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[2000] ZASCA 174
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Municipality of Cape Town v Bakkerud (311/97) [2000] ZASCA 174; [2000] 3 All SA 171 (A); 2000 (3) SA 1049 (SCA) (29 May 2000)
REPORTABLE
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case
No: 311/97
In
the matter between
THE MUNICIPALITY OF CAPE
TOWN Appellant
and
GLADYS MARJORIE BAKKERUD
Respondent
CORAM
:
HEFER,
MARAIS, SCHUTZ, STREICHER JJA
et
MPATI AJA
DATE
HEARD
:
2 May 2000
DATE
DELIVERED
:
29
May
2000
Municipality - permissive
road and pavement repairing powers - liability at
common law for damage caused
by holes in pavement - widening of ambit of
liability for omissions in
law of delict - whether earlier “municipality cases”
decided in AD remain
authoritative.
----------------------------------------------------------------------------------------------------
JUDGMENT
----------------------------------------------------------------------------------------------------
MARAIS
JA
MARAIS
JA: [1] Few problems have so persistently exercised the
minds of lawyers everywhere as liability for omissions
in the law of
delict (tort). A particularly thorny aspect of the wider problem is
the liability of local authorities exercising
purely permissive
statutory powers of roadmaking and repair when citizens suffer
damage as a consequence of the state of a road
or pavement. This is
yet another case in which these issues arise.
[2]
First, the facts. Respondent, an elderly lady, lives in Mount
Nelson Road, Sea Point in Cape Town. She was walking
along the
pavement of that street towards her home. There were two holes in
the tarred pavement which had been there for at
least six months.
They were approximately fifteen centimetres in diameter and about
ten centimetres deep. She stepped into
one of the holes, stumbled,
and fell. She had been aware of the existence of the holes but
“must have been thinking about
other things” when she
stepped into them. She sustained injuries and suffered loss.
Within a few days of the incident
appellant (the Municipality of
Cape Town) repaired the holes in the pavement. The relevant
applicable legislation empowered,
but did not oblige, appellant to
construct and maintain and repair streets and pavements within its
area of jurisdiction.
[3] Respondent’s
claim for damages was upheld in the magistrate’s court. The
magistrate made no finding on the
question of respondent’s
possible contributory negligence, an issue which had been raised by
appellant. Appellant appealed
to the Cape Provincial Division. A
full court (Fagan DJP, Brand
et
Hlophe JJ) reviewed the applicable law and concluded that the
fetters upon the imposition of liability in delict in cases of
omission were no longer as rigid as had at one time been supposed.
It considered that earlier cases
1
decided in this court which accorded a large measure of immunity
from action to local authorities which were empowered, but not
obliged, to build and maintain streets and pavements, were no longer
to be regarded as authoritative in the light of subsequent
decisions
2
of this court relating to omissions, albeit in admittedly different
contexts.
[4] Writing for the
court
a quo,
Brand J opined that the relative immunity conferred upon local
authorities in what have come to be known as “the municipality
cases” in this court was inconsistent with the current “legal
convictions of the community”
3
which require “municipalities to keep streets and pavements in
a safe condition”. Having characterised failure to
do so as
wrongful, the learned judge proceeded to consider whether the
failure was attended by fault
(culpa)
and concluded that it was.
[5]
He acknowledged that, in considering whether or not fault could
be attributed to a municipality, account would have to
be taken of
all factors, including financial constraints, which have a bearing
upon the reasonableness or otherwise of the omission.
His
conclusion was expressed thus:
“It follows
from the aforesaid legal principles that appellant’s failure
to repair the holes constitutes an unlawful
act of omission. The
only question is therefore whether appellant was negligent. The
uncontested evidence of respondent was
that the holes in question
had been there for at least six months prior to the accident. The
fact that the holes were repaired
within two days after the
accident, justifies the inference that such repairs did not impose
an undue burden on appellant. In
the absence of any explanation why
the repairs to the pavement were not effected much earlier, I cannot
criticise the learned
magistrate’s finding that the appellant
was negligent. In fact, this was fairly conceded by Mr Binns-Ward
in argument.”
[6] Turning to the
question of contributory negligence, the learned judge found
respondent to have been equally to blame
and reduced the award of
damages of R1 500 to R750. The judgment is reported.
4
With the leave of the court
a
quo
, given because
of the importance to appellant of the principle of law involved in
imposing a legal duty to repair streets and
pavements upon it, the
matter is before this court. An understandable but unfortunate
aspect of the case is that there was no
appearance for respondent in
either the court
a
quo
or in this
court. She has abided the judgment of the court and appellant did
not seek a costs order against her in either court.
It has meant of
course that we have not had the benefit of counter argument from
respondent.
[7]
The legal literature on the wider topic of liability for
omissions generally has burgeoned over the years and has by now
reached formidable proportions. Nothing short of a doctoral
dissertation can do justice to it all. What follows is a blend of
my
own observations and what can be gleaned from the more recent cases
decided in this and other courts in South Africa and elsewhere,
and
from the preponderance of legal writing in the text books and
journals.
[8] Society is hesitant to impose liability
in law for, as it is sometimes put, “minding one’s own
business”.
The reticence is reflected in legal and judicial
writing by propositions such as no liability in delict for pure (or
mere) omissions.
The problem with such beguilingly simple
propositions is that, however convenient they may be, they are apt,
at worst, to mislead
the unwary and, at best, to be unhelpful. The
proposition that there is no liability in law for minding one’s
own business
is sound only if, in the eyes of the law, the situation
which has arisen, is someone else’s business and not one’s
own. But whether that is indeed so is, of course, the very question
which has proved so difficult to answer in every age. It
is
implicit in the second proposition, qualified as it usually is by
the use of accompanying epithets such as “pure”
or
“mere”, that there are omissions which are not of that
character. But what kind of omissions those might be,
is left
unanswered by such formulations.
[9] Any attempt to
decide whether a particular omission will potentially ground
liability by merely measuring it against the
standard of conduct to
be expected of a reasonable person will fail for a number of
reasons. First, that test is sequentially
inappropriate. It is of
course the classic test for the existence of blameworthiness
(culpa)
in the law of
delict. But the existence of
culpa
only becomes relevant sequentially after the situation has been
identified as one in which the law of delict requires action.
5
Secondly, the application of the classic test for
culpa
to the solution of the anterior question is calculated to produce
consequences which are likely to be too burdensome for society
to
acquiesce in shouldering them. The hypothetical reasonable person
(diligens paterfamilias)
would have to be credited with a reasonable sense of ethical or
moral responsibility and a propensity to act in accordance with
it.
To use his or her likely reaction to the situation as the yardstick
by which to measure whether or not action is required
by
law
would be
tantamount to converting every reasonably perceived ethical or moral
obligation to act into an obligation or duty imposed
by law. But
that is the very equation against which the law has thus far set its
face.
[10] The
instinctive reluctance of society to sanction the imposition of
delictual liability on the strength of such an equation
is precisely
because it is apprehensive about the consequences of simplistically
converting moral or ethical obligations into
legal duties. It is
that fear which provides the impetus for the quest by writers and
the courts for a
via
media
between the
social inutility of a barren doctrine that denies liability for
any
omissions and the
extravagance of a wholesale conversion of ethical or moral
obligations into legal duties. As to the latter,
society is simply
not prepared to live under so potentially demanding and onerous a
legal regime in the area of omissions in
the law of delict.
[11]
As to the former, the ways in which the courts sought to escape,
Houdini-like, from the confines of the no liability
for acts of
omission doctrine were many and varied. Initially, the techniques
used appeared to many to be casuistic and not
linked by any coherent
principle. A doctrine of “prior conduct” evolved, the
gist of which was that the defendant’s
own prior conduct may
have been such as to give rise to a legal duty to act. The
introduction of “a new source of danger”
was an example
of such prior conduct. But what of prior conduct that was neutral
in terms of creating a risk of harm to others?
Or cases in which
there was no discernible prior conduct on the part of the defendant?
Sometimes a legal duty to act was found
to exist because of a
particular relationship (“proximity”) which existed
between the parties. Sometimes it was
found to exist because a duty
to act was imposed by statute (despite the fact that the statute did
not itself create an independently
existing cause of action for
damages for its breach). Sometimes it was found to exist because
the defendant had control of the
property upon which a hazard arose.
The list is not exhaustive.
[12] More recently
a much criticised
6
doctrine of “general reliance or dependence” has
emerged in the Antipodes.
7
The thrust of it is that if there is a “general
expectation” in the community that a statutory power will be
exercised, then even although the statute does not compel the
exercise of the power, its non-exercise may potentially ground
liability in tort.
[13]
Looking back at the intellectual war of words which has raged
for so long in this connection, it is easy enough to discern
the
battle lines. On one side were those who were averse to what they
regarded as timorous incrementalism founded on nothing
more than a
polyglot and casuistic assemblage of cases thought to resemble one
another in one or other respect regarded as significant.
Their
aversion set them off in search of a readily identifiable and
user-friendly principle the application of which would yield
predictable and just results. On the other side were those who,
while not antagonistic to the search for such a principle, had
become convinced that it was hopeless and that their energies should
be devoted instead to defending a policy of pragmatic incrementalism
reflective of current societal notions of justice. There were also
those who hovered in the buffer strip of no man’s land,
torn
between their philosophic affection for rational principles capable
of being consistently applied and their innate sense
of caution and
appreciation of how frequently unintended and unwelcome consequences
flow from well-intentioned attempts to make
the law less complex
than it is. It is far less easy to decide with which group one
should throw in one’s lot.
[14] Was there a
unifying link in the omissions considered in the cases which would
provide a coherent and intelligible
principle
by which to decide
whether more than moral or ethical disapproval was called for and
whether a legal duty to act should be imposed?
It was not always
easy to discern one. In the end, this court felt driven to
conclude that all that can be said is that moral
and ethical
obligations metamorphose into legal duties when “the legal
convictions of the community demand that the omission
ought to be
regarded as unlawful”.
8
When it should be adjudged that such a demand exists can not be the
subject of any general rule; it will depend on the facts
of the
particular case. It is implicit in the proposition that account
must be taken of contemporary community attitudes towards
particular
societal obligations and duties.
History has shown
that such attitudes are in a constant state of flux.
[15] While that
attempt to devise a workable general principle by which to determine
on which side of the moral/legal divide
a duty to act falls has not
been universally acclaimed,
9
it has been welcomed by most.
10
Those who welcome it do so because of its inherent flexibility and
its liberation of courts from the conceptual strait jacket
of a
numerus clausus
of specific instances in which a legal duty to act can be
recognised. Those who do not are distrustful of the scope it
provides
for equating too easily with the convictions of the
community a particular court’s personal perception of the
strength
of a particular moral or ethical duty’s claim to be
recognised as a legal duty. That is a risk which is not peculiar to
this particular problem. There are many areas of the law in which
courts have to make policy choices or choices which entail
identifying prevailing societal values and applying them. But
courts are expected to be able to recognise the difference between
a
personal and possibly idiosyncratic preference as to what the
community’s convictions
ought
to be and the
actually
prevailing
convictions of the community. Provided that
courts
conscientiously bear the distinction in mind, little, if any, harm
is likely to result.
[16]
The present position regarding omissions in the law of delict is
accurately described by Corbett JA (as he then was)
in the public
lecture entitled Aspects of the Role of Policy in the Evolution of
our Common Law and published in
[1987] 104 SALJ 52.
The learned
judge of appeal said (at 56):
“
Even in 1975
there were probably still two choices open to the court in the
Ewels
case. The one was
to confine liability for an omission to certain stereotypes,
possibly adding to them from time to time; the
other was to adopt a
wider, more open-ended general principle, which, while comprehending
existing grounds of liability, would
lay the foundation for a more
flexible and all-embracing approach to the question whether a
person’s omission to act should
be held unlawful or not. The
court made the latter choice; and, of course, in doing so cast the
courts for a general policymaking
role in this area of the law.”
[17] In
playing that general policymaking role a court should be mindful of
its limitations in diagnosing accurately
and prescribing effectively
for the ills of society. Some have thought that the legislature is
the more appropriate sounding
board for proposed extensions of
liability in cases when public and private law intersect, as they do
in the municipality cases.
11
Be that as it may, when a court is required to consider whether a
legal duty should be imposed in a given situation the “balance
ultimately struck must be harmonious with the public’s notion
of what justice demands”.
12
[18]
With that prelude I turn to the specific omission in issue
in this case. Appellant’s case was argued in the
broad rather
than with particular reference to the facts of this case. In
substance the contention was that the relevant legislation
imposed
no obligation and cast no duty upon the municipality to build or
maintain pavements. It merely empowered it to do so.
That
distinction, so it was argued, had been regarded as critical in all
the municipality cases decided in South Africa. Where
such was the
case, and in the absence of any antecedent or concomitant act of
commission by the municipality which might necessitate
a different
result, it had been consistently held that no legal duty emanating
from the law of delict to repair a street or pavement
could arise.
[19] There can
be no doubt that that is indeed the import of the municipality cases
in South Africa. So entrenched did
the principle become that by
1958 when
Moulang’s
case
13
was decided by this court, Schreiner JA felt able to speak of “the
general immunity” recognised in those cases and
“the
high degree of immunity for municipalities in relation to accidents
caused by potholes and the like in the surface
of streets”.
[20] Little will
be gained by subjecting each of the South African cases decided
prior to
Moulang’s
case to individual analysis. Their import is reflected accurately
enough in the judgment in the latter case. Before considering
whether their authority has been undermined or terminated by
decisions such as those in
Regal,
14
Quathlamba
,
15
and
Ewels
16
it would be as well to be clear as to what it was the municipality
cases did and did not decide.
[21]
First, they did not decide that at common law a
municipality was absolutely immune from liability and that in no
circumstances could it become obliged to repair a road or pavement
or fall under a duty to warn of an unrepaired road or pavement.
[22] Secondly,
they did not decide that the relevant empowering legislation
per se
conferred,
either expressly or by necessary implication, absolute or even
relative immunity. Nor of course could they have so
decided; the
legislation was manifestly purely empowering legislation and it was
silent on the question of what obligations might
arise in the law of
delict if damage was suffered as a consequence of a negligent
omission to repair a road or pavement ownership
of which was vested
in a municipality. The fact that there have been and may still be,
existing side by side with such purely
empowering legislation, other
legislation imposing duties of repairs is not sufficient
justification for reading into the former
class of legislation an
intention to exclude such liability as might exist at common law for
failure to repair a road or pavement.
The priority which would have
to be given to the repair of roads and pavements falling within the
latter class would be of course
a relevant factor in deciding
whether or not to impose a legal duty to repair a particular road or
pavement falling within the
former class or, where a legal duty to
repair arising under the common law is found to exist, in deciding
whether the omission
to repair a road or pavement falling within the
former class was culpable. The weight to be assigned to the factor
will depend
upon the circumstances of the particular case.
[23]
Thirdly, they did not decide that if a municipality chose to
exercise its powers of repair, it could not be held liable
even if
it acted negligently in carrying out the repair. On the contrary,
it was recognised that it would indeed be liable.
[24] Fourthly,
they did decide that, absent any antecedent or concomitant act of
commission by a municipality which altered
the case, the law of
delict did not give rise to a legal duty to repair a street or
pavement. That conclusion did not rest solely
upon the permissive
and non-obligatory nature of the relevant legislation and the narrow
view taken of the scope of liability
in the common law for
omissions. It rested at least in part upon policy considerations
thought to make it undesirable to impose
a legal duty to repair upon
municipalities.
17
[25] To what
extent, if any, are the cases which have broadened the scope of
potential liability in delict for omissions
destructive of the
municipality cases? They certainly do not expressly profess to
overrule them. However, it seems plain that
they undermine at least
part, and a substantial part at that, of the foundations upon which
the “general immunity”
doctrine rested in those cases.
In so far as the municipality cases proceeded from the premise that
“our law of negligence
recognises liability for omissions only
exceptionally, and more particularly when there has been a previous
act of commission
on the part of the alleged wrongdoer”,
18
they inhibited the courts concerned from enquiring whether,
notwithstanding the absence of a legislatively imposed duty to
repair or any prior or concomitant act of commission, the legal
convictions of the community demanded that a legal duty to repair
(or to warn)
dehors
the legislation should be recognised.
[26] It is true
that in
Moulang’s
case this court re-asserted the general or relative immunity of
municipalities in this area of the law despite declining to
investigate, far less decide, what “the better view about
liability for omissions in general”
19
might be, and that this may suggest that it did not regard the
correctness of its narrow view of that liability as critical to
the
continued existence of that immunity. Nonetheless, once it has been
accepted (as it has been) that the premise was indeed
erroneous, the
authority of the conclusions reached in the municipality cases in
regard to any supposed general immunity and
the scope of liability
for omissions in general must necessarily be considerably
diminished. In other respects, the authority
of those cases remains
unimpaired.
[27] While the
court
a quo’s
conclusion that it was open to it to re-visit the general or
relative immunity of municipalities and, if justification existed
to
jettison the notion, was therefore correct, I think that, having
done so, it was wrong to substitute for it what amounts to
a blanket
imposition upon municipalities generally of a legal duty to repair
roads and pavements. In my view, it has to be recognised
that in
applying the test of what the legal convictions of the community
demand and reaching a particular conclusion, the courts
are not
laying down principles of law intended to be generally applicable.
They are making value judgments
ad
hoc
.
[28]
A minuscule and underfunded local authority with many other and
more pressing claims upon its shallow purse, and which
has not kept
in repair a little used lane in which small potholes have developed
which are easily visible to and avoidable by
anyone keeping a
reasonable look-out, may well be thought to be under no legal duty
to repair them or even to warn of their presence.
A large and
well-funded municipality which has failed to keep in repair a
pavement habitually thronged with pedestrians so densely
concentrated that it is extremely difficult to see the surface of
the pavement, or to take evasive action to avoid potholes of
a
substantial size and depth, may well be under a legal duty to repair
such potholes or to barricade or otherwise warn of them.
There can
be no principle of law that all municipalities have at all times a
legal duty to repair or to warn the public whenever
and whatever
potholes may occur in whatever pavements or streets may be vested in
them.
[29]
It is tempting to construct such a legal duty on the strength
of a sense of security engendered by the mere provision
of a street
or pavement by a municipality but I do not think one can generalise
in that regard. It is axiomatic that man-made
streets and pavements
will not always be in the pristine condition in which they were
when first constructed and that it
would be well- nigh
impossible for even the largest and most well-funded municipalities
to keep them all in that state at all
times. A reasonable sense of
proportion is called for. The public must be taken to realise that
and to have a care for its own
safety when using the roads and
pavements.
[30]
It is not necessary, nor would it be possible, to provide a
catalogue of the circumstances in which it would be right
to impose
a legal duty to repair or to warn upon a municipality. Obvious
cases would be those in which difficult to see holes
develop in a
much used street or pavement which is frequently so crowded that the
holes are upon one before one has had sufficient
opportunity to see
and to negotiate them. Another example, admittedly extreme, would
be a crevice caused by an earth tremor
and spanning a road entirely.
The variety of conceivable situations which could arise is
infinite.
[31]
Per
contra
, it would,
I think, be going too far to impose a legal duty upon all
municipalities to maintain a billiard table-like surface
upon all
pavements, free of any subsidences or other irregularities which
might cause an unwary pedestrian to stumble and possibly
fall. It
will be for a plaintiff to place before the court in any given case
sufficient evidence to enable it to conclude that
a legal duty to
repair or to warn should be held to have existed. It will also be
for a plaintiff to prove that the failure
to repair or to warn was
blameworthy (attributable to
culpa
).
It is so that some (but not all) of the factors relevant to the
first enquiry will also be relevant to the second enquiry
(if it be
reached), but that does not mean that they must be excluded from the
first enquiry. Having to discharge the onus of
proving both the
existence of the legal duty and blameworthiness in failing to fulfil
it will, I think, go a long way to prevent
the opening of the
floodgates to claims of this type of which municipalities are so
fearful.
[32] In the present
case there is very little in the way of evidence to go on when it
comes to deciding whether or not it
should be held that the
municipality was under a legal duty either to repair these holes or
to warn the public of their existence
and that its failure to do
either was negligent. However, there is just enough to warrant a
finding that it was. Sea Point
is a densely populated suburb. The
pavement abutted on residences and would have been in constant use.
There were two holes
in close proximity to one another and they were
not shallow. There was also a pole near the holes from which a wire
cable ran
which was attached to the pavement in the vicinity of the
holes. It had the effect of shepherding a passer-by in the
direction
of the holes. The pavement was relatively narrow. The
holes had been there for many months. No evidence was given on the
municipality’s
behalf. In this court Mr Binns-Ward adopted
the position that unless the immunity conferred by the municipality
cases was re-affirmed,
the municipality accepted that it would be
liable. In the circumstances, it is unnecessary to subject to any
further scrutiny
the factual foundation for the existence of a
legal duty and a finding that there was
culpa
in failing to fulfil it.
[33] The appeal is dismissed. There will be
no order as to costs either in this court or in respect of the
application for
leave to appeal.
R
M MARAIS
JUDGE
OF APPEAL
HEFER JA)
SCHUTZ JA)
STREICHER
JA)
MPATI
AJA)
CONCUR
1
Haliwell
v Johannesburg Municipal Council
1912
AD 659
;
Municipality of Bulawayo v
Stewart
1916 AD 357
;
Cape
Town Municipality v Clohessy
1921 AD
4
;
De Villiers v Johannesburg
Municipality
1926 AD 401
;
Moulang
v Port Elizabeth Municipality
1958(2)
SA 518 (A). Collectively, “the municipality cases”.
2
Regal
v African Superslate (Pty) Ltd
1963(1)
SA 102 (A);
Minister of Forestry v
Quathlamba (Pty) Ltd
1973(3) SA 69
(A);
Minister van Polisie v Ewels
1975(3) SA 590 (A). See too
Butters v
Cape Town Municipality
1993(3) SA 521
(C); 1996(1) SA 473 (C);
Van der Merwe
Burger v Munisipaliteit van Warrenton
1987(1) SA 899 (NC);
Rabie v
Kimberley Munisipaliteit en ‘n Ander
1991(4) SA 243 (NC);
Silva’s
Fishing Corporation (Pty Ltd v Maweza
1957(2) SA 256 (A).
3
The
phrase is the translation in the law reports of the phrase
“regsoortuiging van die gemeenskap” used by Rumpff
CJ at
597 B of
Ewel’s
case (note 2). It is not a particularly happy rendering. What
after all is a
legal
conviction?
“Sense of
what
the
law
ought to be” would, I think, convey the meaning more
accurately. However, as the rendering in the law reports is commonly
used, I shall fall in line and continue to use it in this judgment.
4
Cape
Town Municipality v Bakkerud
1997(4)
SA 356 (C).
5
Administrateur,
Transvaal v Van der Merwe
1994(4) SA
347 (A) at 364 G. It would of course be permissible, in an
appropriate case where it seems clear that on any view
of the scope
of such legal duty to act as could conceivably be imposed in the
first phase the defendant has not behaved in a
blameworthy fashion
according to the traditional test for
culpa
,
to omit the first phase, to assume against the defendant that he was
not free in law to refrain from any action, but to acquit
him of
liability because of the absence of any
culpa
.
6
Pyrenees Shire Council v Day
[1998] HCA 3
;
(1998) 192 CLR 330
at 385-388; 408-412. For a more guarded and
less hostile reaction in the United Kingdom, see
Stovin
v Wise
[1996] UKHL 15
;
[1996] AC 923
at 954-955. For
an overview of the more recent decisions on the subject of liability
in delict of public bodies in the United
Kingdom, Australia, New
Zealand and Canada, see the contribution by Stephen Todd entitled
Liability in Tort of Public Bodies
in
Torts
Tomorrow - A Tribute to John Fleming
,
(1998) edited by N J Mullany and A M Linden at 35-36
7
Sutherland Shire Council v Heyman
[1985] HCA 41
;
(1985) 157 CLR 424
;
Parramatta City
Council v Lutz
(1988) 12 NSWLR 293
;
Pyrenees Shire Council v Day
[1998] HCA 3
;
(1988) 192 CLR 330
(Australia);
Invercargill
City Council v Hamlin
[1996] UKPC 56
;
[1996] AC 624
(PC) (New Zealand).
8
Minister van Polisie v Ewels
1975(3) SA 590 (A). The English translation from the Afrikaans is
taken from the headnote. See note 3.
9
The Actionable Omission - Another
View of Ewel’s Case
(1976) 93
SALJ 85.
The nom de plume Amicus Curiae was that of the Hon George
Colman, the distinguished former Transvaal judge. R Zimmermann,
The Law of Obligations - Roman
Foundations of the Civilian Tradition
,
1046 n. 299.
10
Zimmermann and Visser,
Southern
Cross - Civil Law and Common Law in South Africa,
628 n. 225.
11
Schreiner JA in
Moulang’s
case (note 1) at 523 F; Amicus Curiae (note 9) at 87.
12
Faiga v Body Corporate of
Dumbarton Oaks
1997(2) SA 651 (W) at
668 E (overturned on the facts on appeal (1999(1) SA 975 (SCA)), the
court refraining from comment on the
court
a
quo’s
view of the law).
13
1958(2) SA 518 (A)
14
1963(1) SA 102 (A)
15
1973(3) SA 69 (A)
16
1975(3) SA 590 (A)
17
Moulang’s
case
(note 1) at 522 F-G
18
Schreiner JA in
Moulang’s
case (note 1) at 522 H
19
Schreiner JA at 523 E