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2024
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[2024] ZAFSHC 144
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Nteshe v Christiaan (660/2021) [2024] ZAFSHC 144 (6 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
Case
number: 660/2021
In
the matter between:
SMANGA
SIMON NTESHE
APPLICANT
And
MAVIS
CHRISTIAAN
RESPONDENT
IN
RE:
MAVIS
CHRISTIAAN
PLAINTIFF/APPLICANT
And
SMANGA
SIMON NTESHE
DEFENDANTIRESPONDENT
CORAM:
BOONZAAIER
AJ
HEARD
ON:
2 MAY 2024
JUDGMENT
BY:
BOONZAAIER
AJ
DELIVERED
ON:
6 MAY 2024
INTRODUCTION:
1.
The application is
for rescission of a Contempt of Court order granted by this Court on
the
9
th
November
2023
in
terms of Rule 42(1)(a) of the Uniform Rules of Court and the Common
Law, which was granted against the Defendant/Respondent in
the main
action. The dispute arises from Divorce proceedings and Rule 43 and R
43(6) procedures which have already taken place.
2.
In
this instance I share the sentiments of the judge in the recent case
of
D
[...]
N
[
...]
Q[..]
v
P
[...]
Q
[...
]
where
it was stated
[1]
:
"This
application is yet another example of how expensive protracted
divorce proceedings can be. It demonstrates how divorce
parties, at
times, fail to resolve disputes that arise pending their divorce and
are more than willing to spend money on unnecessary
litigation."
FACTUAL
BACKGROUND:
3.
On the
25
th
March
2021
G
Wright AJ, issued an order that:
"The
Respondent
is
to
pay
maintenance
for
and
in
respect
of
the Applicant
in
the amount of R3
500
.
00
per month
.
The
R3 500
.
00
monthly
maintenance
payment
is
to
commence on
I
or before
7
th
April 2021,
and
is
to
continue thereafter on/or before the 7
th
day
of each consecutive month."
4.
It
is not contested and
the evidence before court illustrates
that the Applicant
made inconsistent payments and not in full.
5.
On the
09
th
of
November 2024
Mthimunye
AJ, ordered that the Applicant is in Contempt of the Court order of
this Court issued by G Wright AJ, on the
25
th
of March 2021
under case
number 660/2022 read with order 1760/2019.
6.
The above-mentioned
order was granted
in
the absence of
the Applicant and goes to the core of the application
in
casu.
APPLICANT:
7.
The
Applicant
sought
condonation
for
the
failure
to
lodge
the
application
timeously;
8.
It is the Applicants
case that it is
evident, that the Applicant
has
substantially complied with the court order in that:
8.1
his non- compliance
was not wilful;
8.2
his
legal representatives negotiated in bad faith.
[2]
8.3
he has made payments
towards the Rule 43 order and therefore not in non compliance or
total disregard of the order.
8.4
there were settlement
negotiations on the
8
th
November 2023,
that a
payment of R 3000.00 was made towards maintenance and R 3000.00
towards legal costs respectively.
8.5
The Applicant
alleges that his non
-
compliance
was not mala
fide
and that
he has on several occasions communicated the fact that he was unable
to pay the full amount. He
further
alleges that
the Respondent negotiated in bad faith
.
The order
was
allegedly
obtained in default.
9.
It
is
further the
contention of the
Applicant
that
the
cost order which was
granted
is
open
ended
and
open
for
interpretation
.
10.
Adv.
Nyembane
on behalf of the Applicant
argued
that
in
terms
of rule R 42(1)(a) the
court
in
Zuma
v Secretary of Judicial of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector Including Organs
of State
and Others,
[3]
held
that:
"...
the
word
"absence"
exists
to
protect litigants
whose
presence
was
precluded
.
"
11.
The court however
directed
him
to the rest of
the sentence which stated
:
"...
not
those
whose
absence
was
elected
.
"
[4]
12.
Applicant sets out
the background to the judgment having been granted.
12.1
On
25
th
March
2021,
Wright
AJ granted the R 3500.00 maintenance order.
12.2
On
02
December 2021
Chesiwe
J granted a further order to comply with Wrigh ASs order of the
25
th
March
2021
in
full and to pay henceforth R1500.00
12.3
On
24
November
2022
the matter
was set down again and postponed
to the
1
December 2022,
when
Daniso J granted an order that the Applicant needs to pay R 850
within 20 days of her order and that he continue to make payments
in
terms of the orders by Wright AJ and Chesiwe J, per month.
12.4
The matter was the
again set down for
7
th
September
2023
and
was subsequently
postponed
to
14
September 2023.
On
that day it was removed from the roll.
12.5
The Respondent then
enrolled the matter on
27
th
October
2023
for
the hearing on
2
nd
November
2023
when
it was further postponed to the 9
th
November
2023
where
the following order was granted by Mthimunye AJ against the Applicant
in casu
who
was the Respondent in the Contempt of Court application:
"1.
The Respondent is in contempt of the Court order of this court
granted by the honourable Acting Justice Wright on the 25
t
h
March
2021 under case number 6660/2021 read with order
1760/2018(hereinafter referred to as the Court Orders).
2.
The Respondent is in
contempt of Court order of this Court in terms of all cost orders
granted under case number 243/2019(herein
referred to as the Cost
orders).
3.
The Respondent is
committed to
imprisonment of a period of 60(Sixty) days.
4.
The aforementioned
term of incarceration
of
the Respondent
is
suspended
for a period of
60
days
on
condition that the Respondent comply with
the
Court
Order,
a copy
of
which
is
annexed hereto and marked as
Annexure
"A".
5.
The aforementioned
term
of
incarceration
of
the
Respondent is suspended for
a
period
of
60 days on
condition
that the
Respondent
comply
with the Cost
Orders of Court, copies of
which
is
annexed
hereto and marked as
Annexure"
E1 to
E
18".
6.
Leave
is
granted
to
the
Applicant
lo approach
the
above
honourable
Court
on
the
same papers,
duly
amplified
,
for
the putting into operation of the suspended
imprisonment,
should
the
Respondent fail or neglect to comply with prayer
4
and 5
above"
13.
Adv Nyembane submits
that it is evident that the Applicant meets both
the
requirements
of Rule 42(1)(a) namely that the judgment was granted in its absence
and that the Applicant provided a reasonable and
satisfactory
explanation for its failure to appear
.
14.
Applicant
indicated
that due to
the following he has a good
cause:
i)
it
is
important that he requires at
least
the
opportunity to air a real dispute between the parties.
ii)
he is giving a
reasonable explanation of his default;
iii)
he is showing that
his application
is
made
bona
fide
and
iv)
he is showing that he
has a
bona
fide
defence
to
the
plaintiffs claim which he
prima
facie
has
some prospects of success
.
15.
Adv.Nyembane further
argues that Rule 42(1)(a) caters for a mistake in the proceedings.
The mistake may either be one which appears
on the record of
proceedings or one which subsequently becomes apparent from the
information made available in its application
for rescission of
judgment.
16.
The
Applicant relies on the judgment of
HMI
Healthcare Corporation (Pty)
Limited
v
Medshield
Medical
Scheme
&others,
[5]
where
it
was
held that:
"Here
again, it seems to me to be clear that an order merely rescinding a
judgment does not cause irreparable prejudice, for
the definitive
sentence the effect of the decision can obviously be repaired"
The
Applicant submits that the Respondent will not suffer prejudice in
this matter and it appears that the balance of convenience
favours
the granting of the rescission
17.
The Applicant
advances not only an explanation that he was not wilful in default
but also gives a satisfactory explanation why the
contempt order
should be rescinded, notwithstanding the Respondent contention that
good cause is absent to justify the rescission.
RESPONDENT:
18.
The Respondent
conceded that the application for condonation for the late filing of
the application may be granted.
19.
The
Respondent
is
however
adamant
that
the
Contempt
of
Court
Order
was granted properly
and correctly in terms of the Uniform Rules of Court.
20.
It is Respondent's
main issue that the Applicant must explain how the rescission will
prejudice or not prejudice the other party,
for the requirement of
"good
cause" to
arise. Applicant takes the stance that because he can go to prison,
he is prejudiced and not the Respondent. Applicant
shifts the blame
to Respondent, even though the Respondent is in possession of a valid
Court order. Applicant does not deal with
the Respondent's prejudice
at all. Hence no" good cause" has been shown.
21.
Further the
Respondent contends that the Applicant has failed to adequately
explain why he could not comply with the court order.
Applicant
alleges that he was only paid half of his salary but do not append
any proof thereof
in
the founding
affidavit.
22.
Adv. Ploos von Amstel
on behalf of the Respondent directed the court to an annexure which
shows that the Applicant's monthly installment
on his car is more
than half of his indicated net salary. He argued that maintenance is
preferential to other expenses the Applicant
might have.
23.
It was further
contended by Respondent that the Applicant does not provide a list of
income and expenditures in the Founding Affidavit
therefore does not
disclose his means to comply or not to comply with the Court order.
In the Replying Affidavit the Applicant
attempts to cure the defects
in his application by appending the documents
the
Respondent
had
taken
issue
with,
thereby
not
affording
the Respondent an
opportunity
to
fully canvass the said documents in her opposing Affidavit.
24.
Adv.
von Amstel relies on the matter of
Swissborough
Diamond Mines v Government of the RSA
[6]
,
where
the court held that an Applicant must raise the issues upon which it
seeks to rely in the founding affidavit. It must do so
by defining
the relevant issues and setting out the evidence upon which it relies
to discharge the onus of proof on it in respect
thereof.
25.
It is not in dispute
that the Applicant remains in arrears with maintenance and cost in
the amount of R 67187.02
26.
Respondent submits
that it is the nub of the issue that the Applicant needs to make out
a case for the relief sought. He did not
fully canvass the issue of
the Contempt Order that was granted in his absence.
27.
The
Respondent explained in her founding affidavit in the Application for
Contempt of Court that since the Respondent has failed
to make
payments in term of Cost Orders granted against him, she had to go as
far as issuing a Writ of execution in order to recover
the arrear
costs due to her. The writ however was not served due to the
Respondent's absence at any of the attempts made by the
Sheriff.
[7]
28.
The Respondent
contends that there were no formal negotiations but for the request
for the
Applicant
to pay the arrears
in terms
of the order
.
The Applicant
misconstrued
negotiations that took place in
August
2023
and
relies on those negotiations in Reply to amplify purported settlement
on
8th
November 2023
to
justify his failure to defend the matter.
29.
The Applicant has
consistently dragged his feet and prevented the matter being
finalized since
January
2019-
it
is indicated by the vast amount of Court Orders and correspondence
between the parties' legal representatives
.
(which
was
not all referred to in the application) [my own insertion]
30.
The Applicant fails
to address the essential facts in this application. There is no proof
of any letter or e- mail from the Applicant's
attorney to indicate
that the parties have negotiated payment and that they would
therefore not attend the matter on the
9
th
of
November 2023.
31.
Respondent points out
that "good cause
"means
that the
Applicant:
i)
has a reasonable
explanation for its default;
ii)
that the application
is
bona
fide
and
not with the intention to delay the Respondent's claim.
iii)
and the third
requirement in most of the cases is if the Applicant can show that it
has a
bona
fide,
prima
facie
defence to
the Respondent's claim and that it has a
bona
fide
intention
to raise the defence if the application is granted.
32.
In terms of the
common law, a court is entitled to rescind a judgment obtained in
default of appearance if good cause can be shown.
What constitutes
good cause is that the Applicant can explain that it has a reasonable
and acceptable explanation for the default
and that on the merits, it
has a
bona
fide
defence.
33.
The Respondent
communicated verbally to the Applicant after the order of Wright AJ,
to enquire about the arrear payments. The Applicant
however indicated
via a voice note that he will not pay the extra amount as ordered and
that he does not agree with the order.
34.
This voice note was
forwarded to the Applicant's
attorney. He listened
to it and the attorney's secretary also heard the conversation as
recorded by the Respondent where the Applicant
stated that he will
not abide with the Court’s order. Confirmatory affidavits in
this regard were attached. This voice note
is not available anymore.
The Applicant took issue with the probative value of this voice note.
Adv. Ploos von Amstel
is
however of the
view that this voice message does not constitute hearsay evidence.
35.
The Respondent points
out that the Applicant
is
a Magistrate
since 2015. One can only assume that he has, in civil matters made
cost orders against parties. Further the court can
consider the fact
that the Applicant is an Officer of Court and is surely bound by an
ethical code to adhere to the Constitution
and to upheld justice at
all cost. The Applicant in this matter is not your general litigant
and ought to know better, as well
as act better. Adv Nyembane took
issue with this submission and argued that everybody is equal before
the law.
36.
The Respondent
contends that she is not in a position to proceed with the Divorce
action financially and this is completely due
to the Applicant's
willful failure to attend to his obligations in terms of the cost
orders. Therefore, the divorce action cannot
be finalise until the
cost orders have been finalized.
THE
LAW:
37.
The
requirements for contempt of court are now trite. They are the
existence of a court order; the contemnor must have knowledge
of the
court order; there must be non-compliance with the court order; and,
the non-compliance must have been wilful or
male
tides.
Once
the first three elements have been shown, wilfulness and
male
fides
will
be presumed and the evidentiary burden switches to the contemnor
.
[8]
38.
Judicial
Authority can be referred to as the power vested in judicial officers
to preside over disputes and independently decide
the outcome of such
disputes without fear, favour or prejudice through the application of
the law. There is a constitutional
expectation
that once courts have determined disputes, the orders they grant will
not only be respected but will also be carried
out.
Obeying
court orders not only demonstrate unwavering respect for the
important role played by
the
judiciary but also the commitment to the rule of law.
It
is a crime to disobey court orders unlawfully and intentionally.
[9]
HEARSAY:
39.
Section
3(4) of the Hearsay Act
[10]
defines hearsay as:
"Evidence
whether oral or in writing, the probative value which depends upon
the credibility of any person other than the person
giving such
evidence"
Case
law dictates that hearsay should be evaluated by
"
a holistic approach, assessing whether on
·
the
whole the statement was of adequate probative value in the light of
the other circumstantial evidence
taken
together
.
"
[11]
LEGAL
PRINCIPLES GOVERNING
RULE 42:
40.
Rule 42
states:
"Variation
and Rescission of Orders:
1.The
court may, in addition to any other powers it may have,
mero
motu
or
upon the
2.
application of any
party affected; rescind or vary:
a)
An order or judgement
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 therefore 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."
41.
The legal principles
governing the rescission of judgment under rule 42 have long been
settled by the courts. In terms of rule 42(1)(a),
a judgment may be
rescinded on the basis that the it was erroneously sought or
erroneously granted in the absence of any party
thereby.
The
legal principles are as follows:
1.
The rule must be
understood against its common law background.
2.
The basic principle
of common law is that once a judgment has been granted, the judge
becomes
functus
officio,
but
subject to certain exceptions of which rule 42(1)(a) is one.
3.
The rule caters for
mistakes in the proceedings.
4.
The mistake may
either be one which appears on the record of proceedings or one which
subsequently becomes apparent from the information
made available in
an application for rescission of judgement.
5.
A judgment
cannot be said to
have been granted erroneously
in
light of a
subsequently
disclosed
defence which was not known or raised at the time of default
judgment.
6.
The error may arise
in the process of seeking the judgment on the part of the Applicant
for default judgment or in the process of
granting default judgment
on the part of the court.
42.
In the
Zuma
case
supra, the court emphasized the requirements which Applicant is
required to prove under to succeed with rescission under the
common
law. The Court held:
"The
requirements for rescission of a default judgement are twofold.
First, the applicant must furnish a reasonable and satisfactory
explanation for his default. Second, it must show that on the merits
it has a
bona
fide
defence
which
prima
facie
carries
some prospect of success. Proof of these requirements is taken as
showing that there is sufficient cause for an order to
be rescinded.
A failure to meet one of them may result in a refusal of the request
to rescind."
[12]
43.
It
is trite that an Applicant who invokes this rule must show that the
order sought to be rescinded was granted in his or her absence
and it
was erroneously granted or sought. Both grounds must be shown to
exist.
[13]
Once
the Applicant meets these jurisdictional requirements the court has a
discretion whether or not to rescind its own order.
Was
the
order
erroneously
sought
and
erroneously
granted?
44.
Generally, a judgment
would have been erroneously granted if there existed at the time of
its issue a fact of which the court was
not aware of which would have
precluded the granting of the judgment and which would have induced
the court, if aware of it, not
to grant the judgment.
45.
The Supreme Court of
Appeal held that Rule 42(1)(a) was essentially a restatement of the
common law. The position of the courts
in interpreting the Rules had
been to vary and expand their application as little as possible. Rule
42(1)(a) was intended to provide
for rescission of an order that had
been erroneously sought or erroneously granted
.
46.
On whether the
judgment was erroneously sought or granted, the Supreme Court of
Appeal held that the rule properly applied, depended
on the nature of
the
error
and
not whether the error appeared from the record of the proceedings.
The
error
had
to
be
one
related
to
the
proceedings
themselves.
[own
emphasis]
47.
An application for
rescission on common law grounds must be brought within a reasonable
period
.
For
the Applicant to succeed with the application for rescission on
common law grounds, the Applicant must show good cause or sufficient
cause by giving a reasonable explanation for delay and showing that
application for rescission was
bona
fide
and
showing a
bona
fide
defence
to the claim with a
prima
facie
prospect
of success.
48.
The Appeal court
dealt with the concept of "sufficient cause" or
"good
cause"
stated that,
"these
concepts defy
precise or comprehensive definition, for many and various factors
require to be considered." The learned Judge
stated that
"it
is clear that
in principle the two essential elements of "sufficient cause"
for rescission of a judgment by default are:
(i)
that the party
seeking relief must present a reasonable and acceptable explanation
for his default; and
(ii)
that
on the merits such party has a bona fide defence which, prima facie,
carries some prospect of success. As it was held in
Chetty
v Law Society, Transvaat.
[14]
CONCLUSION:
49.
I conclude that the voice note to the Attorney is not hearsay.
50.
To establish whether
the Applicant willfully and in bad faith failed to carry out the
Court
order,
he must be
judged holistically regarding his commitment to the maintenance
order.
51.
Applicant did not
explain or give reasons why he did not make full payments. It is
clear that on the Applicant's
own
version he did not comply
with
the court order
.
52.
Applicant persists
that the mere fact that he made partial payments suffice and therefor
the Respondent was not entitled to seek
a Contempt of Court order
against him.
53.
He
relied on the case of
FAKIE
NO v SYSTEMS CClll(Pty) Ltd
[15]
which
facts are different than the matter
in
casu.
54.
What is however
relevant
in
the
Fakie
case supra
is
that
"
..
.
once
the
applicant
has
proved
the
order, service or notice, and non-compliance, the respondent bears an
evidential burden in relation to willfulness and
mala
fides:
should
the respondent
fail
to
advance
evidence
that
establishes
a reasonable
doubt
as to
whether
non-
compliance
was
willful
and mala fide
,
contempt
will
have been established beyond reasonable doubt."
[16]
55.
Whether the failure
to meet his financial obligations to the Respondent was intentional,
or as a result of the deterioration of
his financial circumstances
must be considered holistically. In the absence of proof of his
financial position I can only come
to the conclusion that the
Applicant's conduct was
male
fide
and
wilful beyond a reasonable doubt.
56.
This leads me to the
bona tides
of the
application. It should be apparent from the sequence of the events
that the Applicant was dragging his feet. As a Magistrate
and an
officer of court he should know the law.
57.
AII
South Africans have a duty to respect and abide by the law.
More
so officers of court.
[My
own emphasis.] As the Constitutional Court stated in the
Zuma
and Others supra,
courts
'unlike other arms of the State
...
rely
solely on the trust and confidence of the people to carry out their
constitutionally mandated function'
[17]
which is to uphold, protect and apply the law without fear or
favour
.
[18]
Disregard
of court orders
is
an
attack on the very fabric of the rule of law.
58.
Despite being a Magistrate
and presiding over criminal and civil law in the Magistrates Court,
the Applicant had an attorney throughout.
It
can
safely be
assumed that the Applicant was not oblivious to the consequences of
failing to
comply
with a court order. There has been a total disregard for the order to
pay the Respondent since 2021. I am satisfied that
the Applicant has
not shown good cause for the rescission of the judgment.
Costs
for 18 APRIL 2024:
59.
Applicant
rely
on
the
fact
that
his
counsel
was
not
available
that
day
.
It
was proffered only in
his Heads of Argument that his attorney was writing Notary exams
60.
Respondent invited
the Applicant to file a substantive application for postponement so
that instructions can be taken in this regard
.
Despite this
request no such application was lodged.
61.
The order which was
granted is not ambiguous. If a Court does not pertinently mention the
party to pay- it follows that the party
seeking the indulgence pays
the wasted costs on a party and party scale.
62.
Unavailability
of counsel is not a
bona
fide
reason
to seek postponement.
[19]
COSTS:
63.
The
general
rule
is
that
costs
should
follow
the
event
and
this
rule
should
be departed from only
when there are good grounds to do so.
64.
The
general rule, viz that costs follow the event is subject to the
overriding principle that the court has a judicial discretion
in
awarding costs.
[20]
65.
An
opportunity to rectify any inequity may reflect in the court's award
of costs.
[21]
66.
ln
the matter of
W
v
H
[22]
the judge granted a punitive cost order on an attorney and client
scale against the defendant and the following remarks in the
judgment
are relevant:
"189
As
indicated
in
my
judgment I am
quite
satisfied that the husband was adopting a
"scorched
earth" policy to this litigation. he was deliberately seeking to
delay the proceedings and from the very beginning
was engaging in a
dilatory tactics to drum up the costs of the action so as to put the
wife in a position where she could not afford
to defend herself...
203.Throughout
the
matter
the
husband
engaged
in
selective
and
piecemeal
discovery."
ORDER:
67.
The following order
is made:
i)
The Applicant is
ordered to pay the costs of the postponement occasioned on the 18
April 2024 on a party and party scale.
ii)
The application for
rescission is dismissed
iii)
The Applicant is
ordered to pay the costs of this application on an attorney and
client scale.
iv)
The cost of counsel
to be taxed on "Scale B" of the Uniform Rules
.
v)
The Registrar
of this court is
ordered
to
submit
a
copy of this judgment
to the Magistrate’s
Commission.
A.S.
BOONZAAIER, AJ
ON
BEHALF OF APPLICANT:
ADV
S NYEMBANE
INSTRUCTED
BY:
THEBE
ATTORNEYS
SUITE
18, KELLNER PARK
65
KELLNER STREET
BLOEMFONTEIN
ON
BEHALF OF RESPONDENT:
ADV
PC PLOOS VON AMSTEL
INSTRUCTED
BY:
MCINTYRE
& VD POST ATORNEYS
12
BARNES STREET
BLOEMFONTEIN
[1]
Unreported
case
49090/2021
in the High
Court
of
Gauteng, delivered on 12 January 2024
[2]
Page
42 of the paginated opposing affidavit par 27.4
[3]
[2021]
ZACC28;
2021(11)
BCLR
1268(CC)
at
para47.
[4]
At
7
supra
par
a
61
[5]
(2013/2016)
(202) ZASCA160 (24 November
2017)
[6]
1999(2)
SA
279 On 323F
-
324E
[7]
Page
11
paginated
papers
par
9
[8]
Fakie
NO v CCII Systems (Pty) Ltd [2006) ZASCA 52
[2006] ZASCA 52
; ;
2006 (4) SA 326
(SCA);
Pheko and Others v Ekurhuleni Metropolitan Municipality [2015) ZACC
1O; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711
[9]
Matjhabeng
Local Municipality
v
Eskom Holdings Limited and others; Mkhonto and Others v Compensation
Solution (Pty) Ltd
2017(11)
BCLR
1408 (CC); 2018(1) SA 1 (CC) para 50.
[10]
Law
of Evidence Amendment Act45 of 1988.
[11]
Kapa
v S 2023(4) BCLR(CC) handed down on 24
January
2024 marked a groundbreaking
departure
from the approach and treatment of hearsay evidence that has so far
been standard practice.
[12]
At
7 supra para 71
[13]
Zuma
case supra
[14]
1985(2)
SA
756(A)
at 765 A-E
[15]
2006(4)
SA
326 (SCA)(CC) para
8
.
[16]
At
paragraph
42
[17]
Ibid
para 1
[18]
S
v
Mamabolo
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) para
17.
[19]
Moloi
v Medi Clinic (Pty) Limited(A38/2014[204] ZAFSHC153
[20]
Jonker
v Schultz 2002 (2) SA 360.
[21]
Gore
and
another
NNO v The Master 2992(2) SA 283 (E)
[22]
(25394/2010[2016]
ZAWCH 97; [2016] 4 ALL SA
260
wee;
2017 (1) SA 196(Wee)(5
Aug 2016)