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[2013] ZAGPPHC 389
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De Matrix Pool House CC and Another v Absa Bank Limited (22927/2012) [2013] ZAGPPHC 389 (15 November 2013)
SAFLII Note: Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the
law and SAFLII Policy
IN THE NORTH GAUTENG
HIGH COURT. PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: 22927/2012
Date: 15 November 2012
In the matter between:
DE MATRIX POOL HOUSE
CC
…………………………………….
1st
Applicant
(REG NO. 2003/051810/23)
LUFUNO LAWRENCE
RAMABULANA
……………………………
2nd
Applicant
And
ABSA BANK
LIMITED
………………………………………………….
.Respondent
JUDGMENT
JANSEN AJ
Nature of Application:
[1] The application relates to the
rescission of a default judgment obtained against the two applicants
on 30 May 2012, brought
in terms of Rule 42 of the Uniform Rules of
Court.
[2] Rule 42 relates to the rescission
of a judgment and reads as follows: —
"42 Variation and Rescission of
Orders
(1)The court
may, in addition to any other powers it may have, mero motu or upon
the application of any party affected,. rescind
or vary:
(a)An order or
judgment erroneously sought or erroneously granted in the absence of
any party affected thereby;
(b) an order or
judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity,
error or
omission;
(c) an order or
judgment granted as the result of a mistake common to the parties.
(2)Any party
desiring any relief under this rule shall make application therefor
upon notice to all parties whose interests may
be affected by any
variation sought.
(3)The court
shall not make any order rescinding or varying any order or judgment
unless satisfied that all parties whose interests
may be affected
have notice of the order proposed.”
[3] In case law these requirements have
been said to have been met in the following circumstances: —
[3.1] If there was an irregularity in
the proceedings;
1
[3.2]If the court lacked legal
competence to make the order;
2
[3.3] a judgment to which a party is
procedurally entitled cannot be considered to have been granted
erroneously by reason of facts
of which the judge who granted the
judgment, as he was entitled to do, was unaware.
3
[4]The applicants seek to bring
themselves within the ambit of Rule 42 by alleging that the summons
which was served is defective
in that • it was a simple summons
which was not signed (neither by an advocate nor an attorney) and
that particulars of claim
were attached to the simple summons.
[5] It is correct that a simple summons
was used which stops abruptly without any reference to a firm of
attorneys and without any
signature of an advocate or an attorney.
Particulars of claim have been appended to the simple summons which
end off with a statement
to the effect that the defendants may within
ten days, oppose the action, but which do not make provision for the
filing of a plea
(with or without a counterclaim or an exception).
The particulars of claim have been signed by an attorney.
[6] In this regard, it should be borne
in mind that the Rules of the High Court are there for the court, not
the court for the rules.
[7] Effectively the term “Particulars
of Claim” could be deleted with the result that the summons,
with further particularity,
could be regarded as a simple summons.
[8] Rule 17(2)(b) provides as follows:
“In every case where the claim is for a debt or liquidated
demand the summons shall
be as near as may be in accordance with Form
9 of the first schedule”,
[9] Rule 17(2) (a) provides: “In
every case where the claim is not for a debt or liquidated demand the
summons shall be as
near as may be in accordance with Form 10 of the
First Schedule to which summons shall be annexed a statement of the
material facts
relied upon by the plaintiff in support of his claim,
which statement shall inter alia comply with rule 18”.
[10] It was submitted by the applicants
for rescission that the attachment of the particulars of claim to a
simple summons was irregular.
[11]Rule I7(3)(a) provides that: “Every
summons shall be signed by the attorney acting for the plaintiff and
shall bear an
attorney's physical address, within 15 kilometres of
the office of the registrar, the attorney’s postal address and,
ivhere
available, the attorney's facsimile address and electronic
mail address”.
[12]It was further contended for the
applicants that the simple summons was not signed by the attorney
acting for the respondent
and did not bear the attorney’s
physical address.
[13]In B W Kuttle & Association Inc
v O'Connell Manthe and Partners Inc
1984 (2) SA 665
(C) Tebbutt J
stated at 668B- D: -
(1) “It
must be remembered that under Rule 17, ivhich is the Rule dealing
with summonses, a plaintiff can issue a simple summons
or a combined
summons ivhere the particulars of claim are annexed to the summons.
It has on many occasions been laid doivn that
the requirement that
the cause of action must be set out in the summons in "concise
terms" (the phrase used in Form 9
ivith ivhich the simple
summons must be in accordance, in tei'ms of, Rule 17), does not mean
that it must be done ivith the particularity
required of a
declaration (or the particulars of claim annexed to a combined
summons). The object of a summons is not merely to
bring the
defendant before Court; it must also inform the defendant of the
nature of the claim or demand he is required to meet.
But it need do
no more than that. It need not go into minute particulars. It is for
this reason that a Supreme Court summons has
been described as
"merely a label" (see Emdon and Another v Margau
1926 WLD
159
at 162) or "a general indication of claim" (see Singh v
Vorkel
1947 (3) SA 400
(C) at 405)”
[14] In Volkskas Bank Limited v
Wilkinson and Three Similar Cases
1992 (2) SA 388
(C) the Full Bench
held the following at pages 397l”398C: -
“
It
appears to us accordingly that where a plaintiff sues for repayment
of a loan (or an overdraft) all that a simple summons need
contain is
a statement setting out the relief claimed and a succinct outline of
the cause of action, ie that an agreement of loan
(or of overdraft)
was concluded between the parties providing for interest on the
balance outstanding from time to time at a specified
(or
ascertainable) rate and which loan (or overdraft) was repayable on
demand (or on a fixed or ascertainable date) and which,
despite
demand (or the arrival of that date), has not been repaid.”
4
[emphasis added]
[15] Counsel for the applicants also
referred the court, by way of ' analogy, to the case of
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Engineering (Pty) Ltd
t/a L H Marthinusen
1992 (4) SA 466
(W)
where it was held that
when a pleading does not comply with the sub-rules of Rule 18,
requiring specified particulars to be set
out therein, the prejudice
required for the setting aside of the pleading in terms of Rule 30
has prima facie been established.
Particulars of Claim not
complying with Rule 18:
[16] Rule 18(1) of the Rules of Court
provides that: “
A combined summons, and every other
pleading except a summons, shall be signed by both an advocate and an
attorney or, in the case
of an attorney who, under section 4(2) of
the Right of Appearance in Courts Act 62 of 1995, has the right of
appearance in the
Supreme Court, only by such attorney or, if a party
sues or defends personally, by that party”.
[17] It was argued that Rule 18(6)
which provides that: ‘
A party who in his pleading relies
upon a contract shall state whether the contract is written or oral
and when, where and by whom
it was concluded, and if the contract is
written a true copy thereof or of the part relied on in the pleading
shall be annexed
to the pleading”
was not adhered to as the
respondent failed in its particulars of claim to state when, where
and by whom the contract was concluded.
It was further argued that
this prima facie establishes prejudice for the applicants and the
respondent should not have succeeded
on the papers as they stand.
[18] There are yet further
considerations. Given the fact that there should be due compliance
with the provisions of the
National Credit Act 34 of 2005
and all the
necessary allegations have to be made, a simple summons does not seem
to be appropriate in circumstances where a debt
is due in terms of a
credit agreement. Once this is the case it would appear as though
non-compliance with the rules relating to
a summons and the
particularity required in particulars of claim are not merely
technical defects but defects which can lead to
an irregularity which
vitiates the proceedings. It - was stated in the matter of
Firstrand
Bank Ltd v Folscher and Another, and Similar Matters
2011 (4) SA 314
(GNP)
that when action is instituted to enforce a debt secured by
a special hypothec over the debtor's primary residence, or usual or
ordinal'}’ residence, the debtor is entitled to be informed in
the summons of his or her rights, in terms of s 26 of the
Constitution.
[19] An oral loan agreement relating to
overdraft facilities has been pleaded, allegedly entered into on 16
March 2012 between the
plaintiff and the first defendant. However,
the date of 16 March 2012 referred to is, apparently, the date when
it is alleged that
certain arrears had accumulated, with the result
that the date, the place where and the parties who entered into the
oral credit
agreement have 'not been pleaded. The specific terms of
the overdraft agreement have not been pleaded. In particular, it has
not
been pleaded what amount in overdraft facilities was granted,
that (presumably) the first applicant agreed to costs to be paid on
an attorney and client basis when the first applicant fell in
arrears, when demand was made for payment of the amount and that
no
payment was forthcoming, that a certificate of balance by a bank
manger would constitute prima facie proof of the amount due
and owing
or what the
domicilici citandi et executandi
, if any, of the
two applicants were. In fact, as set out by the second defendant, the
amount of R293 675.75 probably relates to
a home loan in respect of
which a mortgage bond was obtained by the respondent over the second
applicant’s residential property
situated at 313 B... A....,
M...., Gauteng. Once this is so, non-compliance with the rules of
court does constitute an irregular
procedure as envisaged by Rule 42
due to the fact that the combination of a simple summons with a
hybrid of particulars of claim
results in an indiscernible claim.
[20]Furthermore, it is clear from the
date of the suretyship, namely 4 January 2007, that the overdraft
facility agreed upon was
probably at approximately the same time.
[21] In particular, it is impossible to
gauge whether the
National Credit Act 34 of 2005
finds application.
[22]The first applicant is a legal
entity. A consumer in respect of a credit agreement to which the Act
applies is defined in section
i(g) as the “guarantor under a
ei'edit agreement” and also in section i(h) as “the party
to whom or at whose
direction money is advanced or credit granted
under any other credit agreement;”. [emphasis added]
[23] Legal entities are bound by the
National Credit Act and
only certain sections thereof do not find
application, as set out in
section 6
thereof.
[24] The second applicant signed a
suretyship in respect of the first applicant’s debt.
Part C
of
Chapter Six of the
National Credit Act applies
to legal entities.
However,
section 4(i)(b)
stipulates that when the credit agreement is
a large credit agreement entered into • by a juristic person,
then the
National Credit Act is
not applicable. A large credit
agreement in terms of
section 7(i)(b)
read with
section 7(2)
is R250
000.00.
Section 7(i)(b)
reads as follows: —
Threshold determination and
industry tiers
(1)On the
effective date, and at intervals of not more than five years, the
Minister, by notice in the Gazette, must determine-
(a)... and
(b)two further
monetary thresholds 3 for the purposes of determining the three
categories of credit agreements contemplated in
section 9.
”
[25] It is unknown what the amount of
the principal debt is in this matter.
[26] As regards the second applicant, a
written security without limitation has been attached to the simple
summons entered into
between the second applicant and the respondent
on 4 January 2007, which date coincides with the time period within
which the first
applicant obtained a home loan for the residential
property mentioned above, where the second applicant resides.
[27]This suretyship, in clause 14
thereof, makes provision for a certificate to prove the rate of
interest and the amount owning
for legal costs to be paid on a scale
as between an attorney and his own client. The problem, however, is
that the suretyship is
ancillary to the main debt and once the main
debt has been extinguished the suretyship cannot be enforced. Hence,
when there is
an absolute lack of clarity regarding the main debt, it
is difficult to envisage how the ancillary debt can be enforced.
[28]Further, and in any event, there is
no reference to
section 2'6
in the particulars of claim nor of the
fact that should the applicants not pay their debt, any immovable
property may be declared
specially executable and that the second
applicant may be evicted as was held by the Full Bench in
Firstrand
Bank Ltd v Folscher and Another, and Similar Mattel's supra
at
336A-G.
[29] Furthermore, upon reading the
affidavits in the application for rescission, it is clear that the
there was vet a further debt
incurred by the first applicant in terms
of a mortgage bond - a debt which has not been pleaded. The writ of
execution obtained
by the respondent seems to be in respect of two
bonded immovable properties, one of which is used for residential
purposes by the
second applicant, namely the property situated at 313
B... A..., M...., Gauteng. It is thus wholly unclear whether the
limitless
security, on the facts of this particular case, relates
merely to an alleged overdraft loan by the bank or whether it
includes
a loan secured by a bond over immovable property. In any
event, in terms of the amendment to Rule 46(i)(a)(ii) of the High
Court
Rules which was effected on 19 November 2010 (GN R981 - which
became effective on 24 December 2.010) a registrar cannot order
immovable
property to be specially executable when it constitutes a
primary residence. Only a court can do so after having considered all
the relevant circumstances. There is no evidence whatsoever that a
court order, declaring the immovable property specially executable,
was obtained.
[30] Rule 46(i)(a)(i)-(ii) reads as
follows: —
“
46
Execution - Immovables
(i)(a)No
writ of execution against the immovable property of any judgment
debtor shall issue until —
(i)a return
shall have been made of any process which may have been issued
against the movable property of the judgment debtor from
which it
appears that the said person has not sufficient movable property to
satisfy the writ; or
(ii) such
immovable property shall have been declared to be specially
executable by the court or, in the case of a judgment granted
in
terms of rule 31(5), by the registrar: Provided that where the
property sought to be attached is the primary residence of the
judgment debtor, no writ shall issue unless the court, having
considered all the relevant circumstances, orders execution against
such property [emphasis added]
Explanation for the delay in
bringing an application for rescission and bona fide defence
[31] Before one can rely on the
provisions of Rule 42, an application for rescission has to be
brought within a reasonable period
pf time. The purpose of this
subrule is expeditiously to correct an obviously wrong judgment or
order.
5
But a court shall not do so after the lapse of a reasonable time.
6
[32] What a reasonable time is depends
on the fact of each case.
[33] The applicants only became aware
of the default order w'hen the second applicant received a notice
from the respondent in respect
of the sale in execution of the
immovable properties, which sale was subsequently cancelled due to
the applicants entering' into
a payment arrangement with the
respondent, on or about 24 October 2012. The terms of the settlement
arrangements proposed by the
respondent were as follows: —
“
24
October 2012
‘
WITHOUT
PREJUDICE”
Dear Sir
ABSA BANK
LTD / DE MATRIX POOL CC/ I I RAMABULANA/ACCOUNT NO: 40…………..
We refer to
the abovementioned matter and wish to confirm that we have received
instructions from our client ABSA Bank Limited to
keep the mater in
abeyance on the following conditions: —
1. Your
client are (sic) to pay R4 000.00 on or before 1 November 2012 and
thereafter R 4 000.00 on the first day of each and every
succeeding
month:
2. All the
abovementioned payments have to be made directly into your client’s
Absa Bank Account with number: 40………
3. You
client area (sic) to pay all attorney and client costs, collection
commission and interest;
4. The
acceptance on this offer should not be construed as a novation of
your client’s indebtedness towards our client and
all
securities held by our client shall remain of force and effect until
payment of the full outstanding amount;
5. Should
any payment not be made on due date, the amounts claimed will
immediately become due and payable and we ivill proceed
with action
against your client without further notice.
…”
[34]From the returns of service, one
knows that neither the court order onor the hybrid summons came to
the applicants’ attention.
(The second applicant is the only
member of the first applicant.)
[35] The respondent alleges that only
one payment was made and that a further sale in execution was
scheduled but cancelled due
to an administrative error. A new sale in
execution was then arranged for 24 March 2013.
[36] The applicants in the application
for a stay of the sale in execution point out that they requested the
documents from which
the certificate of balance relied upon by the
respondent was compiled, but that they never received an answer.
Furthermore, the
second ' applicant alleges that he only agreed to
payment of R4 000.00 per month to fend off the initial sale in
execution and
that the respondent’s conduct in obtaining the
settlement was conduct in terrorem. What is clear is that the
respondent is
unable to explain from which documents the certificate
of balance was compiled. Effectively this leaves the respondent
without
a cause of action. The certificate of balance in any event
constitutes only prima facie proof of the amount outstanding which
the
applicants have refuted.
[37] On 8 May 2013 the second applicant
received a further notice of a new date for the new7 sale in
execution, namely 24 May 2013.
The second applicant deposed to an
affidavit in the application for rescission on 16 May 2013 and the
applicants sought and obtained
a stay of the sale of execution by way
of an urgent application on 24 - May 2013 (pending the outcome of the
application for rescission).
This makes sense as one of the
properties to be sold in execution is the second applicant’s
place of residence namely 313
B…. A…., M…...
Gauteng. This property, according to the second applicant, is subject
to a mortgage bond in
favour of ABSA Home Loans. The applicants admit
owing the respondent money in terms of a home loan. The respondent
has thus, it
would seem, sued the applicants on the wrong cause of
action. The second applicant also states on oath that the respondent
knows
full well where he resides as the respondent is financing his
residence and has all the mandatory details regarding his various
contact details which he furnished to the respondent in order to
purchase the immovable property which serves as his residence.
In
other words, the respondent knew that the domicilium citandi et
executandi of the second applicant was no longer that which
is set
out in the suretyship agreement. He expressed his surprise that the
respondent did not utilise this information in order
to contact him.
[38]The hybrid summons was served on an
old registered address of the first applicant (and the return of
sendee makes it clear that
the address is not a business address but
a private residence) and on an old residential address of the second
applicant, whereas
the second applicant had furnished his new
residential address to the respondent, which is the property which
was funded by the
home loan division of the respondent. In terms of
section 168(b)
of the
National Credit Act 34 of 2005
, service should
have been effected at the last known address of the second applicant.
[39] In Absa Bank Ltd v Mkhize and
Another and Two Similar Cases
2012 (5) SA 574
(KZD) the following is
stated at page 592 paragraph [67]: -
‘
'But
if ordinary post is to be sanctioned, then I think it is important
that credit providers, wherever possible, increase the level
of
probability attaching to ultimate receipt by sending the notice not
only to the chosen address of a consumer but to all other
addresses
where, according to the records of the credit provider, the consumer
may be found. I have in mind the place of work of
the consumer who is
employed; the address of a family member which might have been
provided at the time credit was applied for,
and so on. Collating the
necessary information and sending out multiple letters may well
impose an additional administrative burden
but that does not seem to
me to be an unreasonable imposition, given the importance of
achieving compliance with s 129(1) of the
Act, and given the fact
that success opens the way to judicial enforcement if the offer of
the processes contemplated by s I29(i)(a)
is declined, or if they
fail. I think that if ordinary post is to be sanctioned, it should be
accompanied by another attempt at
delivery by registered post to the
consumer's selected address. This would meet the case of the consumer
who did not evade receipt
of the, first letter, but failed to collect
it for some other reason. ”
[emphasis added]
[40]" In addition, although the
section 129 notices in terms of the
National Credit Act 34 of 2005
was sent to the alleged domicilium citandi et executandi per
registered post, no track and trace records were affixed to the
papers.
There was therefore no compliance with the requirement that
the
section 129
notice reaches the correct post office, at the very
least, as was held in Sebola v Standard Bank of SA Ltd and Another
2012 (5) SA 142
(CC). Hence, it is deemed that no notice was given to
the applicants as required by
section 129
of the
National Credit Act.
[41]The
court which granted the default
judgment on 30 May 2012 should therefore have adjourned the matter
and, in terms of section I30(4)(b)
of the
National Credit Act, made
an “…order setting out the steps the credit provider
must complete before the matter may be resumed".
Rule 31(2)(b)
and the common law:
[42] It is further trite that when an
application for rescission of a judgment is brought in terms of
Rule
42(1)
it does not mean that it ' cannot be entertained under any
other rule such as
Rule 31
(2)Cb) or the common law, provided the
requirements thereof are met."
7
[43] At common law there must be an
explanation for any delay in bringing the application for rescission
as well as facts which
demonstrate that the applicant(s) for
rescission has/have a
bonafide defence
against the action or
application which was brought against them.
[44]The reasons for the delay in
bringing the application have been set out above.
[45] In addition, in the full bench
judgment of
Harris v ABSA Ltd t/a Volkskas
2006 (4) SA 527
(T)
at paragraph [9] it was made clear that once wilful default has been
shown an applicant for rescission is not necessarily barred
from
relief. It was held that it was but one of several elements to be
taken into account. In addition “wilful” default
connotes
deliberateness in the sense of knowledge of the action and of the
consequences, its legal consequences and a conscious
and freely taken
decision to refrain from giving notice of intention to defend,
whatever the motivation for this conduct might
be.
8
Bona fide defence:
[46] At common law, an applicant for
rescission of a judgment must show sufficient cause which defies a
precise or comprehensive
• definition. The party seeking
rescission must have a reasonable and acceptable explanation for
his/her/its default and a
bona fide defence which prima facie carries
some prospect of success as was stated in
De Wet and Others v
Western Bank
1979 (2) SA 756
(A). In
Chetty v Law Society
Transvaal
1985 (2) SA 756
(A) at 768C it was stated by Miller JA:
—
“
It
may be that in certain circumstances, when the question of the
sufficiency or otherwise of a defendant's explanation for his
being
in default is finely balanced, the circumstance that his proposed
defence carries reasonable or good prospects of ‘
success on
the merits might tip the scale in his favour in the application for
rescission. (Cf Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A)
at 532.) But this is not to say that the stronger the prospects of
success the more indulgently will the Court regard the explanation
of
the default. An unsatisfactory and unacceptable explanation remains
so, whatever the prospects of success on the merits.”
[47] In
Galp v Tansley N.O.
1966
(4) SA 555
(C) at page 560 reference was made to the case of
Silber
v Ozen Wholesaler (Pty) Ltd
1954 (2) SA (A), at page 352, where
it was stated that the requirement introduced by the expression “good
cause”, as
used in
Rule 46(5)
, includes, but is not limited, to
the existence of a substantial defence. It has been held that the
requirement of "good cause”
cannot be held to be satisfied
unless there is evidence not only of the existence of a substantial
defence but, in addition, of
a bona fide, presently-held desire on
the part of applicant for relief actually to raise the defence
concerned in the event of
the default judgment being rescinded.
9
[48] The applicants dispute that they
are indebted to the respondent for the monies claimed under Case No.
22927/2012. In the simple
summons and in the particulars of claim
(paragraph 2) the plaintiff, who is the current respondent, alleges
that the applicants
are indebted to it for an amount R293 675.95
which emanated from an overdraft facility which was authorised
through an oral agreement.
This claim and debt are disputed by the
applicants. Reference was made to the lack of any supporting
documents save for the certificate
of indebtedness.
[49]The applicants deny that they are
indebted to the respondent in respect of overdraft facilities, and in
support of their contention,
have attached the last statement of
account that was issued by the respondent against the first applicant
which the applicants
allege was settled. In an)' event, the second
applicant avers that the first applicant ceased trading on 31 March
2012, and would
have had no reason to obtain any overdraft facilities
from the respondent. Such overdraft facility as the first applicant
had,
was for an amount of R23 000.00 in 2008, which was paid and the
facility was closed.
[50] The applicants never received the
return of service attached to the default judgment application as is
clear from the return
of service. Sendee, as set out above, on the
first applicant was effected by affixing it to the door of an old
registered address
and not the bonded property which was the
domicilium citandi et executandi. (As stated, the correct domicilium
citandi et executandi
is the immovable property which the respondent
now seeks to sell after obtaining a writ of execution.)
[51]The address where sendee was sought
to be effected on the second applicant was clearly not that of the
second applicant. Nobody
knew who the second applicant was at the
address where sendee was effected, as can be seen from the return of
sendee.
[52] As far as a bona fide defence is
concerned (which is the second requirement for the rescission of a
judgment), the applicants
state that the) have repaid all money
loaned to them by way of an overdraft facility by the respondent.
[53] In the premises, the applicants
have made out a case for the, rescission of the default judgment and
the setting aside of the
writ in execution.
Order
In the event, the
following order is made: —
1.The default
judgment, granted on 30 May 2012 is rescinded.
2.The writ of
execution dated 5 July 2012, in respect of two immovable properties,
namely Erf 54 and Erf 104 Montana Township, Registration
Division
J.R. Gauteng Province situated at 313 B…. A…... M….,
Gauteng Province and 315 B… A….,
M…., Gauteng
Province are set aside.
3.The respondent
is to pay the costs of the application, as well as the costs of the
application for the stay of the sale in execution
which were reserved
on 23. May 2013.
MM JANSEN AJ
ACTING JUDGE OF THE HIGH COURT
ATTORNEYS FOR THE APPLICANT VICTOR
MABE INC ATTORNEYS
545 Begemann Street MABE LAW
CHAMBERS ELOFFSDALL Pretoria 0084 Tel: (012) 335 4455 . Fax: (012)
335 6885
e-mail: victamabe@webmail.co.za
REF: VPM/CIV/ramabulanall/res/13
COUNSEL FOR THE APPLICANT ADVOCATE
SIMON NARE MOLELE
ATTORNEYS FOR THE RESPONDENT MESSRS
VAN ZYL LE ROUX
1st Floor, Monument Office Park
Block 3
Cnr. Steenbok Avenue and Elephant
Road
MONUMENT PARK
Pretoria
Tel: (012) 435 9444
Fax: (012) 4359555
Ref:408318/B TENNER/yjvv
COUNSEL FOR THE RESPONDENT ADVOCATE
J G BERGENTHUIN SC
1
Shabalala
and Another v Peer 1979 (4)SA 27 (T).
2
Athmaran
v Singh
1989 (3) SA 953
(D).
3
Lodhi
2 Properties Investments CC and Another v Bondev Developments (Pty)
Ltd
2007 (6) SA 87
(SCA) at 94E.
4
In
similar vein are cases such as:
Credit
Corporation of SA Ltd v Swart
1959 (1) SA 555
(O) at 557
;
Landman Implemente (Edms) Bpk v Leliehoek Motors (Edms) Bpk
1975 (3)
SA 347
(O) at 348-349 ; Dowson and Dobson Industrial Ltd v Van der
Werf and Others
1981 (4) SA 417
(C) at 425 ;
Globe
Engineering Works Ltd v Ornelas Fishing Co (Pty) Ltd
1983
(2) SA 95
(C)and
Absa
Bank Ltd v Standard
(2011/24206)(2012
ZAGPJHC 26 (13 March 2012).
5
Bakoven
Ltd v G J Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471 E-F; Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz and Others
1996 (4)
SA 411
(c) at 417 B – I
6
First
National Bank of Southern Africa Ltd v Van Rensburg NO and Others:
In Re First National Bank of Southern Africa Ltd v Jurgens
and
Others
1994 (1) SA 677
(T) at 68iG~B; Firestone South Africa (Pty)
Ltd v Genticuro AG V)7~] (4) SA 298 (A) at 306H
7
Mutebwa
v Mutebwa and Another
2001 SA 193
(TkH) at 198C-E
8
Maujean
t/a Audio Video Agencies v Standard Bank of SA Ltd
1994 (3) SA 801
(C).
9
See
Kritzinger v Northern Natal Implement Co (Pty) Ltd 1973 (4)SA 542
(N) at 546