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[2024] ZAECBHC 34
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Mphahlwa v MEC for Health: Eastern Cape (761/2923) [2024] ZAECBHC 34 (19 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO: 761/2923
In
the matter between:
MANDISI
MPHAHLWA
Excipient/Plaintiff
And
MEC
FOR HEALTH: EASTERN CAPE
Respondent/Defendant
JUDGMENT
NKELE
AJ.
INTRODUCTION:
[1]
The Excipient instituted a medical negligence claim against the
defendant for damages
arising out of the mistreatment of tuberculosis
of the spine at Bedford Orthopaedic Hospital, Mthatha, in 2019. For
convenience
the parties will be referred to as the plaintiff and the
defendant. The action is being defended by the defendant and a plea
and
a special plea has since been filed. The excipient filed an
exception to the defendant’s plea and special plea on the basis
that it is vague and embarrassing and/or lacks the necessary
averments to disclose a defence.
FACTUAL
BACKGROUND.
[2]
In the special plea, the defendant raises two special pleas namely
non- compliance
with the provisions of Section 3 of the Institution
of Legal Proceedings Against Certain Organs of the State Act No.40 of
2002
(see para 1 defendant’s plea page 12 of the bundle) and
the plea of prescription in terms of section 11(d) of the
Prescription
no. 68 of 1969
[3]
In response to the defendant’s plea, the plaintiff has excepted
to the defendant’s
special plea and a plea over. The exception
was served upon the State Attorney on 3 July 2024 and filed of record
on the 8
th
of July 2024. The exception is on the basis
that it is vague and embarrassing and/or lack averments which are
necessary to disclose
a defence.
[4]
As regards the first special plea, to the effect that the plaintiff
has failed, prior
to the institution of the present proceedings, to
give notice as contemplated in section 3(1) of Act no. 40 of 2002,
the plaintiff
excepts on the basis that in order for such a special
plea to disclose a defence, the defendant must plead when the
creditor (“plaintiff”)
had had knowledge of the identity
of the debtor (“defendant”) and the facts giving rise to
the debt. The import of
the plaintiff’s exception in this
regard is that now that because the especial plea fails to state when
the creditor acquired
knowledge of the identity of the debtor and the
facts giving rise to the debt, it has failed to disclose a defence
and for that
reason the special plea is excipiable.
[5]
The excipient further takes an exception to the second special plea
of prescription
on the basis that it fails to state the facts which
the excipient was required to have knowledge of before prescription
could commence
running and to state when did he acquire actual or
deemed knowledge of such facts. Accordingly, the excipient avers, the
second
special plea is excipiable because it fails to address
sufficiently the two above mentioned issues.
[6]
Following the service and filing of the exception, on 12 July 2024,
the defendant
filed a notice in terms of Rule 30 and 30A. The Rule 30
and 30A notice, in effect, notified the excipient that the exception
filed
in terms of Rule 23 is an irregular step in that, although it
purports to be a notice in terms of Rule 23(1)(a), it fails to give
the defendant an opportunity to remove the cause of complaint. The
defendant’s notice aforesaid also complains of the
impermissible
or irregular use of the provisions of Rule 23 and gave
the excipient an opportunity to remove the cause of complaint.
[7]
He plaintiff then filed heads of
argument on the 08 of July 2024 and served a notice setting
the
matter down for the hearing of the exception on 10
th
October 2024.
REGULATORY
LEGAL FRAMEWORK
[8]
Rule 23(1)(a) of the Uniform Rules of Court provides that where a
party intends to
take an exception that a pleading is vague and
embarrassing such party shall, by notice, within 10 days of receipt
of the pleading,
afford the party delivering the pleading, an
opportunity to remove the cause of complaint within 15 days of such
notice; and the
party excepting shall, within 10 days from the date
on which a reply to the notice referred to in paragraph (a) is
received, within
15 days from which such reply is due, deliver the
exception.
[9]
There are two forms of exceptions namely, that the pleading is vague
and embarrassing.
In other words, the exception strikes at the
formulation of the cause of action or plea and another exception
could be taken on
the basis that the pleading lacks averments to
sustain a cause of action or defence. That means it its legal
validity is
in question
[1]
.
[10]
It is trite that an exception goes to the root of the entire claim or
defence and it is excipiable
if no possible evidence led in the
pleading can disclose or make out a cause of action or defence. In
Vermeulen
v Goose Valley Investments (Pty) Ltd,
Marais
JA stated the position as follows: “
It
is trite law that an exception that a cause of action is not
disclosed by a pleading cannot succeed unless it be shown that ex
facie the allegations made by a plaintiff and any other document upon
which his or her cause of action may be based, the claim
is (not may
be) bad in law
[2]
”.
[11]
Therefore, it is a well settled principle of our law that a party
cannot use exception as means
of complaining about a lack of
sufficient information for trial
[3]
.
Where a party wants to take an exception to a pleading on the basis
that it is vague and embarrassing, it is compulsory to afford
the
opponent an opportunity to remove the cause of complaint and the
provisions of Rule 23(1)(a) are peremptory in application
[4]
.
[13]
In terms of Rule 23(3) “
whenever
an exception is taken to any pleading, the grounds upon which the
exception is founded shall be clearly and concisely stated”.
The
sub-rule obliges the excipient to state in clear and concise terms
the particulars upon which his exception is passed and it
is not
sufficient to just state that the pleading discloses no cause of
action or is vague and embarrassing
[5]
.
An excipient is obliged to confine his complaint to the stated
grounds of his exception
[6]
.
[15]
In an exception, the excipient bears the onus to show both vagueness
amounting to embarrassment,
as well as embarrassment amounting to
serious prejudice
[7]
. In the
case of an exception that the pleading is vague amounting to
embarrassment and such embarrassment amounts to prejudice,
the
excipient bears the onus
[8]
. In
that instance, the pleading will be looked at as a whole to determine
if it goes to the whole cause of action or defence, which
must be
demonstrated to be vague and embarrassing
[9]
.
[16]
The court, in deciding an exception, is bound by the factual
allegations in the pleadings excepted
against
[10]
.
The court may allow the question to stand over for decision at the
trial court, especially in a case where the question to be
decided is
intertwined with the evidence that will be led at the trial
[11]
.
[17]
An exception that a pleading is vague and embarrassing will not be
allowed unless the excipient
will be seriously prejudiced if the
offending allegations were not expunged
[12]
.This
exception can therefore be taken only if the vagueness relates to the
cause of action
[13]
.
[18]
Where an exception is taken on the basis that a pleading lacks
averments that are necessary to
sustain a defence such an exception
will only succeed if the pleading does not justify the conclusion
drawn therein
[14]
.
[19]
A Court will, when adjudicating an exception to a pleading, consider
whether a party will be
prejudiced if the pleading is allowed to
stand. Such prejudice will exist if the excipient is unable to meet
his opponent’s
case properly due to the vagueness of the
pleading
[15]
.
[20]
A court has the discretion to stand over the decision on the
exception for trial where the exception
is bound up with the merits
of the dispute or where it raises a point of law
[16]
.
RULES
REGULATING PLEADINGS GENERALLY
[21]
In terms of Rule 18(4) of the Uniform Rules of Court every Pleading
shall contain a clear and
concise statement of material facts upon
which the pleader relies for his claim, defence or answer to any
pleading as the case
may be, with sufficient particularity to enable
the opposite party to reply thereto.
[22]
A cause, in terms of Rule 18(4), was interpreted
in Mckenzie v
Farmers co-operative Meat Industry Ltd
as meaning;
“
every fact
which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of
the Court. It does
not comprise every piece of evidence which is necessary to each fact,
but every fact which is necessary to be
proved
[17]
”.
[23]
By definition, pleadings are “
written
statements of the parties served by each party in turn upon the other
which must set out in summary form material facts
on which each party
relies in support of his claim or defence, as the case may be
[18]
”.
[24]
The object of the pleading is to define the issues so as to enable
the other party (and the court)
to know what case has to be met.
In
Phakula
v Minister of Safety and Security
,
the Supreme Court of Appeal explained the position as follows: “
It
is trite that the whole purpose of pleadings is to define the issues
between the parties, to confine the evidence of the trial
to the
matters relevant to those issues, and to ensure that the trial may
proceed to judgment without either party being disadvantaged
by the
introduction of matters not fairly ascertainable from pleadings. In
other words, a party should know in advance, in broad
outline, the
case that they will have to meet at the trial
[19]
”.
[25]
The extent or degree of particularity will depend upon the
circumstances of each case. A pleading
will be considered to contain
sufficient particularity if it identifies and defines the issues in
such a way that it enables the
opposite party to understand what they
are
[20]
. An exception is a
pleading and it must therefore comply with the provisions of Rule 18
regulating pleadings
[21]
.
APPLICATION
OF THE LEGAL PRINCIPLES TO THE FACTS
[26]
As I indicated earlier, the defendant raised two special pleas namely
failure to issue a notice
in terms of section 3(1) of Act no. 40 of
2002 and prescription of the excipient’s claim. Effectively the
special pleas raise
points of law for adjudication.
[27]
The effect of the exception raised by the excipient is that the
defendant’s special pleas
are vague and embarrassing and/or
lack averments which are necessary to disclose a defence.
[28]
During argument, the excipient’s counsel, Mr. Mati, was asked
why the defendant was not
given notice that the plea is vague and
embarrassing and afforded an opportunity to remove the cause of
complaint, in compliance
with the provisions of Rule 23(1)(a). He
responded that it was not necessary to do so in this matter because
the excipient does
not solely rely on that ground for the
conception. He further argued that there is an alternative
ground that the plea lacks
averments to sustain a defence and for
that reason, it was necessary to issue a notice to remove the cause
of complaint, prior
to filing the exception.
[29]
I respectfully disagree with the excipient’s argument in this
regard, in respect of the
excipient’s that the defendant
special pleas is vague and embarrassing. It should have, but failed
to comply with the peremptory
proviso and a condition precedent to
the step of taking an exception, which is that the opposite party
should be given to remove
the cause of complaint
[22]
.
The notice to remove the cause of complainant is mandatory when
an exception is taken on the ground that a pleading is vague
and
embarrassing. The purpose thereof is to afford the opposite party an
opportunity to consider the objection and, if possible,
effect an
amendment to it. It is only once such notice has been given
that an exception can be taken, and only if the other
party has
failed to take heed of the notice remove the cause of complainant, by
affecting an amendment that the excipient can file
an exception
[23]
.
What the plaintiff should have done, when faced with the uncertainty
regarding the construction of the averments in the defendant’s
plea and special plea, was to resort to the
provisio
to Rule23(1)(a) and seek clarification of the defendant’s
intention. My view in this regard is reinforced by the remarks
of
Howie J in
Callender-Easby
v Grahamstown Municipality
when he said “it seems to me that what the third party ought to
have done was to seek clarification of the defendant’s
intention, either by way of an appropriate request for particulars or
a notice referred to the proviso to Rule 23(1) concerning
vague and
embarrassing pleadings. What is clear is that the uncertainty
attaching to the pleader’s intention cannot avail
the third
party unless he shows that on either construction defendant’s
claim is excipiable
[24]
.
[30]
In
NKP
Kunsmisverspreiders (Edms) Bpk v Sentrale Kunsmis Korporasie (Edms)
Bpk
where a notice to remove the cause of complaint was not given at all,
an exception that the pleading is vague and embarrassing
was
dismissed for want of the notice
[25]
.
Even in the instant, matter the plaintiff has not given the defendant
the mandatory notice requiring it to remove the cause
of complaint in
its plea. This is despite that part of the exception part of the
falls under or is regulated by the provisions
of Rule 23(1)(a), which
requires a party that intends to take an exception on the ground that
a pleading is vague and embarrassing
to afford the other an
opportunity to remove the cause of complaint.
[31]
McCreath J
considered the meaning and scope of the basis of an
exception on the ground that a pleading is vague and embarrassing and
stated
the legal position as follows:
“
An exception to
a pleading on the ground that it is vague and embarrassing involves a
two-fold consideration. The first is
whether the pleading lacks
particularity to the extent that it is vague. The second is whether
the vagueness causes embarrassment
of such a nature that the
excipient is prejudiced…. as to determine whether there is
prejudice, the ability of the excipient
to produce an exception-proof
plea is not the only, nor indeed the most important test. If that
were the only test, the object
of pleadings to enable parties to come
to trial prepared to meet each other’s case and not be taken by
surprise may well
be defeated.
Thus it may be
possible to plead to particulars of claim which can be read in any
one of a number of ways by simply denying the
allegations made;
likewise, to a pleading which leaves one guessing as to its actual
meaning. Yet there can be no doubt that such
a pleading is excipiable
as being vague and embarrassing. It follows that averments in the
pleading which are contradictory and
which are not pleaded in the
alternative are patently vague and embarrassing; one can but be left
guessing as to the actual meaning
(if any) conveying by the pleading
[26]
”.
[32]
The then Appellant Division explained the function of an exception on
the ground that it lacks
the necessary averments to sustain a claim
or defence in the following manner:
“
It seems clear
that the function of a well-informed exception that a plea, or part
thereof, does not disclose a defence to the defence
to the
plaintiff’s cause of action is to dispose of the case in whole
or in part. It is for this reason that the exception
cannot be taken
to be part of the plea unless it is self-contained, amounts to a
separate defence, and can therefore be struck
out without affecting
the remainder of the plea……
It has been said that
the main purpose of an exception that a declaration does not disclose
a cause of action is to avoid the leading
of unnecessary evidence at
the trial. Save in exceptional cases, such as those where a defendant
admits to allegations but pleads
that as a matter of law the
plaintiff is not entitled to the relief claimed by him…….an
exception to a plea should
consequently also not be allowed unless,
if upheld, it would obviate the leading of unnecessary
evidence
[27]
”.
[33]
In my view the fact that the exception has been crafted to raise the
vague and embarrassing ground
and/or that the averments that are
necessary to sustain a defence are lacking, does not, and should not,
give a party latitude
or leeway to sidestep the strict application of
the provisions of Rule 23(1)(a). Otherwise the whole purpose of
having pleadings
crafted in a clear and concise manner, in accordance
with Rule 18(4), to enable the opposite party to understand and
respond thereto
accordingly would not be achieved. So a pleading
needs to be clear and concise so as not leave the opponent guessing.
Jansen AJA
in
Roberts Construction Ltd v Dominion Earthworks
Ltd
lucidly explained the position in the following words:
“
Whether the
alleged inference is justified or whether the conduct, if explicitly
so pleaded as being the basis of the alleged implied
contract of
agency, would suffice, is necessary to decide. The inquiry is not –
is there somewhere a cause of action wrapped
up in the particulars of
the plaintiff and further particulars? The inquiry relates to
embarrassment arising from the form of pleadings.
The plaintiff is
certainly not entitled to pleading a jumble of facts and force the
second defendant to sort them judiciously and
fit them together in an
attempt to determine the real basis of the claim
”. (fn
1968
(3) SA 255
(A) at 262H-263A.)
[34]
As is apparent from the authorities, the test to determine whether a
pleading is vague and embarrassing
is different from the one used to
determine whether it contains the necessary averments to sustain a
cause of action or defence.
It is therefore imperative, in my view,
that the two grounds be treated differently in the sense that the
exception taken on the
ground that it is vague and embarrassing must
be preceded by a notice prescribed in Rule 23(1)(a).
[35]
A notice affording the excipient an opportunity to remove the cause
of complaint was necessary
as it would have clarified the reason for
the embarrassment in clear and concise terms to enable it to deal
with the complaint
in the appropriate manner. It was ill-advised of
the excipient to ignore the defendant’s notice in terms of Rule
30 and 30A
of the Uniform Rules of Court in which he was notified
that he should have given the excipient prior notice of the cause of
complaint
and afford it an opportunity to remove it.
[36]
On receipt of that notice the excipient should have taken a step back
and re-considered its approach.
However, instead of doing so the
plaintiff decided to persist with the exception by filing heads of
argument and setting it down
for argument and thus affording no time
to the defendant to take further action, following the Rule 30 and
30A notice. In my considered
view, the taking of an exception without
affording the defendant to remove the cause of complaint, at least
for the part of the
exception that is considered to be vague and
embarrassing, was an ill-fated move and in contravention of the
peremptory provisions
of the clear provisions of Rule 23(3).
[37]
Secondly, the exception does not comply with the provisions of Rule
18(4) in that it does not
contain a clear and concise statement of
material facts upon which the excipient relied for the exception,
with sufficient particularity
to enable the defendant to respond
thereto. In this regard the defendant was left guessing as to which
part of its plea and special
plea vague and embarrassing and which
one lacks the necessary averments that are necessary to sustain a
defence. In my considered
view, that practice is completely bizarre
and should be discouraged by this court., as it encourages litigation
by ambush by the
relevant Rule, in particular, and by the Uniform
Rules, in general. On that basis, it follows that the exception is
irregular and
has no basis and should be dismissed.
[38]
On receipt of that notice the plaintiff should have taken a step back
and re-considered its approach.
However, instead of doing so the
plaintiff decided to persist with the exception by filing heads of
argument and setting it down
for argument and thus affording no time
to the defendant to take further action, following the Rule 30 and
30A notice. In my considered
view, the taking of an exception without
affording the defendant an opportunity to remove the cause of
complain, at least for the
part of the exception that is considered
to be vague and embarrassing, was an ill-fated move and in
contravention of the peremptory
provisions of the Rule.
THE NOTICE IN TERMS OF
SECTION 3 OF ACT 40, 2002
[39]
It is settled law that where an organ of state intends to object to
the validity of a claim lodged
against it on the ground that no
notice has been given to it in terms of section 3 of Act 40 of 2002,
the proper course of action
to take is either to object to the notice
in terms of the Act or to deliver a special plea. The delivery of the
special plea will
allow the plaintiff to file a replication in terms
of Rule 25. In such case there will be a proper ventilation of the
issues relating
to condonation
[28]
.
[40]
The purpose of the notice referred in section 3(1) of Act 40 of 2002
is well known and it is
to inform the Organ of the State of
sufficient particularity relating to the claim to enable it to
investigate the matter so that
a decision may be taken whether to
defend the claim
[29]
.
[41]
Non-compliance with section 3(1) and (2) is a jurisdictional fact
which cannot be waived by agreement
between the parties. Where there
has been non-compliance, an application for condonation should be
made by the affected party as
soon as is reasonably possible
[30]
.
[42]
In my considered view the defendant was well within its right to
raise non-compliance with the
provisions of section 3(1) of Act 40 of
2002 by way of a special plea, as it did. There is no better way to
do it and the light
of the defendant’s right to raise the
special plea of non-compliance with the provisions of section 3(1) of
Act np. 40 of
2002, the excipient’s exception thereto cannot be
understood. I can find no fault at all to the defendant’s
special
plea in this regard. There is nothing vague or embarrassing
in the special plea, either as alleged in the exception, or at all.
Nor is there anything that could be lacking in averments that are
necessary to sustain a cause of action.
[43]
All that the plaintiff should have done, on receipt of the special
plea, is to replicate in terms
of Rule 25 and to consider applying
for condonation. Therefore, the exception relating to non-compliance
with the provisions of
Act 40 of 2002 is without substance.
[44]
As far as the exception relating to the special plea of prescription,
section 17(2) of the Prescription
Act no. 68 of 1669 provides that “
a
party to litigation who invokes prescription shall do so in the
relevant document filed of record in the proceedings
[31]
”.
The proper way to raise prescription in a plea is by way of a special
plea
[32]
.
[45]
In this matter, the defendant, as a matter of right, raised
prescription as a special plea in
its plea. In that paragraph, the
defendant states that “
the plaintiff should have instituted
his claim within a period of three (3) years from September 2019 in
terms of the provisions
of
section 11
of the
Prescription Act No. 68
of 1969
”.
[46]
Again at paragraph 5 of the special plea, the defendant explains why
it is of the view that the
plaintiff’s claim has prescribed
when it states that “
the three (3) year period within which
the claim ought to have been instituted for damages reflected in
paragraphs 15 to 20, of
the Particulars of Claim expired on or about
September 2022
”.
[47]
At paragraph 6 the defendant gives an explanation or reason for its
assertion that the plaintiff’s
claim has prescribed as follows
“
the plaintiff instituted the action on 11 October 2023 way
after the period within which the claim ought to have been
instituted,
which is three years after the cause of action and the
debt became due.
[48]
The special pleas raised by the defendant, to which the excipient has
raised an exception, are
matters of law and are intertwined with the
merits of the plaintiff’s claim. Therefore, I am of the view
that a trial court
will be in a better position to deal with the
issues of prescription and failure to issue the requisite notice in
terms of section
(3)(1) of Act no. 40 of 2002.
[49]
In the circumstances the following order is made:
(a)
The exception is dismissed with costs.
T.A
NKELE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for the plaintiff:
Adv. Mati
Instructed
by:
CINGA NOHAJI INC
PLAINTIFF’S
ATTORNEYS
36 CHAMBERLAIN Road
Berea
East London
REF: CN/mm/0607/ln
Counsel
for the defendant:
Adv.
Tsama
Instructed
by:
State Attorney
Defendant’s
Attorneys
Old Spoornet Building
17 Feet Street
East London
Ref no. 779/23-P11 (Mrs
Tongo)
Dates
heard:
17 October 2024
Date
delivered:
19 November 2024
[1]
B.Neukircher, HR Fourie SC, LC Haupt SC High Court Motion Procedure
A Practical Guide page 1-33, Jowell v Brown-Jones and Others
1998
(1) SA 836
(W) at 898 -899.
[2]
2001 (3) SA 986
(SCA) para 7.
[3]
Motion Court Procedure page 1-33.
[4]
Motion Court Procedure 1-34, Rule 23(3)(a), LAWSA Vol 4 para 191
page 135,
Viljoen
v Federated Trust Ltd
1971
(1) SA 750 (O).
[5]
Herbstein & Van Winsen Vol 2 page 24-30, Erasmus D1-310G.
[6]
Alphina
Investments LTD v Blacher
2008 (5) SA 479
(CPD) at 483D-E, Erasmus Superior Court Practice
D1-298,
Feldman
NO v EM1 Music Publishers (Pty) Ltd
2010 (1) SA 1
(SCA) at 5A.
[7]
Motion Court Procedure page 1-35.
[8]
Erasmus D1-305.
[9]
Nel and Others NNO v MacArthur
2003 (3) SA 142
at 149F-H.
[10]
LAWSA Vol 4 para 193 page 136, Versluis v Greenbalt 1973 (2) SA 271.
[11]
LAWSA Vol.4 para 193.
[12]
Gallagher
Group Ltd v Tech Manufacturing (Pty) Ltd
2014 (2) SA 157
(GNP) at 166G-H.
[13]
Keely v
Heller
1904 TS 101
at 103. For a pleading to be construed to be vague a
reader must be unable to distil from a reading of it a clear and a
single
meaning. Also see
Venter
and Others v Barrit; Venter and Others v Wolfsberg Arch Investments
2 (PTY) Ltd
2008 (4) SA 639
(C) at 644B.
[14]
Erasmus D1-310A.
[15]
Pete Civil Procedure A Practical Guide 2
nd
Ed page 195, Oxford.
[16]
Herbstein & Van Winsen
ibid
page 24-40.
[17]
1922 AD 16
at page 23.
[18]
Van Ballen and another v ABSA Bank (22652/2022) [2024] ZAGPPHC 2
(3Janaury 2024) para 22
[19]
[2020] ZASCA 109
(23 September 2020) para 13, Erasmus ibid page
D1-228.
[20]
Phakula Judgment
ibid
para 13, Erasmus page D1-234.
[21]
Rule
33(3)
Joosub
v J I Case SA (Pty) Ltd
(now known as Construction Special Equipment Co (Pty) Ltd
1992 (2)
SA 665
(N) at 682 N - I
[22]
Erasmus D1-310C.
[23]
Gartner
& Another v University of Cape Town & 2 Other
[2021] 4 All SA 143
(WCC) at paras 23 -24, Herbstein & Van
Winsen 24 – 29 to 24 – 30.
[24]
1981 (1) SA 810
(E) at 812H-813A.
[25]
1973 (2) SA 680
(T) at 688C-E, Herbstein & Van Winsen
ibid
page 24-30, Rule 23(1).
[26]
1992(3)
SA 208 (T) at 211 A-F.
[27]
Barclays
National Bank Ltd v Thompson
1989 (1) SA 547
(A)N at 553G-I.
[28]
Cochrane
v City of Johannesburg
2011 (1) SA 553
(GSJ) at 559E-G.
[29]
See
HAL
obo MML v MEC for Health, Free State
2022 (3) SA 571
(SCA) para 183.
[30]
Minister
of Agriculture and Land Affairs v CJ Rance
(Pty) Ltd
2010 (4) SA 109
(SCA) at 118B, Erasmus page D11-6.
[31]
Erasmus D11-283.
[32]
Living
Hands (Pty) Ltd v Ditz
2013 (2) SA 368
(GSJ) at 392A-B,
Drennan
Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998
(3) SA 200
(SCA) 204A-B.