About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
1999
>>
[1999] ZAWCHC 2
|
|
Ross v South Peninsula Municipality (A741/98) [1999] ZAWCHC 2; [2000] 4 All SA 85 (C); 2000 (1) SA 589 (C) (3 September 1999)
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
CASE
NO.: A741/98
In
the matter between:
VANESSA
ROSS
Appellant
and
SOUTH
PENINSULA MUNICIPALITY
Respondent
JUDGMENT
DELIVERED THIS 3RD DAY OF SEPTEMBER 1999
JOSMAN,
AJ:
The
appellant Mrs Ross occupied premises at 15 Lilac Court, Lotus River
which belonged to the Respondent, South Peninsula Municipality.
In
July 1997, the Respondent issued summons against Mrs Ross claiming
her eviction from the premises on the simple basis that the
Respondent was the owner of the property, she was in occupation and
had no right to be so. Respondent also alleged that there,was
no
agreement which entitled Mrs Ross to occupy the property and that she
and all the people living with her were doing so illegally.
The
form that the summons took was based on the principle of pleading
established in the case of
Graham
v Ridley
1931 TPD 476
,
in
which Mr Justice Greenberg quoted the following portion of a prior
unreported decision with approval:
"One
of the rights arising out of ownership is the right to possession;
indeed Grotius (Introd. 2, 3, 4) says that ownership
consists in the
right "to recover lost possession.
Prima
facia,
therefore,
proof that the appellant is owner and that respondent is in
possession entitles the appellant to an order giving him
possession,
i.e., to an order for ejectment. When an owner sues for ejectment an
allegation in his declaration that he has granted
the defendant a
lease which is terminated is an unnecessary allegation and is merely
a convenient way of anticipating the defendant's
plea that the latter
is in possession by virtue of a loase, which plea would call for a
replication that the lease is terminated.
It is the defendant and not
the owner (plaintiff) who relies on the lease, and if the lease
itself is denied by the defendant,
as in the present case, the
allegation of the lease is surplusage", (page 479)
Dealing
with the status of a replication to a plea alleging a lease Greenberg
J said that the plaintiff's reply does not set up
a new cause of
action although it may set up a different history. The main cause of
action arises from ownership of the'property
and the owner's
entitlement to possession. Accordingly any allegation relating to a
lease does not affect the real cause of action
though it may have a
significant bearing on the onus of proof in relation to the lease.
In
Myaka
vHavemann and Another
1948 (3) SA 457A
,
the
plaintiffs sued as cessionaries of the right of action of owners of a
farm for the eviction of the defendant, alleging in addition
that the
agreement with the defendant entitling him to occupation had been
terminated by notice. The court held that the plaintiffs
could have
relied solely upon their rights as cessionaries of the owner's rights
but since they had pleaded additional facts they
had attracted the
onus of proving those additional facts; an onus that
would
not
have
been upon them had they relied simply upon the rights flowing from
ownership as determined in
Graham
v Ridley.
At
issue in this case is the question of whether Section
26
(3)
of
the
Constitution,
Act 108 of 1996, has altered the common law as
established
in
Graham
and Ridley.
Section
26 (3) stipulates that:
"no
one may be evicted from their home or have their home demolished
without an order of court made after consisting all the
relevant
circumstances. No legislation may permit arbitrary evictions."
This
provision forms part of the Bill of Rights protecting everyone's
righto to adequate housing. !t is therefore necessary to consider
to
what extent the Constitution has limited the rights of an owner of
property to sue for the eviction of a person in possession
and what
allegations, if any, are to be made by the owner in attempting to do
so.
It
is however necessary to consider certain other issues raised in this
appeal before doing so. The first relates to an application
for
condonation of the late filing of the appeal, which was not seriously
opposed by the Respondent in the Magistrate's Court Mrs
Ross, who was
assisted in her defence of the action by the Legal Aid Board, took an
exception to Respondent's summons, alleging
that by virtue of section
26(3) of the Constitution the Respondent should have alleged that it
was seeking to evict Mrs Ross from
her home and should have placed
before the court
relevant
circumstances
which would have entitled it to such an order.
The
exception was heard and dismissed on the
3rd
of
March.
1998.
Through
her
attorneys Mrs Ross filed a request for reasons for judgment on
the
17th
of
March 1998. The Magistrate's reasons for judgment were
thereafter
furnished on 26th of May 1998, although the date
on
which
they
wero
supplied
to Mrs Ross's attorneys is not known. Because legal opinion
was
required
by the Legal Aid Board as to the prospects of success on appeal the
notice of appeal was oniy filed on the 24th of July
1998. Since
the
delay
was not excessive and the explanation is acceptable, the importance
of the legal issue raised justifies the condonation of
the late
appeal.
The
next issue raised stems from the fact that
on
the
same
day
thai
Mrs
Ross's attorneys requested reasons for judgment, they filed
an
amended,
plea
because of the Magistrate's dismissal of the exception.
The
Respondent
alleges that this plea is inconsistent with an intention
to
pursue
the
appeal and that accordingly the right of appeal has been
perempted.
What
is more particulars were requested to the amended plea,
they
were
supplied
on the 29th of June 1998 and
a
replication
was
filed
by the
Respondent
on
the
19th
of July
1998.
All
this took place before
the
filing of
the
notice of appeal on the
23rd
of
July
1998.
In
listing the chronology of events the respondent in its heads
of
argument
in support of its claim for peremption omitted to state
that
on
the
same
day
that the amended plea was served by Mrs Ross's attorneys the request
for
reasons
for judgment was lodged with the clerk of the magistrate
's
court.
Thereafter there had been discussions between the respective
attorneys relating to the appeal.
The
test for determining whether there has been peremption of
an
appeal
was
laid down by the Appellate Division in
1920
in
the
case
of
Dabner
vs SA Railways and Harbours
1920 AD 583
and 594,
Peremption
is
only
established
where the conduct of the unsuccessful litigant points indubitably and
necessarily to the conclusion that there had been
acquiescence
in
tho
judgment
appealed against.
More
recently, in
Natal
Rugby Union vs Gould
[1998] ZASCA 62
;
1999 (1)
SA
432
,
the
Appellate
Division considered a decision by
the
Rugby
Union
to hold a re
election
which, so it was alleged, was inconsistent
with
the Union's
intention to attack an adverse judgment of the Natal High
Court
in
this
respect, in that case the members of the Union were not
in
accord as to
whether
there should be an appeal and. the reelection
was
held
before
the
decision
to appeal was finally taken. Even so the court held
that
the
onus
of
showing peremption had not been discharged
and
that it was not an
indubitable
and necessary conclusion that the holding
of
the re-election
was
inconsistent with an intention to appeal.
Based
on the facts in the case before this Court it is clear that
Mrs
Ross is
not
perempted from proceeding with the appeal.
THE
ONUS
The
issue to be decided is whether the Constitution has
now
placed
an
onus on
an
owner of (and to inform the court of circumstances justifying
the
eviction
of a person in possession of the owner's property
if
it is
his
or
her
home.
*Appellant contends that there is such an onus and that
the
relevant
*In
this case the respondent is a municipality
so
that
the
issue
of
horizontality
does not arise. But see in this regard
South
African
Journal
of
Human
Rights
Volume
15 Part
I
page
25
especially
page
28
following on
the
indirect application of the Bill of Rights in relation to the
common
law.
allegations
must be made by the plaintiff, supported by facts as required
by
our
rules of pleading. This will be the first step required to enable
the
court
hearing the matter to consider ali the. relevant circumstances
before
issuing
an eviction order. Clearly the appellant contemplates
that
in her
plea
sho too will allege relevant circumstances and also
answer
the
respondent,
who will be entitled to reply to the plea in a replication.
The
question of where the onus lies in a given instance is determined
by
substantive
law. In 1990 the Appellate Division reviewed the question of where
the onus of proof lies in matters which are
res
nova
in
During
N.O. v$ Boesak and Another
[1990] ZASCA 51
;
1990 (3) SA 661
(A).
At
issue in that case
was
the
question of whether the divisional commissioner of police for the
Western Province,
in
exercising
the right conferred on him by emergency regulations under the Public
Safety Act of 1990 (53) to prohibit public gatherings,
was required
to prove, and thereby accept the onus of proving,
that
his
discretion
had been properly exercised. Although the court was
divided
as
to
the outcome of the appeal, all the judges were unanimous
about
the
imposition
of the onus; the reasoning appears from the judgment
of
Mr
Justice
Grosskopf, at page 672 H.
He
confirmed that the underlying substantive law determines where the
onus of proof lies and quoted Hoffmann and Zeffertt, the South
African
Law
of
Evidence, in support thereof. The learned judge went on to state that
in matters where the incidence of the onus has not been
previously
determined the courts have laid down guidelines in order to do so. He
emphasised however that in the last resort that
there is no generally
applicable rule and quoted
Wigmore
on
Evidence with approval to the effect that -
"the
truth is that there is not and cannot be any one general solvent tor
ail cases. It is merely a question of policy and
fairness based on
experience in the different situations."
This
passage from
Wigmore
had
been previously approved
by
the
Appellate Division in
Mbaso
vs Feiix
1981 (3) SA 685(A).
In
this case the court concluded that in actions for damages for delict
the onus of proving the excuse or justification for the
alleged
delict., for example self defence, lay upon the defendant. Quoting
Wigmore
the
court held that if the onus wore on the plaintiff then one would have
to assume the presence of such
a
defence
and require the plaintiff to disprove the existence thereof, As
a
matter
of policy and of fairness all that plaintiff should be required
to
do
is prove the nature of the harm, the fact that the defendant caused
it, and then leave it to the defendant to prove the justification.
One of the reasons for so doing is that the facts relating to the
justification are likely to be peculiarly within the knowledge
of the
defendant, although
Wigmore
hastens
to add that there is no universal principle to this effect. In
Mbaso
the
court concluded that it would "be fair and accord with
experience and common sense" to place the onus on a defendant
to
prove such excuse or justification."
To
return to the
During
case
Grosskopf JA stated that as a matter of substantive law the right to
hold meetings and attend gatherings is a fundamental right
in our
legal system and that this should be the starting point of any
consideration of the incidence of the onus. In support of
this he
referred to the earlier Appellate Division case of
Minister
of Law and Order vs Hurley
1986 (3) SA 568
in
which the court considered the validity of the arrest of the
respondent in that matter. It held the onus of proving
by
way
of presenting facts to the court that the arrest was lawful should
be
placed
on the person affecting the arrest. Mr Justice Grosskopf quoted with
approval the following statement of Chief Justice Rabie
in
Hurley's
case:
"I
would
add that I consider it to be good policy that the law should
be
as
there stated, (referring to
Brand
vs Minister of Justice 1959
(4)
SA
7128).
An
arrest constitutes an interference with the liberty
of
the
individual
concerned, and it therefore seems to be.fair and just to require that
the person who arrested or caused the arrest
of
another
person should bear the onus of proving that this action was justified
in law."
At
page 673 g Grosskopf JA said the following:
"Wat
ek hier veral wii beklemtoon is die beginsel standpunt dat, as 'n
saak van beleid, dit reg en billik is dat 'n persoon
wat inbreuk maak
op die vryheid van die individu die bewyslas behoort te dra om to
bewys dat sy optrede regmatig is. Aangesien
die figging van die
bewyslas tot groot hoogte deur beleidsoorwegings bepaal word (sien
die
pasassie
uit
Wigmore
hierbo)
is
Huriey
se
saak sterk gesag daarvocr dat ook by inbreuk op ander fundamentele
regte, dit wii se op
die
vryheid
van die individu in 'n breer sin, die bewyslas cm
die
regmatigheid
van sy optrede te bewys behoort te rus op die
persoon
wat
die inbreuk maak."
Grosskopf
JA went on to state that a further,
if
iess
important
policy
consideration
which tended in the same direction, was the
fact
that the
person
arrested wouid often not know in terms of what regulation
and
on
what
grounds he was being arrested. He stated at p674
f:
"As
'n kwessie van praktiese doelmatigheid sou dit
dus
gewooniik
makliker.
wees vir die arresteerder om die regtmatigheid
van
die
inhegtenisneming
te bewys as vir die gearresteerde om
die
teendeel
te
bewys."
That
the incidence of the onus can be affected
by
a
constitutional requirement is beyond question. The Constitutional
Court had
occasion
to
consider
the extent of which the incidence of the onus can
be
affected by
statute
and to measure this against Constitutional imperatives
in
the case
of
Prinsfoo
v$ van de Linde and Another
1997 (3) SA 1012.
The
statute
in
question
was the Forest Act 122 of 1984 which provided in section
84
that
there
is
a
presumption'
of negligence, until the contrary
is
approved, in any
action
in which the question of negligence arises in relation
to
a veld, forest
or
mountain fire occurring on land outside a fire controlled
area.
After
reviewing
the reasons for imposing, the presumption
the
court concluded .that
there was a rational relationship between the purpose
sought
to be achieved
and
the means chosen. The Constitutional Court
again
cited
Wigmore
as
approved
in
Mbaso
vs Felix
to
the effect that -
".
. . . .all rules dealing with the subject-of the
burden
of proof rest "for
the
ultimate basis upon broad and undefined
reasons
of experience
and
fairness
,
"
,
(p1028g.)
The
court held that the difficulty of establishing who caused
a
fire required
that
as between the person who suffered the damage and the
owner
of the
land
on which the fire started, the latter would be in a much
better
position
to
show how and where the fire originated.
Accordingly
in deciding this case we-need to consider broad
reasons
of
experience
and fairness to determine where the onus
should
be placed.
Section
26 (3) of the Constitution in effect requires a
court
hearing an
application
or action for the eviction of a person from
his
or her home, not
to
issue the order until it has had an opportunity to
consider
all the relevant
circumstances.
This means that not only may an
eviction
order not be
issued
by
for
example a clerk of the Magistrate
's
Court or the Registrar of
the High Court in an application for default judgment, but
that
the presiding
judicial
officer alone can issue such an order and then only
after
considering
all
the relevant circumstances. At issue is how those
circumstances
should
be
placed before the court;
In
systems of jurisprudence employing the inquisitorial system,
a
judicial
officer
is able to call for and gather whatever information is required.
Where
the
adversarial system is employed the parties are required
to
place the
information
before the court and it is in this context that the onus
of
proof is
of
such importance. Once determined the onus prescribes which
party
has
to
place particular facts and circumstances before the court
and
therefore
what
has to be alleged in pleadings or affidavits.
Since
the Constitution only protects eviction from a
Home,
Section 26 (3)
would
not apply in the case of eviction sought
from
business
premises
or
any
other premises that do not constitute a home. As
the
court
has
to
consider
all the relevant circumstances the adversarial system
predicates
that
the
plaintiff should place such information
before
the court as it
considers
relevant, to which the defendant can
plead
by answering the
allegations
as well as by raising additional issues.
The
plaintiff in turn can
respond to those allegations in reply. In this manner the pleadings
will
introduce
the
issues
and
define
them,
the
evidence
will
provide the
substance
and detail, and the court wilt then be able to
exercise
its
discretion after having considered all the relevant circumstances.
In
this
manner
the adversarial system allows for and in most instances
will
ensure
that
all such circumstances are placed before the court.
The
court can
presumably
.call for amplification
if
after
considering the issues raised
in
the
pleadings,
it deems it necessary.
If
both parties to a case involving eviction from a home raise
the
issues
which
they consider to be relevant, the court should ultimately
have
sufficient
information before it to consider alt the relevant circumstances
prescribed by the Constitution. A different situation
might arise
however
where
the defendant occupier does not enter an appearance
to
defend and
the
plaintiff is seeking judgment by default. To the extent that some
or
even
most
of this information might be within the knowledge of
the
defendant
rather
than the plaintiff land owner, it is worth noting that
it
is
not
a
principle
of
our law that the onus of. proof of a fact lies on the
party
who
has
either
intimate
knowledge thereof or the means of establishing that
fact.
Eskom
vs
First National Bank of Southern Africa Limited
[1994] ZASCA 186
;
1995 (2)
SA
386
(A).
Grosskopf
JA in the
Eskom
case
made it clear that this
is
no reason for
removing
the burden of the onus of proof from the plaintiff,
in
such
a
case,
a'though
less evidence will'be required from a plaintiff
in
relation
to
knowledge
which is peculiarly within the domains
of
the
defendant.
Union
government
(Mr Railways) vs Sykes
1913 AD 156
et 173, Gericke vs Sack
1978 (1)
SA 821A
and 827 E-G.
It
is the conclusion of this court therefore that Section
26(3)
of the
Constitution
has indeed modified the common law as laid down
in
Graham
v
Ridley \o
the
extent that a plaintiff seeking to evict a person
from
his or
her
home is now required to allege relevant circumstances which
entitle
the
court
to issue such an
order.
The
respondent did allege that Mrs
Ross
was
occupying
the property illegally but this is not sufficient to satisfy
the
above
requirement.
It
is
beyond the scope of this appeal to consider what circumstances
will
be
of
relevance to the court, though some guidance
in
this respect might be
gleaned
from the Prevention of Illegal Eviction
from
and Unlawful
Occupation
of Land Act 19 of 1998 which came into
effect
on the Gtlvof
June
1998. It
is
necessary
to consider this Act because
it
has already been
the
subject of judicial interpretation and critical review relevant
to
the
issues
raised in this case.
In
an article which appeared in the June 1999 issue of
De
Rebus, Ranjit
Purshotam
of the Legal Resources Centre in Durban analysed
the
Act and
concluded
that its terms are broad enough to encompass a range
of
eviction
orders, wide enough to have included an occupier such as
Mrs
Ross.
Because the Act came into effect on the 5th of
June
1993
and
the
action
against Mrs Ross was commenced in 1997,. this court
was.not
required
to consider whether it might have been of application
in
the
circumstances of this case.
Mr
Purshotam's thesis derives from an analysis
of
the
Act
itself,
the
preamble
to which recites
inter
alia
the
wording
of
Section
26(3)
of the
Constitution.
The rest of the preamble is also worthy
of
mention, and reads as
follows:
"And
whereas it is desirable that the law
should
regulate the eviction
of
unlawful occupiers from land in a fair
manner,
while
recognising the
right
of land owners to apply to a
court
for
an
eviction
order in
appropriate
circumstances;
And
whereas special consideration should
be
given
to
the rights of
the
elderly, children, and disabled persons,
and
particularly
households
headed by women, and
that
it
should
be
recognised that
the
needs of those groups should be considered."
Thereafter
the Act prescribes the requirements for the issuing
of
such
an
eviction
order,
Mr
Purshotam points out that the definition of "building or
structure"
includes
temporary structures such as huts, shacks and tents
as
well as a
permanent
dwelling. Furthermore the definition of "evict" refers to
the
deprivation
of a person of occupation of a building house
or
structure., or
to
the land on which it is erected, against his or her
will.
Since
the
definition
of
land includes a portion of land, his submission
is
that any reference to land
in
the Act includes any building or structure on
the
land in question.
An
unlawfull occupier is defined as a person
who
occupies the land without the
express
or tacit consent of the owner or
person
in charge or without any other right jn law to occupy such land, with
certain exceptions which are not relevant in this instance.
Section
4(1) of the Act then provides as follows:
"Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or person
in charge of the [and for the eviction of an unlawful occupier."
Section
4(2) requires fourteen days notice to be given by the court for the
hearing of proceedings for eviction and notice in writing
must be
given both to the unlawful occupier and the "municipality having
jurisdiction".
Sub-sections
(6) and (7) of Section 4 prescribe in some detail the type of
circumstances that have to be taken into account by a
court hearing
an application or action for eviction,
It
is Mr Purshotam's conclusion therefore that an eviction order such as
that sought by the respondent against Mrs Ross would have
fallen
within the
purview of the Act that had it been in force. He did not
however
refer to a
decision
of the Witwatersrand Local Division in which judgment
was
given
on
the 23rd of February 1999 by Mr Justice Schwartzman in
the
case of
Absa
Bank Limited v Amod;
in
which the learned judge considered
the
ambit
of
the Act. In so doing he applied certain established principles
governing
the
interpretation of statutes.
The
case concerned an application for eviction of an occupier from
a
house
in
a residential suburb and is therefore directly comparable
to
the matter
before
this court. The case is reported in Volume 2 of the All South African
Law Reports at page 423, and at page 428 D the learned
judge
said
the
following:
"In
resolving the issue as to whether the Act does apply
to
th&se
proceedings,
I will have regard to the following principles
that
govern
the
interpretation of statutes. It is permissible to look
at
the lav/ at the
time
of the enactment and the reason for passing the
Act.
It is
similarly
permissible to look at the preamble
to
an
Act
or other
express
indications in it to ascertain the object
sought
to be achieved
by
the Act. That a statute must not be presumed
to
alter
the
common
law. That once it is clear that that is its object, effect
must
be given
thereto
to the extent that the statute clearly alters
the
common law.
A
statute must not be interpreted to lead to an absurdity
which
the
legislature
did not intend"
He
then stated that the laws repealed by the 1998 Act included the
Prevention of Illegal Squatting Act of 1951, the Black Laws Amendment
Act
of
1963, the Abolition of Influx Control Act of 1986 and various related
Acts.
After
reviewing the Illegal Squatting Act which the 1998 Act deliberately
reversed in what he described as "a response by Parliament
to
one
of the
social
phenomena of the post apartheid era" he stated at
page
429
(C);
"Against
this background what is significant is that like its predecessor the
emphasis throughout the 1998 Act is on the unlawful
occupation of
land. The Act does not purport to deal in general or specific terms
with the unlawful occupation of immovable property
lawfully built
on
land.
In the context of the 1998 Act the word "land"
must
mean
vacant
land (an expanse of country; ground; soil -
(See
Concise
Oxford
Dictionary) and does not include permanent structures that have
acceded to land. Had this been
the
legislature
's
intention it
would have been clearly indicated in the Act, Regard being had to the
diametrically
apposed
objects of the
1961
Squatters
Act and the 1998 Act, and notwithstanding
what
is said
in
Section (4)(1) of the Act,
I
find
it difficult to accept
that
the
1998
Act
can
be interpreted as turning on its head the common
law
of landlord
and
tenant or the common law right of an
owner
of immovable
property
who has, in terms of a contract, given another
the
right
to
occupy
his or her immovable property to recover
the
same"
(emphasis
added)
Then
finally
at page 429 (I) he says the following:
"Section
4 of the 1998
Act
limits
the common
law
rights of an owner
of
land to evict an
unlawful
occupier
from his or
her
land. An unlawful
occupier
in turn means 'a person
who
occupies
land
without the
express
or tacit consent of the
owner',
in
the
context
of the Act
and
notwithstanding the definition of "evict" the
meaning
I give to these
words
is
that
the person referred to is a person who
has
without any
formality
or right moved on to vacant land of
another
and
constructed
or occupied a building or structure thereon. Had
it
been the intention of the legislature to affect the common law right
of property owners, to which I have referred, the definition
of
unlawful occupier would have included a person who, having had a
contractual right to occupy such property, is now in unlawful
occupation by reason of the termination of the right of occupation.
The absence of such a provision must affect the extent to which
it
can be said that the 1998-Act was intended to affect persons' common
law right to determine who may occupy their immovable property
in
terms of agreements." (emphasis added)
!
respectfully agree with Schwartzman J in his interpretation of the
application of the 1998 Act.
What
might be helpful about the 1998 Act is its interpretation, or rather
the legislature's interpretation of the constitutional
requirement
that the rights of the elderly, children, disabled persons and
households headed by-women should be protected. These
are to be found
in Section 4 subsections (6) and (7) of the 1998 Act. Even
though the Act would not have aoplied in a case
such as this,
following the
Absa
Bank case,
the
couris might derive some guidance from the legislature in trying to
implement the constitutional requirement that all relevant
circumstances should be considered before any one is evicted from his
or her home.
Since
it is commmon cause that the premises from which Mrs Roys is still to
be evicted are occupied by her as her home, what the
respondent would
(' have been required to do is allege the relevant circumstances
which it says would entitle it to the eviction
order.
Of
course if the question of whether the premises are in fact occupied
as a home is in issue, then it would not be necessary for
a plaintiff
to allege that it is not the defendant's home, but for the defendant
to raise that issue by way of a plea. That will
be the issue on which
the matter will go to trial. If the defendant is successful in
showing that it is her home, he or she will
be entitled to have the
plaintiff's claim dismissed. The plaintiff can avoid this s'tuation
in circumstances where there is doubt,
by pleading in the
alternative.
In
the result the appeal succeeds and the magistrate's order is amended
to read that:
"The
defendant Mrs
Ross's
exception
to the plaintiff's particulars of claim is upheld and the plaintiff's
claim is dismissed for failure to make the necessary
allegations
mandated by Section 26(3) of the Constitution Act 108 of 1996. the
plaintiff is given leave to amend its particulars
of claim
accordingly within 21 days of the date of this order.."
The
respondent is ordered to pay the costs of this appeal and also the
costs o* the exception.
JOSMAN,
AJ
I
agree, and it is so ordered.
DESAI,
J