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[2024] ZANCHC 18
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Pick n Pay Retailers (Pty) Ltd v Cascade Avenue Trading 158 (Pty) Ltd (150/2024) [2024] ZANCHC 18 (26 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
Reportable
Case
No: 150/2024
In
the matter between:
PICK
‘N PAY RETAILERS (PTY) LTD
APPLICANT
And
CASCADE
AVENUE TRADING 158 (PTY) LTD
RESPONDENT
Neutral citation:
Pick
‘n Pay Retailers (Pty) Ltd v Cascade Avenue Trading 158 (Pty)
Ltd
(Case no 150/2024) (26 February 2024)
Heard:
14
February 2024
Delivered:
26
February 2024
Judgment
Phatshoane
DJP
[1]
The applicant, Pick ‘n Pay Retailers (Pty) Ltd, seeks
judicial
sanction
on an urgent basis to perfect its security pursuant
to the provisions of a General Notarial Bond: B[...] 1[...] (the
bond) and to
exercise its rights as provided for in clauses 6.1.1 to
6.1.10 of the bond against the respondent,
Cascade
Avenue Trading 158 (Pty) Ltd,
by inter alia, taking
possession of
the
respondent’s
movable assets
and vesting control of its business in its hands
.
[2]
One of the bases for the respondent’s opposition is that the
application is
not urgent because the applicant waited 13 days, since
delivery of the notice of breach, in which it demanded payment within
48
hours, before it launched the present application. Insofar as the
applicant alleged that the respondent became indebted to it from
18
December 2023, it was argued, that there appeared to have been no
reason why the application was not brought at the time.
Therefore, the urgency was self-created.
[3]
The circumstances allegedly giving rise to urgency upon which
the applicant relies
are multifarious
. It was argued for
it that in the event the matter was not disposed of on an urgent
basis, further payments of approximately
R1 400 000 each week will
become due and payable on the 28-day cycle. This would significantly
increase the respondent’s
indebtedness to the applicant each
week. It was further argued that the respondent has been unable to
trade out of its loss-making
position and is not able to discharge
its indebtedness to the applicant.
[4]
It was further argued for the applicant that had it approached the
court after the
first default around 25 December 2023, the respondent
would have complained of prejudice. The applicant’s brand, so
it was
argued, is well known and it cannot without more seek to
perfect its bond immediately after a retailer defaults on a payment.
The
applicant maintains that the stock it supplies to the respondent
is its largest tangible security. Each day that passes the respondent
is selling the stock, but not effecting payment of what is due and
thereby diminishing the applicant’s security.
[5]
The applicant went on to argue that the respondent continues to order
groceries and
allied products from it but fails to pay the amounts
due. It submitted that it has observed that customers and the general
public
do not distinguish between it and the respondent when the
respondent's store appears to be under-stocked. To obviate negative
publicity
and to protect its brand, the applicant contended that it
was important for it to perfect its security in order to manage the
store.
The manner in which the respondent has dealt with the
applicant, if allowed to continue, it was argued, will result in the
closure
of the store and prejudice not only the applicant’s
interests but also the well-being and lives of the employees,
customers,
and the general community of Galeshewe and surrounding
areas who depend on the applicant to stock the store.
[6]
The respondent is of the view that the applicant’s concerns are
not legitimate
because it failed to act soon upon the notice of
breach. In my view, a
s
ustained
commercial loss would require that the matter be disposed of on a
truncated basis. The applicant would not be afforded
substantial
redress at a hearing in due course
. I am
satisfied that the applicant acted conscientiously and promptly
enough in bringing the application.
All the necessary
affidavits, albeit on suitably abridged time periods, were filed and
the issues fully ventilated through
argument. I can conceive of
no prejudice. The point taken that the jurisdiction of this Court is
not engaged had been abandoned.
[7]
Approximately 15 years ago, on 25 October 2008, the applicant and the
respondent concluded
a written franchise agreement. To secure the
respondent’s continuing indebtedness, it executed the bond in
favour of the
applicant which was registered in the Deeds Registry,
Kimberley, on 25 August 2008. In terms of the franchise agreement the
respondent
agreed to pay all amounts owing by it to the applicant in
respect of the purchase of goods and check-out packaging on the 28th
calendar day of the cut-off date as would be reflected in the
relevant end of week statement. The respondent would purchase stock
every week and thus weekly payments would fall due in terms of the
28-day cycle and weekly statements issued.
[8]
The bond would be executable against the respondent where, inter
alia, it commits
any breach of any of its terms and conditions or the
franchise agreement; it fails to pay any amount due to the applicant
promptly
on due date; or the applicant believes that its interests
are being imperilled by any action of the respondent or its officers,
servants or creditors.
[9]
During the period 25 December 2023 to 15 January 2024, the applicant
intimated, the
respondent failed to honour payment of the amounts
that became due and payable at the end of every week and therefore
became indebted
to it in the amount of R5 737 214.62 which increased
to R6 740 050.24 as at 6 February 2024. The following amounts,
according to
the applicant, became due and payable on the dates
referred to in the relevant end of week statements and remain unpaid:
[9.1]
R 5 69 272. 48 became due and payable under weekly statement no
202439 on 25 December 2023.
[9.2]
R 1 234 986.29 became due and payable under weekly statement no
202440 on 1 January 2024.
[9.3]
R 1 842 551.41 became due and payable under weekly statement no
202441 on 8 January 2024 and
[9.4]
R2 090 404.44 became due and payable under weekly statement no 202442
on 8 January 2024.
[10]
As already alluded to, on 10 January 2024, the applicant directed the
notice of breach to the
respondent to rectify the non-payment of its
account within 48 hours. The notice went unanswered. According to the
applicant, following
this notice, the respondent once more defaulted
on its weekly payments and the debt increased by R 2 090 404.44.
[11]
The respondent disputed the
quantum of the debt
and attached proof of payments made from the period 27 December 2023
to 05 February 2024 (appendices GA1-GA17)
which totalled R11 641 140
.
The applicant admitted that the payments were made but said these
would ordinarily be appropriated towards defraying the respondent’s
historical debt first. Therefore, the payments were allocated to the
respondent’s account as follows:
11.1
The payment of R 570 358.53 reflected on annexure “GA1”,
made on 27 December 2023, was allocated
to invoice no 202436 which
was due on 27 December 2023.
11.2
The payment of R 800 000 reflected on annexure “GA2”,
made on 29 December 2023, was allocated
as follows: R 250 555.57 to
invoice no 202437 which was due on 11 December 2023 and R 599 444.43
to invoice no 202436 which was
due on 27 December 2023.
11.3
The payment of R 400 000 reflected on annexure “GA3”,
made on 31 December 2023, was allocated
to invoice no 202437 which
was due on 11 December 2023.
11.4
The payment of R 300 000 reflected on annexure “GA4”,
made on 2 January 2024, was allocated as
follows: R 271 401.71 to
invoice no 202437 which was due on 11 December 2023 whereas R 28
598.29 to invoice no 202430 which was
due on 2 January 2024.
11.5
The payment of R 634 986.29 reflected on annexure “GA5”,
made on 2 January 2024, was allocated
to invoice no 202437 which was
due on 11 December 2023.
11.6
The payment of R 919 802.96 reflected on annexure “GA6”,
made on 6 January 2024 was allocated
as follows: R 475 825.42 to
invoice no 202437 which was due on 11 December 2023 and R 443 977.54
to invoice no 202438 which was
due on 18 December 2023.
11.7
The payment of R 900 000 reflected on annexure “GA7”,
made on 8 January 2024, was allocated to
invoice no 202438 which was
due on 18 December 2023.
11.8
The payment of R 242 551.41 reflected on annexure “GA8”,
made on 8 January 2024, was allocated
to invoice no 202438 which was
due on 18 December 2023.
11.9
The payment of R 300 000 reflected on annexure “GA9”,
made on 10 January 2024, was allocated
to invoice no 202438 which was
due on 18 December 2023.
11.10 The payment
of R 360 000 reflected on annexure “GA10”, made on 13
January 2024, was allocated to invoice
no 202438 which was due on 18
December 2023.
11.11 The payment
of R 940 000 reflected on annexure “GA11”, made on 15
January 2024, was allocated as follows:
R 399 318.25 to invoice no
202438 which was due on 18 December 2023 and R 540 681.75 to invoice
no 202438 which was due on 18 December
2023.
11.12 The payment
of R 960 404.30 reflected on annexure “GA12”, made on 18
January 2024, was allocated to invoice
no 202439 which was due on 25
December 2023.
11.13 The payment
of R 1 130 000 reflected on annexure “GA13”, made on 23
January 2024, was allocated as follows:
R 569 272.48 to invoice no
202439 that was due on 25 December 2023 and R 560727.52 to invoice no
202440 which was due on 1 January
2024.
11.14 The payment
of R 1 454 225.56 reflected on annexure “GA14”, made on
29 January 2024, was allocated as follows:
R 424 258.77 to invoice no
202440 that was due on 1 January 2024 and R 1 029 966.79 to invoice
no 202441 which was due on 8 January
2024.
11.15 The payment
of R 450 000 reflected on annexure “GA15”, made on 3
February 2024, was allocated to invoice
no 202441 which was due on 8
January 2024.
11.16 The payment
of R 450 000 reflected on annexure “GA16”, made on 4
February 2024, was allocated to invoice
no 202442 which was due on 15
January 2024.
11.17 The payment
of R 828 811,40 reflected on annexure “GA17”, made on 5
February 2024, was allocated as follows:
R 312 584.62 to invoice no
202441 that was due on 8 January 2024 and R 516 226.78 to invoice no
202442 which was due on 15 January
2024.
[12]
The applicant contended that it was entitled to allocate payments
received as it deems fit, as
set out in clause 9.3 of the agreement
which stipulates that:
“
The franchisor
[the applicant] and financier shall be entitled in their reasonable
discretion, but subject to any legal constraint
to the contrary, to
appropriate any amounts received by them from the franchisee [the
respondent]] towards the payment of any cause
or debt or amount then
owing by the franchisee to either of them under, in terms of or
pursuant to the agreement”
[13]
When all the above payments had been accounted for, the applicant
submits, the respondent remained
indebted to it in the amount of R 1
124 177.66 which did not take account of weekly statements that
became due and payable after
15 January 2024. As at 6 February 2024
the respondent owed the applicant R6 740 050.24. A reconciliation of
the respondent’s
account reflecting this is attached to the
replying affidavit. Accordingly, so it was contended, the
respondent breached
clause 8.2.1; 8.2.5 and 8.2.8 of the bond in that
it failed to pay the amounts owing promptly on due dates which
entitles the applicant
to perfect its security.
[14]
As already stated, the respondent disputed its indebtedness. It
sought to challenge from the
bar the applicant’s reconciliation
of its account and contended that the applicant had impermissibly
attempted to supplement
its case in the replying affidavit.
The
rule against new matter in reply is not absolute and should be
applied with a fair measure of common sense.
[1]
A
n
applicant is entitled to introduce further corroborating evidence by
means of a replying affidavit should the contents of an answering
affidavit call for such facts.
[2]
It was not the respondent’s case that it did not have
historical debt. To the extent that the respondent alleged that it
paid the amounts due, the applicant was entitled to adduce proof to
the contrary in reply in order to substantiate its stance in
the
founding papers on non-payment of its debt by the respondent.
[15]
Belatedly, halfway through its address in reply, when the shoe
started pinching, the respondent
sought leave, without any
substantive application, that it be allowed to file a further
affidavit to deal with the reconciliation
of its account. The
respondent had ample opportunity, at least four court days prior to
the hearing of the urgent application and
in the morning of the
hearing on 14 February 2024 to seek leave that it be allowed to
introduce a further affidavit. This it did
not do. Special
circumstances may exist where something unexpected or new emerged
from the applicant’s replying affidavit
which would necessitate
the filing of fourth set of affidavits. Nothing unforeseen or
startling evidence surfaced from the replying
affidavit.
Consequently, the application was refused.
[16]
The respondent submitted that the perfection of security was a
radical measure which is punitive
in nature and only granted in
exceptional circumstances. It further argued that perfection would
prejudice it and its direct creditors
with whom it has maintained a
good business relationship since 2008 with adverse consequences to
all its stakeholders including
its employees. The obverse of the coin
is that perfection of security may well prevent negative consequences
as it will afford
the applicant the opportunity to, inter alia,
conduct the business of the respondent, in its name, place and stead
and to pay itself
and other creditors.
[17]
I could find no authority for the proposition that perfection of
security is available only in exceptional
circumstances. Equity and
empathy cannot override contractual arrangements between
parties.
In
Contract
Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd and Others
[3]
Harms JA trenchantly stated:
“
I
cannot see how a Court, in the exercise of its discretion, can refuse
an order to an applicant who has a right to possession of
a pledged
article to take possession. The principles relating to the limited
discretion to refuse specific performance apply only
where
the creditor has another remedy, such as a claim for damages, at
its disposal. A claim for damages cannot replace a
claim for real
security. In the absence of a conflict with the Bill of Rights or a
rule to the contrary, a Court may not under
the guise of the exercise
of a discretion have regard to what is fair and equitable in that
particular Court's view and so dispossess
someone of a substantive
right.”
[18]
In
Juglal
NO v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division
[4]
Heher
JA held that the provisions of the bond in that matter (almost
identical to the provisions in the current bond), did not possess
the
pernicious
tendencies which would warrant and require the court to strike them
down as contrary to public policy. In paras 26-27 he
said:
“
[26]…
Although
neither the contract nor the common law required a court order for
the exercise of the additional powers in clauses 14.2.2
to 14.6, the
respondent expressly sought approval for the exercise of the
power to conduct the business in the manner
provided in clause
14.2.2, to sell and dispose of the business or assets in terms of
clause 14.3 and to proceed as contemplated
in clauses 14.5 and 14.6.
I have already made it clear that it did require court sanction to
take possession in terms of clause
14.2.1, which it also obtained.
That the respondent subjected the terms of the contract and its
implementation to the intervention
and oversight of the court takes
much of the sting out of the appellant's complaint about the
arbitrary, unreasonable and
oppressive nature of the contractual
powers conferred on it. While the taking over of a business as a
going concern to secure a
debt is a fairly drastic step which can, if
abused, inflict hardship on a debtor, the context of the contractual
powers in the
bond under consideration renders the provision and
exercise of the power commercially intelligible and combines adequate
protection
of the (largely perishable) security with realisation of
it in a manner calculated to achieve a realistic price (which would
certainly
be a lesser prospect were the creditor tied to a forced
sale). Moreover, as counsel for the respondent pointed out, in
exercising
the discretionary powers inherent in operating and selling
the business and the assets the respondent is obliged to act
reasonably
and to exercise reasonable judgment (
arbitrio
boni viri
):
NBS
Boland Bank Ltd v One Berg River Drive CC and Others; Deeb and
Another v ABSA Bank Ltd; Friedman v Standard Bank of SA Ltd
1999
(4) SA 928
(SCA)
([1999] 4 B All SA 183)
at 937A - F (SA). Moreover, the effect of clause 14.2.2 is that the
mortgagee acts to all intents
and purposes as the agent of the
mortgagor in exercising its powers and subject to the duties in law
that flow from that relationship.
[27]
Counsel for the appellant suggested that clauses 14.2.2 and 14.3
both permit the mortgagee to carry on the business indefinitely
while
maintaining an ongoing indebtedness by the mortgagor to itself by the
simple expedient of continuing to purchase on credit
on the
mortgagor's behalf. This, he submitted, demonstrated the oppressive
force of the provisions. I do not agree that the clauses
have that
tendency whatever the speculative limits of their misapplication.
Clauses 14.2 and 14.3 must be read subject to
clause 14.1. As soon as
the default or imperilment which gave rise to the enforcement of the
rights they provide has been overcome
the causa for the retention of
the business would fall away and the respondent would be obliged to
restore the business to the
appellant (if it has not already been
lawfully sold or the franchise agreement cancelled). If the
respondent were to seek
improperly to manipulate the powers to draw
out its hold on the business the appellant would have its remedies.
Of course, the
likely concomitant of a sale of the business is a
cancellation of the franchise agreement which is the trigger for the
assignment
or transfer of the lease, the closure of the store and the
cessation of trading at the location. These are all consequences
which the respondent is entitled to bring into operation under the
franchise agreement. They are not under attack. That they exist
independently of the bond, illustrates once again that the supposedly
unhappy results of the exercise of the powers under the bond
are in
reality no more radical than the appellant has willingly and,
commercially speaking, fairly exposed itself to without
complaint
under the contract.”
[19]
The reason the applicant registered a notarial bond is not too
far to seek. It did so in order to enable it to secure its position
in the event of the respondent falling into financial
difficulty or distress and breaching the agreement or the bond. The
bond is enforceable at the behest of the applicant provided it is
executable in accordance with its terms. An event leading to
executability came to pass because there is no evidence to controvert
that the respondent, as set out in clause 8.2 5 of the bond,
failed
to pay some amounts due to the applicant promptly. In so doing it
breached the franchise agreement. Counsel for the respondent
conceded
that there were trigger events in that the respondent did not pay on
due dates.
[20]
Clause 17.1 provides that “Notwithstanding anything to the
contrary contained herein, the
creditor shall be entitled to exercise
the rights granted to it hereunder only if at the time there is
actual obligation or indebtedness
owing by the Mortgagor to the
Creditor.” In terms of clause 9.3 of the bond the certificate
of indebtedness, in the absence
of evidence to the contrary,
constitutes sufficient proof for purposes of obtaining any judgment
or order. A day prior to the issuing
of the application, on 22
January 2024, the certificate of indebtedness attached to the
founding papers, which was not seriously
challenged, showed that the
respondent owed the applicant R 5 737 214.62. Insofar as the
respondent claimed to have paid R11
641 140.45, as already
discussed, the payments were appropriated towards its historical debt
which the applicant was entitled to
do in terms of clause 9.3 of the
franchise agreement.
[21]
As a continuing covering security the respondent declared to bind in
favour of the creditor (Pick
‘n Pay Retailers/the applicant)
all its movable property and effects of every description, corporeal
or incorporeal, n
othing
excepted and submitted them to constraint and execution as the law
directs. Clause 8 of the bond stipulates that the applicant
is
entitled, without notice to the respondent and without first
obtaining any court order to perfect its security. In
Bock
& others v Duburoro Investments (Pty) Ltd
Harms JA reaffirmed that the immediate execution clause in a mortgage
bond, permitting the mortgage creditor to execute without
recourse to
the mortgage debtor or the court by taking possession of the property
and selling it, is void. It is trite that to
perfect security in
respect of the general notarial bonds, such as the present, the
court's imprimatur is required.
[5]
[22]
Nothing had been placed before the Court to stymie
the
applicant in its quest to take immediate steps to protect its rights
as agreed with the respondent. It follows that the
application
should succeed. Where the bond becomes executable under clause 8
thereof the applicant shall be entitled to perfect
its security and
exercise powers conferred upon it as contained in clause 6.1.1 to
6.1.10 of the bond. To obviate prolixity, such
authority is
foreshadowed in the order I propose to make.
[23]
What remains is the question of cost. Clause 47.1 of the franchise
agreement provides that where
the applicant takes legal action or
obtains legal advice against the respondent, pursuant to any breach
of the terms of the agreement
by the respondent, the respondent shall
be liable to pay the applicant on an attorney and own client scale
all reasonable legal
costs incurred in so doing. The applicant is
only asking for costs on attorney and client scale. Therefore, they
must follow the
result.
[24]
As to the wasted costs occasioned by the postponement of 09 February
2024, the applicant argued
that they be borne by the respondent as it
filed its answering affidavit late. To the converse, the respondent
argued that the
applicant pay those costs because it had filed the
application on a truncated basis which necessitated the exchange and
filing
of the pleadings late. The answering affidavit was filed one
day late, on Monday 06 February 2024, outside the time allowed in the
Notice of Motion. Three days later, on the eve of the hearing of the
application, the applicant filed a replying affidavit and
prepared
the court file. The late filing of the papers and the late
preparation of the record largely occasioned the postponement
of 09
February 2024.
[25]
It is common cause that the applicant issued a similar application,
on the same date as the present
application, against the respondent’s
sister company in the Free State Division which involved the same
legal teams. Some
delays were bound to occur. As I see it both
parties are jointly accountable for the delay. I am therefore
unpersuaded that any
of them should be mulcted in the wasted costs of
09 February 2024. Each party is to bear its own costs. An order is
therefore made.
Order:
1.
The applicant, Pick ‘n Pay Retailers
(Proprietary) Limited, is hereby
authorised and empowered
through its duly authorised representative or the Sheriff of this
Court, for the purpose of perfecting
its security in terms of
Notarial General Covering Bond no B[...] 1[...] registered in
Kimberley on 25 August 2008 (Bond), to exercise
the rights as
contemplated in clauses 6.1.1 to 6.1.10 of the Bond and to:
1.1
claim and recover from the respondent, forthwith all and any
sums for the time being secured by the bond, whether then due for
payment
or not;
1.2
enter upon the premises of the respondent
(for the purpose of perfecting its security) or any other place where
any of its assets
are situated, and to take possession of its assets
including, without limitation, at Pick n Pay Family Supermarket
Galashewe situated
at Erf 9954 – 9955 Galashewe, Kimberley,
8345 and Shop No.8 Galashewe Plaza, Nobengula Street, Kimberley,
8301; and/or
1.3
conduct the business of the respondent in
the name, place and stead of the respondent and to do all such things
in respect of or
incidental to the business as the respondent would
itself have been able to do including, but without limiting the
generality of
the aforegoing, to:
1.3.1
engage and dismiss staff in its absolute
discretion, and on such terms as it may determine, subject to
applicable labour laws;
1.3.2
purchase goods of every description
provided that the applicant shall be restricted to the normal course
of the respondent's business;
1.3.3
subject to the landlord’s consent, to
hire, cancel and vary the terms of the leases of the premises of the
respondent;
1.3.4
lock, and change the locks on the premises
of the respondent;
1.3.5
receive, uplift, open and keep in its
custody post whether addressed to the business or the respondent;
1.3.6
operate on any banking account conducted by
the respondent;
1.3.7
discharge the debts of the respondent and
other liabilities including its liabilities to the applicant in terms
hereof;
1.3.8
sue and recover from any debtor of the
respondent all and any debts owing and arising from whatsoever cause;
1.3.9
draw and endorse cheques, bills of
exchange, promissory notes and other negotiable instruments; and/or
1.4
discharge the respondent's liabilities to
it in terms of the Bond by selling the business of the respondent and
any of its assets
either as a going concern or piecemeal and whether
as principal or agent as the applicant in its absolute discretion
determines,
by public auction or, on reasonable notice to the
respondent not exceeding 7 (seven) days, by private treaty; and/or
1.5
take over the respondent's business as a
going concern or the respondent's assets at a valuation placed
thereon by an independent
chartered accountant or other independent
expert appointed by the applicant's auditors; and/or
1.6
apply for and procure the transfer of all
licences, quotas, permits, registration certificates and the like
that may have been issued
to the respondent; and/or
1.7
sign or subscribe on behalf of the
respondent to all applications or agreements for or transfer of
licences, quotas, permits, registration
certificates and the like
that relate to the assets hereby mortgaged; and/or
1.8
sub-let, cede and/or assign such rights
and/or obligations in respect of any leases or sub-leases of the
premises of the respondent;
and/or
1.9
do all such other acts as may be necessary
or desirable to record the sale, disposal and/or transfer, as the
case may be, of any
assets hereby mortgaged; and/or
1.10
employ such other remedies and to take such
other steps against the respondent as are in law allowed;
2
The respondent is to pay the costs of the
application on an attorney and client scale, including the costs
consequent upon the employment
of senior counsel.
3
In respect of the costs of 09 February
2024, it is ordered that each party bears its own costs.
MV
PHATSHOANE DJP
Appearances:
For the applicant:
Adv
HJ Smith SC
Instructed by:
DLA
Piper South Africa (RF) Inc, Johannesburg
Duncan
& Rothman Inc, Kimberley.
For the
respondents:
Adv DM Pool
Instructed by:
Seton Smith &
Associates, Cape Town.
Majiedt Swart Inc,
Kimberley.
[1]
Smith
v KwaNonqubela Town Council
1999
(4) SA 947
(SCA) para 15.
[2]
See Erasmus: Superior Court Practice, DE Van Loggerenberg - RS 18,
2022, D1-67 and authorities cited therein.
[3]
2003 (2) SA 253
(SCA) a
t
260B-D.
[4]
2004 (5) SA 248 (SCA).
[5]
Bock
& others v Duburoro Investments (Pty) Ltd
2004
(2) SA 242
(SCA) para 7.