About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2020
>>
[2020] ZASCA 110
|
|
Mitsubishi Hitachi Power Systems Africa (Pty) Ltd v Murray and Roberts Ltd and Another (1011/2019) [2020] ZASCA 110; 2021 (5) SA 532 (SCA) (29 September 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1011/2019
In
the matter between:
MITSUBISHI
HITACHI POWER SYSTEMS
AFRICA
(PTY) LTD
APPELLANT
and
MURRAY
& ROBERTS POWER & ENERGY
a
trading division of
MURRAY
AND ROBERTS LTD
FIRST RESPONDENT
ESKOM
HOLDINGS SOC LIMITED
SECOND RESPONDENT
Neutral
citation:
Mitsubishi
Hitachi Power Systems Africa (Pty) Ltd v Murray and Roberts Ltd and
Another
(Case
no 1011/2019)
[2020] ZASCA 110
(29 September 2020)
Bench:
NAVSA,
DLODLO and NICHOLLS JJA and POYO-DLWATI and UNTERHALTER AJJA
Heard:
8
September 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 29 September 2020.
Summary:
Application
by a subcontractor for the disclosure by a contractor of
information concerning initiative/incentive arrangements
concluded
between contractor and employer – disclosure sought to assess
subcontractor’s entitlement to contractual
benefits in terms of
the subcontract– right to information recognised as an incident
of the contractor’s duty of good
faith and the cooperation
required of parties to have an informed understanding of their rights
and duties – no conflict
of duties found to prevent the
contractor from making disclosure – confidentiality claim
unfounded- order of
court below modified consistent
with the scope of the subcontractor’s right.
ORDER
On
appeal from
:
Gauteng Division of the High Court, Johannesburg (Van Der Linde J
sitting as court of first instance): judgment reported
sub
nom Murray & Roberts Limited v Mitsubishi Hitachi Power Systems
Africa (Pty) Ltd and Another
[2019]
ZAGPJHC 56.
1. The appeal is
dismissed with costs, including the costs occasioned by the
employment of two
counsel.
2. The order of the
High Court is substituted as follows:
‘
The
first respondent is directed to disclose to the applicant:
(a) those portions of the
Incentive Arrangements concluded between the first and second
respondents that are relevant to the applicant’s
entitlement to
contractual benefits in terms of clause 11.3 of the subcontracts
subsisting between applicant and first respondent
(“the
subcontracts”);
(b) information that is relevant
to the contractual benefits received by the first respondent that
relate to the subcontract works
to which the applicant has an
entitlement in terms of clause 11.3 of the subcontracts.
The first respondent is ordered
to pay the costs of the application.’
3. The first
respondent is ordered to pay the costs of this appeal.
JUDGMENT
UNTERHALTER
AJA (NAVSA, DLODLO and NICHOLLS JJA and POYO-DLWATI AJA concurring)
[1]
The
appellant, Mitsubishi Hitachi Power Systems Africa (Pty) Ltd
(Mitsubishi), as the contractor, concluded an agreement (the Main
Contract) with the second respondent, Eskom Holdings Soc Ltd (Eskom),
as the employer. Mitsubishi concluded agreements (the subcontracts)
with the first respondent, Murray & Roberts Ltd (M&R), as the
subcontractor, to carry out a portion of the works. These
agreements
concern the construction of the Medupi and Kusile power stations.
[2]
M&R
alleged that Mitsubishi and Eskom concluded a further agreement,
which M&R referred to as the Incentive Agreement. M&R
is not
a party to the Incentive Agreement. M&R sought the disclosure of
the Incentive Agreement from Mitsubishi, along with
all the relevant
details relating to the Incentive Agreement, including the actual
benefits received by Mitsubishi from Eskom.
Mitsubishi was not
willing to make this disclosure.
[3]
In
terms of the subcontracts, all disputes between the parties must be
referred for resolution by a Dispute Adjudication Board (DAB).
M&R
referred its dispute with Mitsubishi to the DAB. The adjudicator, Mr
Myburgh, refused to order Mitsubishi to make the disclosures
sought
by M&R. Mr Myburgh found that M&R enjoyed a contractual right
to the disclosure of the Incentive Agreement. However,
Mr Myburgh
reasoned that, absent Eskom’s consent (which it had declined to
give), the Main Contract bound Mitsubishi to keep
the Incentive
Agreement confidential, and the adjudicator lacked the power to
compel Mitsubishi to make the disclosures because
this would place
Mitsubishi in breach of the Main Contract with Eskom.
[4]
M&R
then made application to the Gauteng Division of the High Court,
Johannesburg (Van der Linde J) to secure the disclosure
it sought.
There it was successful.
[1]
Van
der Linde J found that there was sufficient reason for the matter to
be entertained by the court, and, upon a proper interpretation
of the
relevant provisions of the Main Contract and the subcontracts, held
that there was no obstacle to granting the relief claimed
by M&R.
[2]
Van der Linde J issued an order in terms of the prayers in the notice
of motion. Those prayers directed Mitsubishi to disclose
the
Incentive Agreement and all relevant details relating thereto,
including the actual benefits received from Eskom (the disclosure
order). Mitsubishi was also required to pay the costs of the
application. With the leave of this court, Mitsubishi appeals the
disclosure order and the costs order.
The
issues
[5]
It was
common ground before this court that it was competent for M&R to
approach the court below for the relief it sought, and
that the court
below enjoyed jurisdiction to entertain the application. Mitsubishi
had contended that the decision of the DAB precluded
M&R from
seeking relief before the courts. That contention was rejected by Van
der Linde J, who found that there was sufficient
reason for the
matter to be heard by the high court.
[3]
This finding was not pursued on appeal by Mitsubishi, and no more
need be said of it.
[6]
Three
issues fall to be considered. First, does M&R have a contractual
right to require disclosure of Mitsubishi? Second, if
M&R does
enjoy such a right, does Mitsubishi owe a duty to Eskom to keep the
Incentive Agreement and the details pertaining
to that agreement
confidential? If so, does this preclude M&R from exercising its
right of disclosure? Third, if not, what
is the scope of M&R’s
right and what is the appropriate remedy?
[7]
I
consider these issues in turn.
The
disclosure right
[8]
M&R
contended that clause 11.3 of the subcontracts provides the basis for
its contractual right to disclosure from Mitsubishi.
Clause
11.3 reads as follows:
‘
The
Contractor shall, upon receiving any contractual benefits from the
Employer under the Contract, pass on to the Subcontractor
such
proportion thereof as may relate to the Subcontract Works.’
In
addition, M&R relied upon the following provision contained in
clause 2.4 of the Variation Agreement concluded between M&R
and
Mitsubishi:
‘
Although
nothing contained in this Variation Agreement is to be construed as
creating a partnership in any legal sense between the
Parties, it is
nevertheless to be emphasised that the manner in which the parties
will act in good faith
vis-à-vis
each other to completion of the amended subcontracts shall portray a
“
spirit of
partnership
”,
cooperation and trust . . . .’
[9]
M&R
submitted that its entitlement to a portion of the contractual
benefits received by Mitsubishi under the Main Contract requires
that
M&R must be given information so as to determine its entitlement
and the quantum thereof. Mitsubishi, as the recipient
of the
contractual benefits, has a duty to pass on to M&R its share of
the benefits. It is an incident of this duty and the
overarching
obligation to act in good faith that renders Mitsubishi liable to
make the disclosures sought of it.
[10]
Mitsubishi
accepted that the terms of clause 11.3 entitle M&R to a portion
of the contractual benefits. It relied upon two contentions
to negate
that seeming entitlement.
[11]
First,
Mitsubishi claimed that the contractual benefits referred to in
clause 11.3 do not include contracts to which M&R is
not a party.
The Incentive Agreement sought by M&R, it was claimed, does not
exist. There are a series of ‘Initiative
Arrangements’
subsisting between Eskom and Mitsubishi to which M&R is not a
party. The Initiative Arrangements are for
the benefit of Eskom and
Mitsubishi, and not for the benefit of M&R. The benefits derived
from the Initiative Arrangements
are thus not contractual benefits
falling within the scope of clause 11.3. I shall refer to this as the
privity argument.
[12]
Second,
Mitsubishi argued that the Variation Agreement concluded between
Mitsubishi and M&R revised the basis upon which M&R
was to be
remunerated for the works it carried out. M&R was entitled to be
paid on a ‘cost plus’ formula. But this,
so it was
submitted, excluded additional compensation by way of the contractual
benefits provided for in clause 11.3. I shall refer
to this as the
extinction argument.
[13]
I
observe that the affidavits of M&R and Mitsubishi are
particularly sparse in their treatment of the agreements concluded
between Eskom and Mitsubishi, as employer and contractor, and
Mitsubishi and M&R, as contractor and sub-contractor. Excerpts
of
the agreements are attached to the papers. This fragmentary approach
has made it difficult to obtain a full understanding of
the
contractual landscape.
[14]
That
notwithstanding, neither the privity argument nor the extinction
argument can prevail. As to the privity argument, the clear
language
of clause 11.3 stipulates that Mitsubishi, as the contractor, shall
pass on to M&R a proportionate share of the contractual
benefits
received from Eskom, as the employer. I will refer to this as ‘the
pass-on obligation’. Nothing in clause
11.3 requires that M&R
must be in privity of contract with Eskom and Mitsubishi to have an
entitlement to a portion of the
contractual benefits received by
Mitsubishi. On the contrary, clause 11.3 contemplates that the
contractual benefits received by
Mitsubishi under the Main Contract
give rise to the pass-on obligation owed by Mitsubishi to M&R
under the subcontract. Mitsubishi’s
pass-on obligation is an
incident of its bilateral subcontract with M&R. The contractual
benefits payable to Mitsubishi under
the Main Contract is the factual
basis upon which Mitsubishi undertook to pay a share of those
benefits to M&R. But that does
not require that M&R must be a
party to the Main Contract to enforce the bargain it struck under the
subcontracts.
[15]
Nor
can the mere assertion in Mitsubishi’s answering affidavit,
that the Initiative Arrangements are solely for the benefit
of Eskom
and Mitsubishi, suffice to avoid M&R’s claim. That would
require Mitsubishi to establish that what it receives
under the
Initiative Arrangements does not qualify as a contractual benefit in
terms of clause 11.3. Nothing is said as to what
benefits Mitsubishi
received under the Initiative Arrangements and why such benefits fall
outside the wide remit of contractual
benefits specified in clause
11.3. The privity argument accordingly fails.
[16]
The
extinction argument is premised upon the following propositions: the
Variation Agreement determines M&R’s claims for
payment,
clause 11.3 of the subcontracts has been superseded by the Variation
Agreement, and hence the disclosures sought by M&R
have become
irrelevant.
[17]
Mitsubishi
has contented itself with the following averment in the answering
affidavit:
‘
In
any event, given the cost reimbursable nature of the applicant’s
works subsequent to the conclusion of the Variation Agreement,
the
applicant has been and continues to be paid for all resources which
are authorised to be carried out on site. As such, the
disclosure of
the Initiative Arrangements has no relevance whatsoever to any
entitlement that the applicant may or may not have
and which cannot
affect any valid claim that may vest in the applicant.’
The
obscurantism of this averment does not afford proof that the
Variation Agreement novated clause 11.3 and thereby extinguished
the
pass-on obligation. At best for Mitsubishi, it claims that the
Variation Agreement changed the basis upon which M&R
was
reimbursed for the works it undertook. It does not establish that the
contractual benefits contemplated under clause 11.3 and
the pass-on
obligation to which it gives rise were extinguished and subsumed by
the payment obligations of Mitsubishi in the Variation
Agreement.
[18]
It
follows that M&R’s entitlements under clause 11.3 hold
good.
[19]
The
question, then, is whether those entitlements in terms of clause 11.3
require Mitsubishi to make the disclosures sought by M&R.
[20]
I have
already observed that the contractual benefits with which clause 11.3
is concerned are received by Mitsubishi in terms of
the Main Contract
with Eskom. M&R is not a party to that contract. M&R’s
entitlement to a portion of the contractual
benefits comes about
because of Mitsubishi’s pass-on obligation under the
subcontracts concluded between Mitsubishi and M&R.
Since M&R
is not a party to the Main contract, it has no knowledge as to the
contractual benefits due to Mitsubishi, the contractual
benefits
actually received by Mitsubishi, nor the basis of apportionment in
relation to the subcontracted works that found M&R’s
claim
to a portion of the contractual benefits received.
[21]
Mitsubishi
contended that M&R must simply make its claim, if it has one,
under conditions of ignorance. That would place M&R
in an
intolerable position. It is precisely because M&R cannot know if
it has a claim, and if so, in what amount, that it seeks
disclosure.
Absent disclosure, M&R would be required to make an entirely
vacuous demand predicated upon wholly speculative
assumptions. A
claim formulated on the basis that if Mitsubishi has received
benefits it must pay M&R its share would rightly
be rejected as
mere conjecture.
[22]
Such a
state of affairs could not have been contemplated when Mitsubishi and
M&R concluded the subcontracts. Two related considerations
support this position.
[23]
First,
contracts are to be interpreted on the basis that they have
commercial efficacy. It is altogether improbable that the parties
to
the subcontracts intended the stark asymmetry of information
contended for by Mitsubishi, so as to leave M&R significantly
impaired in seeking to enforce its entitlements under clause 11.3.
Rather, the subcontracts make commercial sense if Mitsubishi
is
required to provide information sufficient to permit M&R to
assess its entitlements and claim what is due to it.
[24]
Second,
clause 2.4 of the Variation Agreement requires of the parties that
they act in good faith and in the spirit of partnership,
cooperation
and trust. Even if the parties had not made this capacious
undertaking to one another, good faith is a principle that
is
integral to the way in which parties make and perform their
contracts.
[4]
Fidelity to this
principle requires that, under circumstances where M&R cannot
have insight into the Main Contract from which
its entitlements
derive, Mitsubishi, who receives the contractual benefits, must play
open cards so as to place M&R in a position
to know what
entitlement it may have to the portion of the contractual benefits
promised to it in terms of clause 11.3. That is
done by requiring
disclosure.
[25]
The
matter may be tested in this way. Assume that Mitsubishi pays an
amount to M&R. Would M&R be required to accept that
Mitsubishi had discharged the pass-on obligation? If M&R were to
request an accounting as to how Mitsubishi determined the
share of
the benefit paid to M&R, could Mitsubishi, in terms of the
subcontracts, decline to do so? I think not. M&R would
be
entitled to know what benefits were due to Mitsubishi from Eskom,
what benefits had been received, what portion of such benefits
relate
to the subcontract works, and hence what should be passed on to M&R.
A refusal to provide this information would be
inconsistent with the
duty resting upon Mitsubishi to act in good faith in performing the
contract. If this is so in circumstances
where Mitsubishi has made
payment in terms of clause 11.3, it is difficult to comprehend why
the duty of disclosure does not arise
in advance of any payment being
made.
[26]
M&R
depends upon Mitsubishi to obtain from the employer the benefits due
to Mitsubishi, so that M&R, in turn, may enjoy
its share. Without
disclosure, M&R cannot determine if there is any benefit due to
it or whether what has been received or
promised from Mitsubishi is
in conformity with clause 11.3. There is plainly a need for
disclosure so that M&R can enjoy and,
if necessary, enforce its
rights. A refusal to make disclosure fails to accord with what good
faith, cooperation and trust requires
of the parties because it would
leave M&R entirely dependent on the say so of Mitsubishi as to
what, if anything, is due. Parties
who cooperate in good faith do so
on the basis of an informed understanding of their rights and
obligations. In some cases, that
information must be provided by one
of the parties to the contract. This is such a case.
[27]
For
these reasons, I find that M&R enjoys a right to be provided by
Mitsubishi with information so as to permit M&R to ascertain
and
enforce its rights in terms of clause 11.3.
Confidentiality
[28]
It was
submitted on behalf of Mitsubishi that if the disclosures sought by
M&R are ordered (as the court below has done) this
will cause
Mitsubishi to breach its undertakings of confidentiality to Eskom in
terms of the Main contract. Whether this is so
is the issue to which
I now turn.
[29]
Clause
1.12 places Mitsubishi, as the contractor, under an obligation not to
disclose or to make available information regarding
the contract or
the project to any third party. Mitsubishi interprets third party to
mean any person other than Eskom and Mitsubishi,
as the parties to
the Main Contract.
[30]
This
interpretation is at odds with a number of provisions in the Main
Contract and the Conditions of Subcontract.
[31]
First,
the Main Contract recognises and contemplates that subcontractors may
be appointed to carry out part of the works. Clause
1.1.2.8 defines a
subcontractor to mean any person named in the contract as a
subcontractor or appointed as a subcontractor, for
a part of the
works. The Main Contract does not differentiate, in a binary way,
between the parties to the Main Contract and all
other parties,
styled as third parties. Rather, the Main Contract recognises, in
addition, subcontractors and project contractors
who are not third
parties. Hence, if subcontractors are not third parties, then no duty
of non-disclosure is owed by Mitsubishi
under clause 1.12 in respect
of the information sought from it by M&R.
[32]
Second,
clause 1.12 references information concerning the project, including
proprietary information of other project contractors
made available
to the contractor for or in the course of the execution of the works.
The Main Contract defines ‘other Project
contractors’ to
mean, ‘the various contractors, consultants, tradespersons or
other persons engaged in the Project
works from time to time other
than the Contractor and any Subcontractor’. The obligation to
preserve confidentiality extends
to information of this kind. The
Main contract therefore contemplates that, to carry out the works,
project contractors will make
proprietary information available which
must be protected. But this information must of necessity also be
conveyed to the subcontractor,
for how else would the subcontractor
be able to carry out the works it has contracted to undertake? It
follows that third parties
cannot include subcontractors because, if
that was the case, the contractor would not be able to convey
necessary information concerning
the project to subcontractors,
rendering the subcontracting contemplated in the Main Contract
dysfunctional.
[33]
Third,
an extract from the Conditions of Subcontract, annexed to the papers,
permits the parties, for the purpose of executing the
works, to
disclose each other’s data and information to project
contractors and other subcontractors. However, if such disclosure
is
to be made, the parties must secure confidentiality undertakings from
the project contractors and other subcontractors in a
form
substantially similar to the undertakings the parties give to each
other in the Conditions of Subcontract not to disclose
any
information regarding the subcontract or the project to third
parties. This provision mirrors the obligation of Mitsubishi
in
clause 1.12 of the Main Contract. These provisions create a regime
for the protection of certain information from disclosure.
That
regime requires that those who receive information to carry out the
works must undertake not to disclose this information
to third
parties. The need for this protection arises because M&R, in
order to carry out the works, will receive information
concerning the
project that Mitsubishi is obliged to protect from disclosure in
terms of clause 1.12 of the Main Contract. And
M&R, in turn, if
it conveys this information to other subcontractors or project
contractors, must secure like confidentiality
undertakings from these
persons. If Mitsubishi was prohibited from making such information
available because M&R is a third
party for the purposes of clause
1.12, there would be no reason to require M&R in terms of the
subcontracts to protect information
Mitsubishi was bound never to
make available to M&R. The confidentiality regime required by the
Conditions of Subcontract clearly
exclude subcontractors, such as
M&R, qualifying as third parties.
[34]
I
conclude that M&R does not qualify as a third party for the
purposes of determining the scope of Mitsubishi’s obligations
in clause 1.12. Once that is so, the obligation of Mitsubishi to make
the disclosure to M&R under the subcontracts does not
give rise
to any conflict with Mitsubishi’s obligation to protect
information from disclosure to a third party in terms of
clause 1.12
of the Main Contract.
[35]
That
Mitsubishi is not burdened with the resolution of a conflict of
duties to M&R and Eskom, for which it has contended, is
a
conclusion that may be reached on another basis. Eskom was approached
by Mitsubishi to ascertain whether the Initiative Arrangements
were
confidential and protected from disclosure to M&R, as a
subcontractor, under the terms of the Main Contract. In
correspondence
sent to Mitsubishi, Eskom claimed that the Initiative
Arrangements were protected and declined to consent to their
disclosure.
This stance led Mr Myburgh, as the adjudicator, to
conclude in his award that he lacked the power to compel Mitsubishi
to act in
breach of its contractual commitments to Eskom.
[36]
Quite
apart from my finding that Mitsubishi bore no such duties to Eskom in
respect of the Initiative Arrangements, Eskom, cited
as a party in
the application before the court below, chose not to assert any right
to prevent disclosure. Eskom abided the outcome.
Eskom’s supine
position as to whether it enjoyed any defensible interests that
Mitsubishi should defend conduces to the conclusion
that, if
Mitsubishi was burdened with a conflict of interest, which I have
found it did not, there would have been little to weigh
in the scales
in favour of non-disclosure.
[37]
There
is thus no reason why an order for disclosure should be withheld.
Mitsubishi invoked the court’s discretion on the basis
that it
would be inequitable to order Mitsubishi to disclose information that
would place it in breach of its obligations under
clause 1.12 of the
Main Contract. No such risk arises. But even if this was not so,
there is no reason of equity that should deprive
M&R of
information that is necessary to protect its contractual rights, when
Eskom has chosen to provide no reasons why protection
is warranted.
[38]
I find
therefore that the exercise by M&R of its right to disclosure is
not precluded by Mitsubishi’s confidentiality
undertakings to
Eskom in the Main Contract.
Remedy
[39]
The
disclosure order granted by the court below is framed in the wide
terms sought by M&R in the notice of motion. The disclosure
order
requires Mitsubishi to disclose the Incentive Agreement and all
relevant details relating to that agreement, including the
actual
benefits received from Eskom.
[40]
M&R
cannot secure a disclosure remedy that is greater than the right that
it enjoys. I have held that M&R has a right to
secure the
disclosure of information from Mitsubishi so as to be placed in a
position to assess what entitlement, if any, it has
to contractual
benefits specified in clause 11.3 of the subcontracts.
[41]
There
was some semantic jousting in the affidavits as to whether the
Iniative Arrangements acknowledged by Mitsubishi are the Incentive
Agreements claimed by M&R. In its founding affidavit, M&R
defined the incentive agreement it was seeking to be ‘the
incentive agreement and/or initiative arrangement’. Since
Mitsubishi admits that there are Incentive Arrangements, these
are
the documents that should be disclosed.
[42]
Mitsubishi’s
disclosure obligation should however be limited in two ways. First,
Mitsubishi should only be required to disclose
those portions of the
Incentive Arrangements that are relevant to M&R’s
entitlement to contractual benefits in terms
of clause 11.3. What is
not relevant may be redacted. However, this is not an invitation to
Mitsubishi to use redaction to assert
again the privity and
extinction arguments that have been raised and rejected before this
court. Second, M&R is only entitled
to the information that will
permit it to ascertain the contractual benefits received by
Mitsubishi that relate to the subcontract
works. That is the share of
the contractual benefits to which M&R has a claim in terms of
clause 11.3. Here, too, Mitsubishi
should exercise care. Since M&R’s
claim is by definition a share of a greater whole, the information
should place M&R
in a position to ascertain the basis upon which
contractual benefits fall within or outside the category of
subcontract works.
[43]
These
remedial limitations reflect the scope of the right to disclosure and
the substantive entitlement of M&R in terms of clause
11.3.
[44]
The
disclosure order granted by the court below is too wide. It fails to
give proper expression to the need to tailor the right
of disclosure
to the substantive entitlement of M&R in terms of clause 11.3.
The disclosure order cannot stand. It must reflect
the limitations I
have referenced.
[45]
As to
the question of the costs, although I find that the remedy which
should issue is somewhat attenuated, Mitsubishi has not prevailed
on
the main issues in this appeal. The costs must accordingly follow the
result.
[46]
In the result, the following order is made:
1. The appeal is
dismissed with costs, including the costs occasioned by the
employment of two
counsel.
2. The order of the
High Court is substituted as follows:
‘
The
first respondent is directed to disclose to the applicant:
(a) those portions of the
Incentive Arrangements concluded between the first and second
respondents that are relevant to the applicant’s
entitlement to
contractual benefits in terms of clause 11.3 of the subcontracts
subsisting between applicant and first respondent
(“the
subcontracts”);
(b) information that is relevant
to the contractual benefits received by the first respondent that
relate to the subcontract works
to which the applicant has an
entitlement in terms of clause 11.3 of the subcontracts.
The
first respondent is ordered to pay the costs of the application.’
3. The first
respondent is ordered to pay the costs of this appeal.
_________________
David Unterhalter
Acting Judge of
Appeal
APPEARANCES:
For
Appellants: A Subel SC
Instructed
by:
Pinsent
Masons SA Inc., Johannesburg
Lovius
Block Attorneys, Bloemfontein
For
Respondents: L van Tonder SC (with him M Daniels)
Instructed
by:
Tiefenthaler
Attorneys, Johannesburg
Honey
Attorneys, Bloemfontein
[1]
See
Murray & Roberts Limited v Mitsubishi Hitachi Power
Systems Africa (Pty) Ltd and Another
[2019] ZAGPJHC 56 para 39.
[2]
Ibid para 37.
[3]
Ibid para 27
et
seq
.
[4]
Beadica
231 CC and Others v Trustees, Oregon Trust and Others
[2020] ZACC 13
;
2020 (5) SA 247
(CC) para 57.