procedural
irregularities
[1]
. The purpose
of a private arbitration to bring the disputes between the parties
to finality is also of importance and the grounds
of review should
be construed reasonably strictly so as not to undermine the
achievements of the goals of a private arbitration
[2]
.
[26]
As a result of the fact that reviews are limited to procedural
irregularities the ground of review envisaged in section 33(1)(b)
of
the Act relates to the conduct of the proceedings and not the result
thereof
[3]
. It is also trite
that not every irregularity in proceedings will constitute a ground
for review under section 33(1)(b) of the
Act. In order to justify
review on this basis, the irregularity must have been of such a
serious nature that it resulted in the
aggrieved party not having
his case fully and fairly determined.
[4]
[27]
If an arbitrator misdirects himself on the law, it is in itself no
reason for the setting aside of the finding
[5]
.
An Arbitrator is always entitled to be wrong on the merits and a
wrong interpretation of an agreement will not amount to a
misconception of the nature of the enquiry and therefore to an
irregularity.
[6]
It is also
stated that:
“
[86]
Likewise, it is a fallacy to label a wrong interpretation of a
contract, a wrong perception or application of South African
law, or
an incorrect reliance on inadmissible evidence by the arbitrator as
a transgression of the limits of his power. The power
given to the
arbitrator was to interpret the agreement, rightly or wrongly; to
determine the applicable law, rightly or wrongly,
and to determine
what evidence was admissible, rightly or wrongly. Errors of the kind
mentioned have nothing to do with him exceeding
his powers; they are
errors committed within the scope of his mandate. To illustrate, an
arbitrator in a ‘normal’
local arbitration has to apply
South African law but if he errs in his understanding or application
of local law the parties
have to live with it. If such an error
amounted to transgression of his powers it would mean that all
errors of law are reviewable,
which is absurd
[7]
”.
[28]
In
Telecordia
Technologies
it was also stated that
the
Act “
does
not allow a review for material error of law
”
and “
it
is wrong to confuse the reasoning with the conduct of
proceedings
[8]
”
– in other words, unless there was something
procedurally wrong, no relief is to be had in terms of section
33(1)(b) of the Act.
[29]
The following which was stated is also of importance:
“
Errors
of law can, no doubt, lead to gross irregularities in the conduct of
the proceedings. Telecordia posed the example where
an arbitrator,
because of a misunderstanding of the audi principle, refuses to hear
the one party. Although in such a case the
error of law gives rise
to the irregularity, the reviewable irregularity would be the
refusal to hear that party, and not the
error of law. Likewise, an
error of law may lead an arbitrator to exceed his powers or to
misconceive the nature of the inquiry
and his duties in connection
therewith
[9]
.”
[30]
In the light of the aforesaid this court should not ask whether the
arbitrator was correct in law or fact or whether he interpreted
the
agreement correctly, but rather look at the procedure to determine
whether any irregularity occurred which would justify
an
intervention by the court whilst keeping in mind the principles
already discussed.
[31]
As already stated it is not every irregularity which would justify a
review. The court must be satisfied that the irregularity
caused a
substantial injustice. Only in those cases where it can be said that
what happened is so far removed from what could
reasonably be
expected of the arbitral process that one would expect the court to
take action.
[32]
As far as the term “exceeding its powers” is concerned in
Telecordia
[10]
the following was said:
“
[52]
The term exceeding its powers requires little by way of elucidation
and this statement by Lord Steyn says it all.
“
But
the issue was whether the tribunal “exceeded its powers”
within the meaning of s 68(2)(b) [of the English
Act]. This
required the courts below to address the question whether the
tribunal purported to exercise a power which it did
not have or
whether it erroneously exercised a power that it did have. If it is
merely a case of erroneous exercise of power vesting
in the tribunal
no excess of power under s 68(2)(b) is involved. Once the matter is
approached correctly, it is clear that at
the highest in the present
case, on the currency point, there was no more than an erroneous
exercise of the power available under
s 48(4). The jurisdictional
challenge must therefore fall”
Apart
from the proper application of the test nothing more was made in
argument of the meaning of the term. The argument focused
on the
meaning of ‘gross irregularity in the conduct of the
arbitration proceedings’.
[33]
The ability to set aside an award due to a gross irregularity is
designed as a long stop, only available in extreme cases
where the
tribunal has gone so far wrong in its conduct of the arbitration
that justice calls out for it to be corrected.
[11]
[34]
In the light of the applicable principles I will now proceed to apply
it to the facts in this case.
[35]
When one looks at the procedural aspects one needs to consider what
actually occurred at the hearing pertaining to the second
special
plea. After the dismissal of the first special plea the arbitrator
proceeded to deal with the second special plea. The
parties filed
heads of argument and the Arbitrator considered lengthy arguments
before he came to his conclusion. Although the
point was raised
that he should have referred the matter to evidence, nobody at any
point during the proceedings argued that
the matter should be so
referred. The question that was considered was a question on the
interpretation of a contract, which
could, unless circumstances
indicate otherwise, be determined without hearing evidence. It
would have been different if the
Arbitrator refused to hear
evidence, such a refusal could have amounted to an irregularity. In
this context it is also important
to note that a party can waive any
objection he may have in regards to an alleged irregularity in the
proceedings through his conduct
[12]
.
The parties themselves could also determine the procedures and may
inter
alia
dispense of the necessity to lead oral evidence
[13]
.
The fact that Fourways never indicated that evidence was required to
determine the issues before the arbitrator is in my way
indicative
of such a waiver or an agreement that it was not necessary to lead
evidence. Therefore one must conclude that Fourways
was of the view
that the issue could be determine on argument only, and can’t
be seen to argue at this point that a procedural
irregularity
occurred because of the lack of evidence.
[36]
I now proceed with the argument that the Arbitrator actually reversed
his previous decision. This argument, in my view can’t
be
correct. If one looks at the two special pleas the following become
apparent. The first special plea’s dismissal
confirmed the arbitrator’s jurisdiction to hear the rest of the
matter including the second special plea. The second special
plea
dealt with the interpretation of the contract. Once the second
special plea was upheld the merits of the struck out claims
became
irrelevant. This could be compared with the situation where a plea
for prescription is upheld, which would then exclude
the possibility
to go into the merits, however good they may be. There were totally
different issues to be determined in these
two pleas.
[37]
The contention of Fourways that the arbitrator reversed his decision
is based on a false premise, namely that the second special
plea
concerned a reconsideration of issues ruled upon by him in respect
of the first special plea. This was not the case nor
was it at any
time argued by either party that there was such an overlap. In point
of fact the applicant’s deponent, Koupis
expressly states that
the second special plea concerned the question of whether Fourways’
claims were time-barred or not.
If Fourways’ argument is
correct the contention that there was an overlap would have the
absurd consequence that a ruling
in respect of the first special
plea automatically also renders Bentel’s second special plea
nugatory before it was even
argued, which is clearly incorrect. The
arbitrator did not revisit any of the issues decided upon in the
first special plea when
he considered the second special plea. Nor
can it be said that he declined to exercise jurisdiction over these
claims.
[38]
Fourways take issue as set out below with the following which was
said in the award:
“
On
Friday morning 5 July 2013 in ruling on the 2
nd
special plea he
declined
to exercise jurisdiction
over all those claims (totalling some 29.9 million – the
“disputed claims”). This finding was that “
whether
I have jurisdiction or not have to rule that the claims which are
not part of the arbitration on 26 June 2012 have lapsed
and that
they cannot be introduced by amendment.
”
[39]
The paraphrasing of the arbitrator must be seen in context of the
wording of the whole award and does not in my view constitute
a
reversal of his previous decision nor a contradictory finding. The
arbitrator did not decline to exercise jurisdiction over
the 2013
claims, he considered the argument and found that the claims have
lapsed and that as a result they should be struck out.
[40]
As far as the argument pertaining to a fair hearing is concerned and
if I understand applicant’s argument correctly,
it is that due
to the fact that the arbitrator upheld the second special plea
Fourways was deprived of the opportunity to have
the merits
pertaining to the struck out claims ventilated. I am of the view
that it is consequence of the fact that the plea was
upheld and does
not impact on the procedure as such. It is the result which aggrieved
Fourways and that is not reviewable
[14]
.
[41]
I consequently come to the conclusion that no gross irregularity was
committed nor did the arbitrator exceeded his powers
that
would justify a setting side of the award.
[42]
In the alternative Fourways requests that the matter be remitted to
another arbitrator. Section 32(2) provides, in relevant
part, as
follows:
“
The
court may, on the application of any party to the reference after due
notice to the other party or parties made within six
weeks after the
publication of the award to the parties, on good cause shown, remit
any matter which was referred to arbitration,
to the arbitration
tribunal for reconsideration and for the making of a further award
or a fresh award or for such other purpose
as the court may direct.”
[43]
The
correlation between sections 33 and 32(2) of the Act was taken under
consideration by Selikowitz J in the matter of
Benjamin
v Sobac South African Building and Construction (Pty) Limited
[15]
The following observations of relevance were
inter
alia
made:
“
I
do not agree that when s 32(2) is applied in relation to allegations
which fall to be considered under s 33(1) that “good
cause”
is anything less than that required for an order pursuant to the
terms of s 33(1). To hold otherwise would be to
all but emasculate s
33(1). It would result in an applicant who has complaints of the
nature referred to in s 33 being able to
select whether to apply for
the setting aside of the award subject to the measure of proof as is
required to have an award set
aside or to take the easier route of
applying for remittal in terms of s 32(2). In fact, the only reason
for utilising s 33(1)
would then be to ensure that a new
tribunal heard the matter. In all other cases an applicant
would make his claim
for a “remittal of the entire matter”
in terms of s 32(2)
[16]
.”
furthermore
:
“
The
Act cannot be interpreted to permit an applicant to avoid the
stringent test contemplated by s 33(1) so as to achieve the same
result by clothing his application as one to remit
[17]
”
[44]
This aspect was also considered in the judgment of the Supreme Court
of Appeal in
Leadtrain
Assessments (Pty) Limited and Others
[18]
where Nugent JA and Tshiqi JA stated the following
“
It
is not desirable to attempt to circumscribe when “good cause”
for remitting a matter will exist. It will exist pre-eminently
where
the arbitrator has failed to deal with an issue that was before him
or her – which was what occurred in York Timbers
– but
once an issue has been pertinently addressed and decided there seems
to have to be little room for remitting the matter
for
reconsideration. The guiding principles of consensual
arbitration are finality – right or wrong – and we
see no
reason why an award of costs is to be treated differently to any
other aspect of an award. It would be extra-ordinary if
the conduct
of an arbitrator that falls short of the strict constraints of
section 33(1) were nonetheless to be capable of being
set aside and
remitted for reconsideration under section 32(2). As was pointed out
in Benjamin v Sobac South African Building and
Construction (Pty)
Limited, correctly, the effect of so holding would be to emasculate
the provisions of section 33(1). However
one approaches the question
of what is good cause, it seems to us that it inexorably requires
something other than mere error on
the part of the arbitrator”.
[19]
[45]
I agree that to allow for an interpretation of
good cause to mean that a lower bar is set for remittal under
circumstances like
these will indeed mean that the requirements
provided for in sec 33 are emasculated.
In
the light of the facts
it can also not be
said that the arbitrator failed to deal with any of the issues
before him. If I find that no gross irregularity
was committed it is
inconceivable on the facts of this case that there would be good
cause to remit the matter in terms of sec
32(2).
As
a result I am of the view that the matter does not meet the
necessary requirements to be remitted in terms of sec 32(2) of the
Act.
[46]
In
casu
it
is clear that the arbitrator followed appropriate procedures and
applied his mind and that he dealt with the issues before him.
The
question whether the arbitrator was right or wrong is irrelevant for
purposes hereof. The fact that Fourways as a result
will not get an
opportunity to ventilate the struck out claims, did not prevent them
from having a fair trial, it is the unfortunate
result of the second
plea being upheld.
CONCLUSION
[47]
Fourways has failed to show that the Arbitrator has committed any
gross irregularity that justifies setting aside the Award
in terms of
section 33(1)(b) of the Act. Similarly, Fourways has also failed to
meet the threshold for the remittal of the Award
in terms of section
32(2) of the Act. For the aforementioned reasons the application must
fail.
[48]
In its answering affidavit, Bentel contends that the review
application constitutes an abuse of the process of court and gives
notice of its intention to seek a special costs order against
Fourways on the scale as between attorney this aspect was not argued
before me but I am in any event of the view that no grounds exist for
such an order.
ORDER:
[49]
1. The application is dismissed.
2.
The applicant is to pay the costs of the application, which costs
will include the costs of two counsel.
________________
R
G TOLMAY
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 26 MAY 2014
DATE
OF JUDGMENT: 11 JUNE 2014
PARTIES:
FOURWAYS PRECINCT v BENTEL ASS INT
CASE
NO: 49962/13
FOR
APPLICANT: JVK ATTORNEYS
COUNSEL
FOR APPLICANT: ADV JR GAUTCHI (SC); ADV S TSANGARAKIS; ADV N JELE
FOR
RESPONDENT: FLUXMANS INC
COUNSEL
FOR RESPONDENT: ADV I ZEIDEL (SC); ADV D VAN ZYL
[1]
Telecordia
Technologies Inc V Telkom SA Ltd 2007(3) SA 266 SCA [par 51]; Lufano
Mphaphuli & Associates (Pty) ltd v Andrews
& Another 2009(4)
SA 529 CC, p599, par 235; Ramsden, South African and International
Arbitration, p 201
[2]
Lufano,
supra
p
599, par 235
3
Bester v Easigas (Pty) Limited and Another
1993 (1) SA 30
(C),
[4]
Ramsden,
supra, p
203,
Bester
,
supra,
Patcor Quarries CC v Issroff
and Others1998(4) SA 1069 (SE).
[5]
Telecordia
supra;
Ramsden,
supra,
RPM
Konstruksie (Edms) Bpk v Robinson & Ander 1979(3) SA 632 (C)
6 Telecordia,
supra
p 297, par 67
[7]
Telecordia,
supra
,
p 302, par 86
8
Telecordia, supra
, p 300, par 76
[9]
Telecordia,
supra
,
p 297, par 69
[10]
Telecordia,
supra
,
par 52
[11]
Ramsden
supra
at page 203, footnote 968 and the authorities there cited.
[12]
Ramsden,
supra
,
p 203
[13]
Lufano,
supra
,
p 544, par 223
[14]
Telecordia,
supra, p 298, par 72
[15]
1989(4)
SA 940 (C)
[16]
Supra
,
p 960J-961B
[17]
Benjamin,
supra
,
961D
[18]
2013(5)
SA 84 (SCA),
p
50, par 15
[19]
Leadtrain
supra
at para [15].